- - i.e., When the public performance right was initially granted, it was thought to encompass only "live," in-person performances. When it became clear that copyrighted works could be publicly performed by other means broadcast and, later, cable transmissions the law was clarified. The same is true today with respect to the distribution right. Transmission is a means of distribution of copies, just as it can be a means of performance. However, the differences of opinion summarized above underscore the need for clarification and legal certainty. The costs and risks of litigation to define more clearly the right and the time achieving such clarity would take would discourage and delay use of the NII. - b. RELATED DEFINITIONAL AMENDMENTS - The Working Group also recommends other related amendments to two definitions. TO "TRANSMIT" As explained above, under current technology, a copy of a work may be transmitted. However, the Copyright Act defines only what it is to transmit a performance or display of a work. Therefore, the Working Group recommends that the definition of "transmit" in Section 101 of the Copyright Act be amended to include a definition of a transmission of a reproduction.543 How to delineate between these types of transmissions is a difficult issue to resolve. The transmissions themselves hold no clues; one type often looks the same as the other during the transmission. If the transmitter intends to transmit a performance of the work, as well as to distribute a reproduction of it -- or if the receiver is able to hear or see 543 Under the proposed definition, to transmit a reproduction is to distribute it by any device or process whereby a copy or phonorecord of the work is fixed beyond the place from which it was sent. a performance of the work in the course of receiving a copy of it what rights are exercised by the transmission? A transmission could be a transmission of a reproduction or a performance or both. The resolution of these issues should rest upon the specific facts of the case. Such issues will typically be clarified between rightsholders and users in appropriate license arrangements. If confusion or disagreement exists in a specific context, the courts -- rather than Congress are in the better position to determine which, if any, exclusive rights are involved in a particular transmission. Courts regularly make such determinations in other cases where rights overlap." - 544 "PUBLICATION" The legislative history of the Copyright Act makes clear that "any form of dissemination in which a material object does not change hands... is not a publication no matter how many people are exposed to the work."545 Thus, a work that is only displayed or performed via the NII would not be considered published, no matter how many people have access to the display or performance, because a material object a copy of the work -- does not change However, in the case of transmissions of hands. 546 544 To delineate between those transmissions that are communications of performances or displays and those that are distributions of reproductions, one may look at both ends of the transmission. Did the transmitter intend to communicate a performance or display of the work or, rather, to distribute a reproduction of the work? Did the receiver simply hear or see the work or rather/also receive a copy of it? Did the receiver simply receive a copy or was it possible for her to hear or see it as well? License rates and terms will assist in determining the intent of the parties. 545 See HOUSE REPORT at 138 (emphasis added), reprinted in 1976 U.S.C.C.A.N. 5754. 546 See discussion supra pp. 28-32. The House Report also states, however, that the definition was intended to clarify that the offering of copies or phonorecords to a group of, for instance, wholesalers, broadcasters or motion picture theater operators constitutes publication if the purpose of the offering is "further distribution, public performance, or display." See HOUSE REPORT at 138, reprinted in 1976 U.S.C.C.A.N. 5754. Therefore, if an author offers copies reproductions, the recipients of the transmissions receive copies of the work (i.e., copies of the work have been distributed) -- although they may not have "changed hands" in the literal sense. Whether the transmission of copies of works is clearly within the scope of the distribution right is also a problem with respect to the act of publication by the transmission of copies. Indeed, the definition of "publication" incorporates the language used to describe the distribution right, which the Working Group's proposal amends. 547 Publication largely turns on whether the work has been distributed to the public. Thus, if copies of a work may be distributed to the public by transmission, then a work may be published by the transmission of copies to the public. Therefore, consistent with the proposed amendment of the distribution right, the Working Group recommends that the definition of "publication" in Section 101 of the Copyright Act be amended to recognize that a work may be published through the distribution of copies of the work to the public by transmission." The effects under the law of a work being considered published (rather than unpublished) generally are negative from the viewpoint of the copyright owner. Published works, for example: (1) must be deposited in the Library of Congress; (2) are subject to more limitations on the exclusive rights, including a broader application of fair use; to bulletin board system operators or others for further distribution, public performance or public display on a computer network, publication may occur. 547 Under the current law, the distribution right is identified as the right "to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending." See 17 U.S.C. § 106(3) (1988). Publication is "the distribution of copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending." See 17 U.S.C. § 101 (1988) (part of definition of "publication"). 548 Under the law of the United Kingdom, making a work available to the public by means of an electronic retrieval system constitutes publication. See Copyright, Designs and Patents Act of 1988, § 175(1)(b). (3) must meet certain author nationality or domicile requirements to be eligible for protection; and (4) must bear a copyright notice if published before March 1, 1989.5 However, the designation of works distributed to the public by transmission as published will be important in the case of works distributed first -- or solely -- on-line. The deposit requirement will aid in the preservation of those works, which otherwise might be updated or revised on-line, destroying -- or at least obscuring -- the original published versions. This may be particularly critical in preserving the scholarly and scientific record." Just as not all distributions of copies by transmission will constitute distributions to the public (and fall within the distribution right), not all transmissions of copies will constitute publication. Private e-mail messages would not be regarded as published." Neither would other restricted transmissions of copies, such as those in a typical corporate setting, where transmissions of copies within the company computer network are restricted as to further distribution. 552 However, as in the print environment, the distribution of copies to a small group under circumstances where further distribution is authorized would publish the work." 553 549 550 See supra notes 68-83 and accompanying text. In the print domain, prior published editions are more easily and generally available for reference, partially because of the deposit requirement, but primarily because subsequent versions do not override the originals -- which is possible in the on-line environment. 552 553 See discussion of the doctrine of limited publication supra pp. 31-32. See White v. Kimmell, 193 F.2d 744 (9th Cir. 1952) (unrestricted circulation of 200 copies of a manuscript to friends and acquaintances published the work); Continental Casualty Co. v. Beardsley, 253 F.2d 702 (2d Cir. 1958) (distribution of approximately 100 sets of forms to corporate officers and surety companies for possible purchase of more constituted publication). C. THE IMPORTATION PROVISIONS The Working Group also recommends that the prohibitions on importation be amended to reflect the fact that, just as copies of copyrighted works can be distributed by transmission in the United States, they can also be imported into the U.S. by transmission. If an infringing literary work, for instance, were physically shipped into the U.S. in the form of a paper copy, a CD-ROM disk or even stored on a memory chip, then it would be an infringing importation if the statutory conditions existed.554 Cross-border transmission of copies of copyrighted works should be subject to the same restrictions as shipping them by airmail. Just as the distribution of copies of a copyrighted work is no less a distribution than the distribution of copies by mail, the international transmission of copies of copyrighted works is no less an importation than the importation by airmail. Although we recognize that the U.S. Customs Service cannot, for all practical purposes, enforce a prohibition on importation by transmission, given the global dimensions of the information infrastructure of the future, it is important that copyright owners have the other remedies for infringements of this type available to them. Therefore, the Working Group recommends that Section 602 of the Copyright Act be amended to include importation by carriage or shipping of copies as well as by transmission of them. 2. PUBLIC PERFORMANCE RIGHT FOR SOUND RECORDINGS Transmissions of sound recordings will certainly supplement and may eventually replace the current forms of distribution of phonorecords. In the very near future, consumers will be able to receive digital transmissions of 554 See discussion of the importation right supra pp. 107-09. |