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During the preparatory work, an agreement was reached in the WIPO committees that the transmission of works and objects of neighboring rights on the Internet and in similar networks should be subjected to an exclusive right of authorization of the owners of rights, with appropriate exceptions, of course.


There was, however, no agreement on which one should be chosen of the two main candidates: the right of communication to the public and the right of distribution.


The need for the application of one or both of those rights emerged because, although it was recognized that reproductions take place throughout any transmissions in digital networks, the application of the right of reproduction alone did not seem to be sufficient. It would not correspond to the extremely dynamic nature of Internet-type networks, and, furthermore, it alone would not offer a satisfactory and readily enforceable basis for the liability of those who make available to the public works and objects of neighboring rights in such networks.


"Making available works and objects of neighboring rights to the public in an electronic network." This seems to be a more or less precise description of the act - or series of acts - which should be covered by appropriate rights. Thus, the idea may emerge to simply recognize such a right to cover such acts.


We are not, however, completely free here. We do not act in a tabula rasa situation. We cannot get rid of the categories, rights and exceptions included in existing treaties and laws. We cannot forget that well-established practices are based on the existing categories, rights and exceptions, and that, on the basis of them, longterm contractual relations have been formed, and so on.


Thus, it is quite normal that, both at national level and at the level of international norms, there is quite a general wish to try to apply existing norms to this new phenomenon. In this respect, we have to face the reality that, at the level of the existing international norms, there are no such broad economic rights as the right to make available to the public. (It is another matter that the concept exists in a different context; see the role of the (first) making available of a work to the public in the calculation of the term of protection of certain works under Article 7(2) and (3) of the Berne Convention. And it is still another matter that some national laws provide for such broad rights.{27})


At the international level, and under the majority of national laws, the acts of making available a work or an object of neighboring rights to the public are covered by two separate groups of rights: copy-related rights and non-copy-related rights.


Copy-related rights (such as the right of distribution, the right of rental or the right of public lending (where recognized)) cover acts by means of which copies are made available to the public, typically for "deferred" use, since the act of making available and the perception (studying, watching, listening to) of the signs, images and sounds in which


{27} For example, the "recht vanopenbaarmaking" in Article 12 of the Copyright Act of the Netherlands or the general "access right" provided for in Article 2O(2)(h) of the Spanish Copyright Act.


208            COLUMBIA-VLA JOURNAL OF LAW & THE ARTS            [21:3-4


a work is expressed or which are embodied in an object of neighboring rights (that is, the actual "use") by the members of the public differ in time.


Non-copy-related rights (such as the right of public performance, the right of broadcasting, the right of communication to the public by wire), on the other hand, cover acts through which works and objects of neighboring rights are made available for direct - that is not "deferred" - use (perceiving, studying, watching, listening to) by the members of the public.


Digital transmissions scramble the beautifully arranged, dogmatically duly characterized and justified picture of these two families of rights. They scramble it in two ways.


First, it seems that the commercial dissemination of protected material in digital networks will take place with the application of technological measures which will allow access only if certain conditions are met by the members of the public. It is foreseen that, for example, so-called "software envelopes" will be used.{28} Such an electronic "envelope" contains certain information freely available to the public, without technological protection, such as encryption (hence, its similarity to traditional envelopes on which some information appears but the contents of the letter are only available to the person who has the right to open it). The information identifies the material and the owner of the rights, and indicates the licensing conditions. First, of course, the member of the public who would like to get access to the material should give his subscription number or, in open systems, for example, his credit card number. Then he may study the menu of possible uses indicated on the "envelope." He may learn that at least to a certain extent, he does not have to pay anything for browsing or, perhaps, he has to pay a minimum service charge; that for being able to further study the material, to watch still or moving images or to listen to music or other sounds included in the material, he has to pay a certain amount of money; that for downloading the material on a more permanent basis he has to pay more. Thus, the actual extent of the use is not determined at the moment of making available (uploading) and is not determined by the person or entity alone who or which carries out the act of making available. It is the given member of the public, who, through his "virtual negotiation" with the system, determines the extent of use, and whether the use will be "deferred" (through obtaining a more than transient copy) or direct (such as studying an on-line database, watching on-line moving images, listening to on-line music).


Second, with digital transmissions, some hybrid forms of "making available" emerge which do not respect the pre-established border between copy-related and non-copy-related rights. It is also sufficient to refer to the fact that on-line uses in such digital systems do involve - as an indispensable step - obtaining temporary copies.


