NATIONAL INFORMATION INFRASTRUCTURE

6. EXCLUSIVE RIGHTS

The Copyright Act grants copyright owners certain exclusive rights that, together, comprise the bundle of rights known as copyright. (Limitations on the exclusive rights and infringement of the rights are discussed in subsequent sections. The fact that a particular use of a copyrighted work is said to implicate one or more of the rights, therefore, does not necessarily mean that such use is an infringement or unlawful.)

The exclusive rights of the copyright owner include --

(1) to reproduce the copyrighted work in copies or phonorecords;

(2) to prepare derivative works based upon the copyrighted work;

(3) 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;

(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; and

(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly.[1]

These rights, in most instances, have been well elaborated by Congress and the courts in both "conventional" and digital contexts. For the most part, the provisions of the current copyright law serve the needs of creators, owners, distributors, users and consumers of copyrighted works in the NII environment. In certain instances, small changes in the law may be necessary to ensure public access to copyrighted works while protecting the rights of the intellectual property owner.

a. THE RIGHT TO REPRODUCE THE WORK

The fundamental right to reproduce copyrighted works in copies and phonorecords[2] will be implicated in innumerable NII transactions. Indeed, because of the nature of computer-to-computer communications, it will be implicated in most NII transactions. For example, when a computer user accesses a document resident on another computer, the image on the user's screen exists -- under contemporary technology -- only by virtue of the copy that is reproduced in the user's computer memory. It has long been clear under U.S. law that the placement of copyrighted material into a computer's memory is a reproduction of that material (because the work in memory then may be, in the law's terms, "perceived, reproduced, or . . . communicated ... with the aid of a machine or device").[3]

The 1976 Copyright Act, its legislative history, the CONTU Final Report, and repeated holdings by courts make it clear that in each of the instances set out below, one or more copies is made:[4]

b. THE RIGHT TO PREPARE DERIVATIVE WORKS

The copyright law grants copyright owners the right to control the abridgment, adaptation, translation, revision or other "transformation" of their works.[7] A user who modifies -- by annotating, editing, translating or otherwise significantly changing -- the contents of a downloaded file creates a derivative work. Derivative works may also be created by transforming a work, such as an audiovisual work, into an interactive work.

c. THE RIGHT TO DISTRIBUTE COPIES

Before addressing issues raised by the distribution right in the context of the NII, it is necessary to understand its application and limitations with respect to conventional modes of exploitation and infringement.

The right to distribute legitimate copies of works is substantially circumscribed by the "first sale" doctrine:

Notwithstanding the provisions of section 106(3), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.[8]

This means that the copyright owner generally has only the right to authorize or prohibit the initial distribution of a particular lawful copy of a copyrighted work.[9] It is important to understand, however, that the distribution of an unlawfully made (i.e., infringing) copy will subject any distributor to liability for infringement.[10]

One court decision has construed the unauthorized downloading of digitized photographic images (whose reproduction was unauthorized) by BBS subscribers as "implicating" the distribution right.[11] The discussion in Playboy Enterprises Inc. v. Frena[12] reflects the reach of the distribution right with respect to infringing copies:

Public distribution of a copyrighted work is a right reserved to the copyright owner, and usurpation of that right constitutes infringement ... [Playboy Enterprise's] right under 17 U.S.C. [[section]]106 to distribute copies to the public has been implicated by Defendant Frena [the BBS operator]. Section 106(3) grants the copyright owner "the exclusive right to sell, give away, rent or lend any material embodiment of his work." There is no dispute that Defendant Frena supplied a product containing unauthorized copies of a copyrighted work. It does not matter that Defendant Frena claims it did not make the copies itself.[13 ]

The court may not have focused on the reproduction right, apparently because of its uncertainty whether the operator of the bulletin board system could itself be held to have reproduced a work that was (a) uploaded by one subscriber[14] and (b) downloaded by another. (As discussed below, the BBS operator publicly displayed the works by the same conduct, and was found liable by the court for infringing the display right.)

Whether the litigants in Playboy put the issue properly in dispute or not, the right to distribute copies of a work has traditionally covered the right to convey a possessory interest in a tangible copy of the work. Indeed, the first sale doctrine implements the common law's abhorrence of restraints on alienation of property by providing that the distribution right does not generally prevent owners of lawfully made copies from alienating them in a manner of their own choosing.[15] It is clear that a Frena subscriber, at the end of a transaction, possessed a copy of a Playboy photograph, but it is perhaps less clear whether, under the current law, Frena "distributed" that photograph and whether Frena or the subscriber "reproduced" it (and, if the latter, whether current law clearly would have made Frena contributorily liable for the unauthorized reproduction).[16]

In a similar case, Sega Enterprises Ltd. v. MAPHIA,[17] a court, on a motion for a preliminary injunction, made findings of fact regarding (a) the use of a bulletin board system to "make and distribute" copies of copyrighted video games, (b) the "unauthorized copying and distribution" of the games on the bulletin board, and (c) the profits made by the defendant from the "distribution" of the games on the bulletin board. The court's conclusions of law held that the reproduction right was infringed but apparently did not reach a like conclusion with respect to the distribution right.

d. THE RIGHT TO PERFORM THE WORK PUBLICLY

The public performance right is available to all types of "performable" works -- literary, musical, dramatic, and choreographic works, pantomimes, motion pictures, and other audiovisual works -- with the exception of sound recordings.[18] While some have urged that many, if not all, NII transactions be characterized as "performances," it is important to understand:

A distinction must be made between transmissions of copies of works and transmissions of performances or displays of works.[22] When a copy of a work is transmitted over wires, fiber optics, satellite signals or other modes in digital form so that it may be captured in a user's computer, without the capability of simultaneous "rendering" or "showing," it has rather clearly not been performed. Thus, for example, a file comprising the digitized version of a motion picture might be transferred from a copyright owner to an end user via the Internet without the public performance right being implicated. When, however, the motion picture is "rendered" -- by showing its images in sequence -- so that users with the requisite hardware and software might watch it ]with or without copying the performance, then, under the current law, a "performance" has occurred.

The "public" nature of a performance -- which brings it within the scope of copyright -- is sufficiently broadly defined to apply to multiple individual viewers who may watch a work being performed in a variety of locations at several different times. Courts have repeatedly imposed public performance infringement liability upon entities that, for example, develop novel modes of delivering motion picture performances to customers and advance novel legal arguments as to why their performances are not "public."[23] Therefore, in the context of the NII, the fact that performances and displays may occur in diverse locations and at different times will not exempt them from the public performance and public display rights.

e. THE RIGHT TO DISPLAY THE WORK PUBLICLY

The right to display a work publicly is extremely significant in the context of the NII. To display a work means to "show a copy of it, either directly or by means of a ... television image, or any other device or process ..."[24] The complex analyses to determine whether a particular transmission might amount to a "distribution" or a "performance" are rarely necessary in this context. The definition of "display" clearly encompasses, for instance, the actions of the defendant BBS operator in the Playboy case.[25[ Thus, when any NII user visually "browses" through copies of works in any medium (but not through a list of titles or other "menus" that are not copies of the works),[26] a public display of at least a portion of the browsed work occurs. A display is "public" on the same terms as a performance is "public"; therefore, many NII uses would appear to fall within the law's current comprehension of "public display."[27] Whether such acts would be an infringement would be determined by separate infringement analyses.

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