1 H.R. REP. NO. 101-735, 101st Cong., 2d Sess. 7 (1990), reprinted in 1990 U.S.C.C.A.N. 6935, 6938 (report accompanying legislation granting copyright owners of computer software an exclusive rental right).

2 Sony, supra note 361, at 430-31.

3 See discussion of the Constitutional purpose of copyright supra pp. 19-23.

4 Sony, supra note 361, at 431.

5 See supra p. 13.

6 See discussion supra pp. 70-73.

7 In contrast, a "standard" distribution of a copy necessarily divests the distributor of his copy. In the case of a distribution by transmission, the distributor generally retains his copy of the work and a reproduction is distributed.

8 It has been suggested that recognition of distribution by transmission may diminish the public performance right. However, if a work is publicly performed by transmission, then there has been a public performance -- whether or not the distribution right is or is not also involved. The fact that some transmissions may constitute a reproduction and distribution of copies to the public does not mean that transmissions that constitute public performances are not public performances. The scope of the public performance right is not diminished by the recognition that a transmission may fall within the scope of the distribution right. If a copy of a motion picture is transmitted to a computer's memory, for instance, and in the process, the sounds are capable of being heard and the images viewed as they are received in memory, then the public performance right may well be implicated as well. See 17 U.S.C. § 101 (1988) (definition of "perform").

9 The exclusive rights, "which comprise the so-called 'bundle of rights' that is a copyright, are cumulative and may overlap in some cases. Each of the five enumerated rights may be subdivided indefinitely, and . . . each subdivision of an exclusive right may be owned and enforced separately." HOUSE REPORT at 61, reprinted in 1976 U.S.C.C.A.N. 5674.

10 See discussion supra pp. 45-47.

11 HOUSE REPORT at 61, reprinted in 1976 U.S.C.C.A.N. 5674.

12 See discussion supra pp. 28-32. The term "public" as used in connection with the distribution right is not coincident with the meaning assigned to that term in connection with the public performance or public display right.

13 If copies of works are offered to the public -- even though they may be distributed one copy at a time -- it would likely constitute distribution to the public. See 17 U.S.C. § 101 (1988) (definition of "publication"); 1 NIMMER ON COPYRIGHT § 4.04 at 4-20.

14 In the future, transmission may become the conventional means of distribution.

15 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.

16 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.

17 See HOUSE REPORT at 138 (emphasis added), reprinted in 1976 U.S.C.C.A.N. 5754.

18 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 to bulletin board system operators or others for further distribution, public performance or public display on a computer network, publication may occur.

19 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").

20 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).

21 See supra notes 68-83 and accompanying text.

22 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.

23 See discussion supra pp. 28-32.

24 See discussion of the doctrine of limited publication supra pp. 31-32.

25 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).

26 See discussion of the importation right supra pp. 107-09.

27 Some transmissions that clearly constitute public performances may, in effect, substitute for distributions in the future. If consumers are offered a service through which they can receive a performance of any sound recording at any time, they may stop buying phonorecords. The market for distributed phonorecords may shrink to include only the providers of that service to consumers.

28 If the copyright owners of sound recordings abused the exclusivity that the law should provide, the solution would lie in the enforcement of the antitrust laws -- where the music licensing problems have been addressed -- not in the reduction of rights under the Copyright Act.

29 See S. 227, 104th Cong., 1st Sess. (1995); H.R. 1506, 104th Cong., 1st Sess. (1995).

30 See discussion supra pp. 73-82.

31 The legislative history makes it clear that digital uses are generally not encompassed by Section 108: "Under this exemption, for example, a repository could make photocopies of manuscripts by microfilm or electrostatic process, but could not reproduce the work in 'machine-readable' language for storage in an information system." HOUSE REPORT at 75, reprinted in 1976 U.S.C.C.A.N. 5689; Senate Report at 67 (emphasis added). The Senate Report also speaks precisely of "the photocopying needs of . . . multi-county regional systems." Id. at 70 (emphasis added).