It is, therefore, not a surprise that when the study started on the question of which existing rights might be applied to cover digital transmissions, the various countries did not find themselves necessarily on the same side of the copy-related rights/non-copy-related rights border. Two major trends emerged: one trying to base the solution on the


{28} For a description of this method and similar methods, see Intellectual Property and the National Information Infrastructure, (Report of the Working Group on Intellectual Property Rights of the Information Infrastructure Task Force, Bruce A. Lehman, Chair, Assistant Secretary of Commerce and Commissioner of Patents and Trademarks, Washington, D.C., Sept.1995), at 183-190.


1997]            THE WIPO "INTERNET" TREATIES            209


right of distribution and the other one preferring some general communication to the public right (both combined, however, with the application of the good old right of reproduction, where appropriate).


The United States seems to favor the first option,{29} while, for example, the European Community (after a brief adventure with the idea to apply the right of rental){30} appears to prefer the latter.{31}


It is not by chance why this or that country favors this or that solution. The responses very much depend on the existing national laws - which rights, and to what extent are granted - on the practices established, the positions obtained on the basis of those laws, and, as a consequence, on the related national interests involved.


When it became clear that the international copyright community was faced with two basic options - the application of the right of reproduction along with the right of distribution, or the application of the right of reproduction along with a right to communication to the public - and, of course, also with the further possibility of combining these options somehow - it was soon recognized that the application of those options was not so easy, and certainly not something which would only require a simple decision and then the rest would be arranged automatically.


First, the present concepts of distribution and communication to the public may not be applied directly without some important clarification. As far as distribution is concerned, in many countries, its concept closely relates to the transfer of property and/or possession of tangible copies. Thus, if the right of distribution is applied, it should be accepted and clarified that distribution through reproduction via transmission - that is, making available copies by making such copies, through transmission of electronic signals, in the receiving computers and/or by their terminals (such as printers) - is also covered by the concept of distribution. Similar clarifications are needed regarding the concept of communication to the public. First of all, it should be accepted and clarified that the concept extends not only to the acts that are carried out by the communicators, the transmitters themselves (that is, to the acts as a result of which a work or object of neighboring rights is actually made available to the public and the members of the public do not have to do more than, for example, switch on the equipment necessary for reception), but also to the acts which only consist of making the work or object of neighboring rights accessible to the public, and in the case of which the members of the public still have to cause the system to make it actually available to them. Further clarification was needed of the notion of the "public," more precisely in respect to what is to be considered to be made available (accessible ) "to the public." It had to be made clear that on-demand "transmissions" are also covered.


Second, as far as the international norms were concerned, the said clarifications were not sufficient, since, for example, the Berne Convention does not provide for a right of distribution for all categories of works, but only for cinematographic works (see Articles 14(l)(i) and 14bis(1)), and, although the coverage of the right of communication to the


{29} Id. See the draft bill at the end of the report included in the Appendix.


{30} See Green Paper: Copyright and Related Rights in the Information Society (Comm'n of the European Communities, July 1995), document COM(95)382 final, at 56-59.


{31} See Proposal of the European Community and its Member States, WIPO document BCP/CE/VII/l -INR/CE/VI/1. at 3.


210            COLUMBIA-VLA JOURNAL OF LAW & THE ARTS            [21:3-4


public (see Articles 11(1)(ii), 11bis(1), 11ter(ii), 14(1)(ii) and l4bis(1)) is broader, it still does not extend to all categories of works in all forms. In order for any of the above-mentioned solutions to work, the gaps in the international norms had to be eliminated; the coverage of the rights involved had to be completed.


Third (and this seemed to be for a long while the most difficult problem), it was found that it would be difficult for various countries to go along with a specific solution which would not recognize as legitimate any alternative solution. At the same time, however, it was also recognized that there was quite general agreement on which acts should be covered by exclusive rights, and that the differences only related to the specific legal characterization of those acts.


Therefore, a compromise solution was proposed: namely, that the act of digital transmission should be described in a neutral way, free from specific legal characterization (for example, as making available a work to the public by wire or by wireless means, for access); that such a description should not be technology-specific and, at the same time, it should express the interactive nature of digital transmissions in the sense that it should go along with a clarification that a work is considered to be made available "to the public" also when the members of the public may access it from different places and at different times; that, in the legal characterization of the exclusive right - that is, in the actual choice of the right or rights to be applied - sufficient freedom should be left to national legislation; and, finally, that the gaps in the Berne Convention in the coverage of the relevant rights - the right of communication to the public and the right of distribution - should be eliminated.


