DATE: August 30, 1996
prepared by the Chairman of the Committees of Experts
on a Possible Protocol to the Berne Convention
and on a Possible Instrument for the Protection of the Rights of Performers and Producers of Phonograms
7.01 The author's right of reproduction in literary and artistic works has been laid down in Article 9 of the Berne Convention. According to paragraph (1) of that Article, "authors of literary and artistic works protected by this Convention shall have the exclusive right of authorizing the reproduction of these works, in any manner or form". The scope of the right of reproduction is already broad. The expression "in any manner or form" could not be more expansive in scope. It clearly includes the storage of a work in any electronic medium; it likewise includes such acts as uploading and downloading a work to or from the memory of a computer. Digitization, i.e. the transfer of a work embodied in an analog medium to a digital one constitutes always an act of reproduction.
7.02 Article 7 of the proposed Treaty contains a proposal on the scope of the right of reproduction laid down in Article 9 of the Berne Convention. It is proposed that Contracting Parties would agree on their understanding of the provisions in the Convention.
7.03 In paragraph (1) of the present draft, it is proposed that Contracting Parties would articulate their agreement that the right of reproduction in the Berne Convention includes direct and indirect reproduction, whether permanent or temporary, in any manner or form.
7.04 The first element in this provision is the explicit inclusion of direct and indirect reproduction. This language may already be found in Article 10 of the Rome Convention concerning the rights of producers of phonograms. The purpose of this provision in the proposed Article 7 is to make it clear that the exclusive right may not be diminished simply because of the distance between the place where an original work is situated and the place where a copy is mede of it. Recording from a broadcast or wire transmission is as relevant as copying locally from one cassette to another. Any form of remote copying that is made possible by a communication network between the original and the copy is intended to come within the reach of this provision.
7.05 The second element in the proposal is intended to clarify the widely held understanding that both permanent and temporary reproduction constitute reproduction within the meaning of Article 9(1) of the Berne Convention. The result of reproduction may be a tangible, permanent copy like a book, a recording or a CD-ROM. It may as well be a copy of the work on the hard disk of a PC, or in the working memory of a computer. A work that is stored for a very short time may be reproduced or communicated further, or it may be made perceptible by an appropriate device.
7.06 It is emphasized that both of these elements described in the preceding Notes are well within any fair interpretation of Article 9(1) of the Berne Convention.
7.07 According to paragraph (2) of the present proposal, it would be a matter for the legislation of Contracting Parties to limit the right of reproduction in the case of temporary reproduction of a work, in whole or in part, in certain specific cases, namely where the purpose of the temporary reproduction is solely to make the work perceptible or where the reproduction is of a transient or incidental nature. Moreover, the temporary reproduction must always take place in the course of use of the work that is authorized by the author or permitted by law. The purpose of this provision is to make it possible to exclude from the scope of the right of reproduction acts of reproduction that are not relevant in economic terms. By reference to Article 9(2) of the Berne Convention, the limitations are further confined to cases that pass the three-step test of that provision. 7.08 The European Community and its Member States proposed for the May 1996 session of the Committees of Experts (document BCP/CE/VII/1-INR/CE/VI/1) that the existing treaty language in the Berne Convention should not be modified. The European Community and its Member States also proposed that the following points should be included in the "Records of the Conference"/"General Report": "Contracting Parties confirm that the permanent or temporary storage of a protected work in any electronic medium constitutes a reproduction within the meaning of Article 9(1) of the Berne Convention. This includes acts such as uploading and downloading of a work to or from the memory of a computer."
7.09 The proposal by the European Community and its Member States received a positive reaction from many Government members of the Committees. In the discussions at the May 1996 session, several Delegations proposed that a provision with the same contents should be included in the proposed Treaty.
7.10 The proposal included in paragraph (1) of this Article 7 is in substantial conformity with the proposal of the European Community and its Member States. At the same time, it meets the proposals referred to above in the discussions of the Committees of Experts.
7.11 As further support for the proposal in Article 7 the following points may be made.
7.12 Technological developments have had a great impact on the means that may be used for reproduction. Complete and accurate reproductions may be made quickly and in such a way that the material reproduced resides only a short while in the memory of a computer. In some cases, a certain work or piece of data may never be reproduced as a whole in the memory of a computer; only those parts of the material that are necessary to achieve a certain result may be reproduced, for instance in order to make a work perceptible. In such cases, successive reproduction of portions of a work may, over a period of time, cover the whole work.
7.13 Some relevant uses may, now or in the future, become totally based on a temporary reproduction.
7.14 Today, the countries of the Berne Union may interpret the right of reproduction in different ways. Some countries may consider that temporary reproduction, at least some acts of reproduction the results of which live only a very short time, does not fall under the right of reproduction, whereas other countries may take a contrary interpretation.
7.15 The interpretation of a right of such importance as the right of reproduction should be in fair and reasonable harmony all over the world. A uniform interpretation is necessary. Already, the need for legal certainty and predictability has been felt and found lacking in concrete cases. The need for a uniform interpretation is dictated by the need to secure the functioning of the copyright system in a digital future.
7.16 The only way to harmonize effectively the interpretation of the scope of the right of reproduction is to confirm that temporary reproduction falls within the scope of the right.
7.17 It has been asserted in the discussions in the Committees of Experts that a reproduction right of wide scope might have some unintended and problematic effects. In principle, there are two ways to avoid such effects. The first is to narrow the definition of reproduction. The second is by way of limitations of the right. It seems that the countries of the Berne Union, having freedom of interpretation with respect to Article 9(1), have already excluded the first possibility. This leaves only the second option: designing a limitations clause that makes it possible to avoid any problematic and unintended effects.
7.18 The provisions proposed in paragraph (2) are intended to focus on incidental, technical, and in some cases technically indispensable instances of reproduction which form part of another authorized or otherwise lawful use of a protected work. The cases shall pass the three-step test of Article 9(2) of the Berne Convention.
Scope of the Right of Reproduction
(1) The exclusive right accorded to authors of literary and artistic works in Article 9(1) of the Berne Convention of authorizing the reproduction of their works shall include direct and indirect reproduction of their works, whether permanent or temporary, in any manner or form.
(2) Subject to the provisions of Article 9(2) of the Berne Convention, it shall be a matter for legislation in Contracting Parties to limit the right of reproduction in cases where a temporary reproduction has the sole purpose of making the work perceptible or where the reproduction is of a transient or incidental nature, provided that such reproduction takes place in the course of use of the work that is authorized by the author or permitted by law.
[End of Article 7]