Copyright Review Commission Report - ICT Law and Regulation ...

4.2 DIGITAL COPYRIGHT LAW4.2.1. Traditional understandings of music performance, reproduction and distribution face new challenges in a worldof podcasts, webcasts and the streaming of music.4.2.2. The ‘analogue’ reproduction right is translated to the digital era with ease. The downloading of a work on amobile device is, for example, a reproduction and one of the exclusive rights reserved for the copyright owner.4.2.3. However, the digital transmission of copyright works on networks falls outside the traditional notion of ‘makingworks available to the public’ (performing, broadcasting and diffusion), and the interactive nature of digitaltransmissions exacerbates the problem.4.2.4. An additional factor that distinguishes the digital from the traditional, physical distribution of music is the‘incidental’ or ‘cached’ reproductions that are made while digital music travels to its final destination. (In the US,music publishers have demanded royalties for these ephemeral reproductions – see Day 2010 204-206; Cardi2007 at 855-856; Loren 2003 at 702-703.)4.2.5. To deal effectively with digital acts of exploitation, such as the uploading of a work to a server or the streamingof sound recordings, a new right, namely ‘communicating the work to the public’ was devised. In December1996, WIPO adopted two new treaties, the WIPO Copyright Treaty (WCT) and the WIPO Performances andPhonograms Treaty (WPPT), together commonly referred to as the ‘Internet treaties’.4.2.6. The WCT and WPPT entered into force in March 2002 and May 2001 respectively. Key aspects of thesetreaties are: the right of authors of literary and artistic works to authorise the communication of works to the public; the right of making available a performance and a phonogram; performers are granted moral rights; the management of rights information and the anti-circumvention provisions; and the extension of limitations and exceptions to the digital environment.4.2.7. The WCT and WPPT oblige members to provide legal remedies against the circumvention of technologicalmeasures to protect the rights of the copyright holders. Copyright owners are increasingly taking advantage oftechnical protection measures (TPMs) to protect their intellectual property. TPMs include: measures for access control and anti-copy devices; proprietary viewer software; encryption; passwords; watermarking; fingerprinting (user-authentication); metering and monitoring of usage; digital registration of the works at various institutions; and remuneration systems.- 29 -