This solution was referred to as the "umbrella solution." Since this is well-known in the international copyright community,{32} it would not be appropriate to try to plead "not guilty" and not to admit that this solution was originally worked out and named in this


{32} See, e.g.. Paul Geller, Conflicts of Law in the Cyberspace in THE FUTURE OF COPYRIGHT IN A DIGITAL ENVIRONMENT (P. Bernt Hugenholtz ed. 1996). Geller writes the following: "Dr. Ficsor has proposed an 'umbrella-type provision' for a Berne Protocol which would leave 'the legal qualification,' that is, the characterization of rights covered in the provision, to national legislation. Thus, while obligated to protect copyright in global networks, Berne countries would he free to determine whether such rights as reproduction, public performance, communication to the public, or distribution, or any combination of such rights, should come into play in specific cases. Necessarily, to formulate the umbrella provision, so that it encompassed any and all such rights, Berne drafters would have to resort to abstract, open-ended notions such as 'making works available to the public,' whether in material or immaterial forms, or 'network dissemination.' Courts could, in turn, only give such notions concrete meaning by interpreting them to require adequate means of redress relative to unauthorized uses in global networks that a Beme protocol might, but need not, specify with more or less precision. This proposal has the advantage of side-stepping current and, to my mind, rather scholastic debates about the 'nature' or 'essence' of rights appropriate to enabling authors and their successors in interest to control such network dissemination. These debates nonetheless seem inevitable as long as diverse legal cultures conceptualize rights differently," Id. at 42. Kaoru Okamoto (who was the head of the Delegation of Japan throughout the preparatory work on the two treaties), at the SOFTIC Symposium '95, made particularly flattering coments on the "umbrella solution": "Given (the] different approaches taken in different countries, what is called 'umbrella solution' is now discussed and sought by a number of countries. This solution was proposed by Dr. Ficsor of WIPO, one of the distinguished guests of this symposium, and I do not know how I can admire his wisdom with which he has figured out this splendid idea. This is an approach as has been explained by Dr. Ficsor, to stipulate in a treaty, for example, that authors should enjoy an exclusive right of authorizing the act of making the works available and accessible to the public by any means, while giving each country the choice of the kind of right to he applied for this purpose." SOFTIC Symposium '9S: Problems of Intellectual Property Rights in the Context of Information Networks. Proceedings (SOFTIC publication, Tokyo, 1996), at 26.


1997]            THE WIPO "INTERNET" TREATIES            211


(perhaps, not the most fortunate way) by the author of this paper. It was presented for the first time at a copyright conference in Sidney in January l995,{33} and then it was further developed at various meetings, particularly at the WIPO World Forum on the Protection of Intellectual Property in the Information Society (Naples, October 1995).{34}


The WCT applies this "umbrella solution" in a specific way. Since the countries which preferred the application of the right of communication to the public as a general option seemed to be more numerous, the Treaty first extends the applicability of the right of communication to the public to all categories of works, and then clarifies that that right also covers transmissions in interactive systems described in a legal-characterization-free manner. This is included in Article 8 of the Treaty which reads as follows: "Without prejudice to the provisions of Articles 11l(1)(ii), 11bis(1)(i) and (ii), 11ter(1)(ii), 14(1)(ii) and 14bis(1) of the Beme Convention, authors of literary and artistic works shall enjoy the exclusive right of authorizing any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access these works from a place and at a time individually chosen by them." As a second step, however, when this provision was discussed in Main Committee I, it was stated{35} - and no delegation opposed the statement - that Contracting Parties are free to implement the obligation to grant exclusive right to authorize such "making available to the public" also through the application of a right other than the right of communication to the public or through the combination of different rights as long as the acts of such "making available" are fully covered by an exclusive right (with appropriate exceptions). By the "other" right, of course, first of all, the right of distribution was meant, but a general right of making available to the public as provided for in Articles 10 and 14 of the WPPT, discussed below, might also be such an "other" right.


The validity of the above-quoted statement may not be questioned, not only because it was not opposed by any delegation participating in the Diplomatic Conference,{36} but also because it is in harmony with an age-old practice followed by the member countries of the Berne Union in the application of the various rights granted by the Convention (the compatibility of which practice with the Beme Convention is considered obvious), namely that the legal characterization of a right - the choice of the applicable right -is frequently not the same under national laws as under the Convention.


