Summary: Copyright Category Confusion

January 1, 1998


Neil J. Rosini

And Its Consequences: Online transmissions and the Rights of Exclusive Use Under Copyright

(Originally published in Entertainment and Sports Lawyer, a publication of the American Bar Association, 1998.)

Judicial decisions have established that widespread commercial copying via the Internet will not be countenanced no matter which category or categories of exclusive rights under copyright are said to be infringed. But the Copyright Act and the decisions which have attempted to apply it to the online environment, offer little guidance in determining which of the distinct exclusive rights under copyright are implicated by a range of online activities.

Congress (in the context of the Digital performance Right in Sound Recordings Act of 1995) has sidestepped the problem, and the international community at the 1996 WIPO Diplomatic Conference was not inclined to offer guidance either. The United States executive branch, while noting the problem in its White Paper, for its own reasons offered little by way of a legislative solution. And as a result of this confusion among exclusive categories of rights, both copyright owners and copyright users have little certainty about the types and sources of licenses required by common online activities, particularly when different exclusive rights are held by different persons for a given copyrighted work.

Solving this riddle is a daunting task. Anyone trying to apply existing categories of rights to online activities will find that technology is increasingly blurring the boundaries between those rights. Creating additional or substitute categories of rights or pursuing any other drastic alternative will be difficult, particularly because the stakes are so high. The results of that effort will determine who gets to collect fees for protected uses and what cost and trouble of obtaining clearances will need to be borne by technical innovators and content providers, all with wide-ranging effect and enormous financial consequences.