32 The Working Group believes that replacement copies may be digital in nature, and may be made under this provision only when an unused replacement is not available in either digital or analog form.

33 See, e.g., Section 53D of the Australian law (privilege conditioned on copyright owner's abstention from market for Braille edition); Section 18 of the Finnish law (Braille editions and talking books may be manufactured "for use by lending libraries for blind persons"); Section 80 of the Portuguese law (Braille editions may be manufactured if not for profit).

34 The visually impaired were the only users with a disability who provided comments or testimony concerning a need for a narrow exemption to ensure the availability of literary works in a usable form. By its recommendation of such an exemption for the visually impaired, the Working Group does not intend to dismiss the possibility that other disabled users may have needs of which it has not been made aware and, therefore, has not considered.

35 See discussion of criminal offenses supra pp. 126-28.

36 See discussion of the LaMacchia case supra p. 127.

37 As noted earlier, the idea/expression dichotomy and the limitations on the exclusive rights, including fair use, address First Amendment concerns. See supra pp. 32-35, 73-100 and note 227. See also Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 560 (1985) ("First Amendment protections [are] embodied in the [Copyright] Act's distinction between copyrightable expression and uncopyrightable facts and ideas, and the latitude for scholarship and comment traditionally afforded by fair use").

38 Legislation of a similar type has been introduced with respect to technological protection of audiovisual works. See, e.g., S. 1096, 102d Cong., 1st Sess., 137 Cong. Rec. S. 6034 (1991); H.R. 3568, 101st Cong., 1st Sess., 135 Cong. Rec. H. 7924 (1989).

39 Copies of the work in the marketplace free from copyright protection could be freely reproduced (and, in fact, the lower distribution costs of the NII may encourage increased availability of public domain works). Further, technological protection that restricts the ability to reproduce the work by technical means does not prevent reproduction by other means (such as quoting, manually copying, etc.).

40 However, the Working Group does encourage the equipment manufacturing and copyright industries to work together on bilateral solutions for other types of recording devices and categories of works. In response to a request from Congressional leaders, representatives of the motion picture industry and the consumer electronics industry are presently drafting a joint legislative proposal addressing legal and technical measures pertaining to consumer recording of motion pictures. This proposal would set forth a technical means to be applied that would respect the legitimate commercial expectations of copyright owners and the reasonable and customary copying practices of consumers.

41 Some have suggested that while manufacturers will surely know the primary purpose of the devices they produce, they may inadvertently find themselves liable for devices which they intended for legal purposes, but which have the incidental effect of circumventing copyright protection systems. For a manufacturer to find himself in this situation, the device would have to fail to be used primarily for the purpose for which it was sold, and be primarily used, to the surprise of its manufacturer, for defeating protection systems. It is likely that such a situation would occur rarely, if ever. (It would be self-defeating for copyright owners to begin using a protection system that an existing device could defeat.) However, the chapter contains an "innocent violation" provision for just such a case. A court would have the ability to reduce or eliminate altogether any damages for which the manufacturer would otherwise be liable, to avoid an unfair result but still protect the copyright owner.

42 17 U.S.C. § 1002(c) (Supp. V 1993).

43 47 U.S.C. § 605(e)(4) (1988).

44 See NAFTA, supra note 446, at art. 1707(a). The NAFTA also requires parties to make it a civil offense to "receive, in connection with commercial activities, or further distribute, an encrypted program-carrying satellite signal that has been decoded without the authorization of the lawful distributor of the signal or to engage in any activity prohibited under [the criminal provisions]." See NAFTA, supra note 446, at art. 1707(b).

45 See Copyright, Designs and Patents Act of 1988, Part VII, § 296.

46 Other information that may become important to the efficient operation of the NII includes the country of origin of the work, the year of creation or first publication, a description of the work, the name and other identifying information of licensees and standardized codes.

47 While a transmitting entity may not remove the copyright management information, if such information is not included in the normal course of the transmission (such as when a work in digital form is broadcast through analog transmission), no violation would occur.

48 For criminal liability, both knowledge and the intent to defraud are required.

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