{33} Mihaly Fjcsor, Digital Technology and Copyright in COPYRIGIIT IN THE ASIA-PACIFIC REGION: REFROGRAPHY AND DIGITAL COPYING (Copyright Agency Limited publication, Sidney, 1995), at 147-152.


{34} Mihaly Fjcsor, International Harmonization of the Protection and Management of Copyright and Neighboring Rights in WIPO WORLD FORUM ON THE PROTECTION OF INTELLECTUAL CREATIONS IN THE INFORMATION SOCIETY (WIPO publication, No. 751(E), 1996), at 139. See also Miha1y Ficsor, International Harmonization of Copyright and Neighboring Rights in WIPO WORLDWIDE SYMPOSIUM ON COPYRIGHT IN THE GLOBAL INFORMATION INFRASTRUCTURE, (WIPO publication No. 746(E/S), 1995), at 375-377; Information Networks and the International Harmonization of Copyright in the SOFTIC Symposium '95, supra note 32, at 171-199; Mihaly Ficsor, Towards a Global Solution: The Digital Agenda of the Berne Protocol and the New Instrument: The Rorschach Test of Digital Transmissions, supra note 4, at 123-137.


{35} The minutes of the Diplomatic Conference will reflect that the statement was made by the Delegation of the United States of America. See 301 of document CRNR/DC/1O2.


{36} For the role of unopposed declarations by individual countries in the interpretation of treaties and for the precedents in the history of the Berne Convention, see item 4.19 of Ricketson, supra note 3, at 141-142.


212            COLUMBIA-VLA JOURNAL OF LAW & THE ARTS            [21:3-4


For example, in certain countries,{37} the right of public performance covers not only those acts which are referred to in the provisions of the Berne Convention as public performances of works{38} but also the right of broadcasting and the right of communication to the public which, under the Berne Convention, are separate rights. In other countries, the right of communication to the public is a general right covering all the three categories of rights mentioned.{39} Still in other countries, it is the right of broadcasting which also covers communication to the public by wire.{40} The acceptability of such differing legal characterizations of acts, of course, depends on whether or not the obligations to grant a minimum level of protection for the acts concerned are duly respected. If' for example, the right of broadcasting were extended to acts which, under the Berne Convention are qualified as communication to the public by wire ("cable-originated programs") and a compulsory license were also applied to the latter act, citing the fact that Article 11bis(2) of the Berne Convention allows such licenses for broadcasting, this would be in clear conflict with the Berne Convention which does not allow such licenses for "cable-originated programs."{41}


In the case of the right of distribution, the WCT also eliminates the gaps existing in the Berne Convention. Article 6(1) of the WCT provides for an exclusive right to authorize the making available to the public of originals and copies of works through sale or other transfer of ownership, that is, an exclusive right of distribution.

As mentioned above, under the Berne Convention, it is only in respect to cinematographic works that such a right is granted explicitly. According to certain views, such a right, surviving at least until the first sale of copies, may be deduced from the right of reproduction as an indispensable corollary of that right, and, in some legal systems such a right is actually recognized on such a basis.{42} Other experts are, however, of a different view and many national laws do not follow the solution based on the concept of implicit recognition of such a right. Therefore, that provision of the WCT should he considered, as a minimum, a useful clarification of the obligations under the Berne Convention (and also under the TRIPs Agreement which includes by reference the relevant provisions of the Convention) but probably it is more justified to consider that provision as a Berne-plus-TRIPs-plus element.


Article 6(2) deals with the issue of the exhaustion of the right of distribution. It does not oblige Contracting States to choose national/regional exhaustion or international exhaustion - or to regulate at all the issue of exhaustion - of the right of distribution alter the first sale or other first transfer of ownership of the original or a copy of the work (with the authorization of the author). It goes without saying, however, that digital delivery of copies is not, and should not be, covered by any exhaustion of the right of distribution, since the ownership of the copy which is uploaded actually is not


{37} For example, in France (Article L.122-1 of the Law on the Intellectual Property Code) and in the United States of America (Articles 101 and 106(4) of the Copyright Law).


{38} See Articles 11(1)(i), 14(l)(ii) and l4bis(1).


{39} For example, in Colombia (Articles 12(c) and 76(d) of the Copyright Law).


{40} For example, in Nigeria (Article 39(1) of the Copyright Decree).


{41} For the status of cable-originated programs, see Annotated Principles of Protection of Authors, Performers, Producers of Phonograms and Broadcasting Organizations in Connection with Distribution of Programs by Cable, COPYRIGHT (monthly review of WIPO), Apr.1984, at 142-149.


{42} For example, in the well-known French system.


1997]            THE WIPO "INTERNET" TREATIES            213


transferred; the distribution takes place by reproduction of new copies through transmission.


From the viewpoint of the application of the "umbrella solution," the agreed statement adopted by the Diplomatic Conference concerning Article 6 (on the right of distribution; see above) and Article 7 (on the right of rental; see below) may be considered relevant.


The agreed statement reads as follows: "As used in these Articles, the expressions 'copies' and 'original and copies,' being subject to the right of distribution and the right of rental under the said Articles, refer exclusively to fixed copies that can be put into circulation as tangible objects." The question may emerge whether or not this agreed statement is in conflict with the "umbrella solution," and, particularly, whether or not it excludes the application of the right of distribution for transmissions in digital networks. The answer to this question is obviously negative. The agreed statement determines only the minimum scope of application of the right of distribution; it does not create any obstacle for Contracting States to go beyond that minimum.


On the other hand, the provision included in Article 3 of the draft of the WCT concerning the notion and place of publication, and the discussion on that provision at the Diplomatic Conference, emphasized that the application of the right of distribution for digital transmissions is a legitimate option. Paragraph (3) of the Article contained the following draft provision: "When literary and artistic works are made available to the public by wire or wireless means in such a way that members of the public may access these works from a place and at a time individually chosen by them, so that copies of these works are available, Contracting States shall, under the conditions specified in Article 3(3) of the Berne Convention, consider such works to be published works." It should be noted that the text to which emphasis has been added is the same as the description of interactive on-demand transmissions in digital networks included in Article 8 of the WCT on "communication to the public." This made it clear that such "making available of works," at least in certain cases, may result in a copy-related act: making available of copies, a synonym of distribution of copies. The provision included in Article 3 of the draft Treaty finally has not been adopted. The reasons for that, however, were not related to anything which would have questioned the possibility of copy-related forms of "making available of works."{43}


The WPPT applies the "umbrella solution" in a more direct way. Its Articles 10 and 14 provide for a specific right of "making available to the public," an act which is described practically in the same way as the interactive on-demand transmissions in digital networks are described in Article 8 of the WCT. Article 10 reads as follows: "Performers shall enjoy the exclusive right of authorizing the making available to the public of their performances fixed in phonograms, by wire or by wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them." Article 14 provides essentially the same right for producers of phonograms.


The concept of "communication to the public" as defined in Article 2(g) of the WPPT does not extend to such "making available." The right of broadcasting and communication to the public (in Article 6 and 15) and the right of distribution (in Articles 8 and 12,


{43} Mainly drafting problems were discussed and the fact that the draft provision was in conflict with Article 3(3) of the Berne Convention.

214            COLUMBIA-VLA JOURNAL OF LAW & THE ARTS            [21:3-4


in a way similar to Article 6 of the WCT) are provided for separately. The freedom of Contracting States in respect to the legal characterization of the acts covered and the choice of the right(s) actually applied seems, however, the same as under the WCT.


It should also be noted that the Diplomatic Conference adopted an agreed statement which was intended to address the issue of liability of service and access providers and of "common carriers" in respect to transmissions in interactive, on-demand networks. It reads as follows: "It is understood that the mere provision of physical facilities for enabling or making a communication does not in itself amount to communication within the meaning of this Treaty [the WCT] or the Berne Convention. It is further understood that nothing in Article 8 [of the WCT] precludes a Contracting Party from applying Article 11bis(2)."


The agreed statement states something obvious, since it has always been evident that, if somebody carries out an act other than an act directly covered by a right provided for in the Convention (and in corresponding national laws), he or she has no direct liability for the act covered by such a right. It is another matter, that, depending on the circumstances, he may still be liable on the basis of some other forms of liability, such as contributory or vicarious liability. Liability issues are, however, very complex; the knowledge of a very large body of statutory and case law is needed in each country so that a given case may be judged. Therefore, international treaties on intellectual property rights, understandably and rightly, do not cover such issues of liability. The WCT follows this example (and this is, of course, also true of the WPPT).



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