The Constitutive Requirements Of Traditional Reproduction Behavior

Published Date: 02 Nov 2017

Right of reproduction is an exclusive right which conferred explicitly to authors of works in all countries. According to Article 9(1) of Berne Convention, 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 right of reproduction is the core right of the legitimate interest, since the mainly use of the right of reproduction is to copy the work. Generally, in the sense that if reproduction is equal to reappear the works, then any activities such as translation, adaption, sound or broadcasting could be regarded as reproduction. However, traditional Copyright Law only defined special reappear of works as reproduction, while other manners of reproduction are adjusted by other copyrights regulations. For example, only those reproduction, which do not create new works would be regarded as "reproduction", if the original works are developed and therefore create something new, then such "reappear" are regulated by the derivative work right area. While in network environment, many usages of works are possibly concerning the "reappear" of works, here the question is which of them constitute reproduction of works in Copyright area and under the regulation of reproduction right? The answer of this question is the basis of answering the subsequent list of questions, like the responsibilities of both the users and the network services providers. This part of essay will start with the constitution of the traditional reproduction of works, after that, we will discuss the application of relevant reproduction legislations in the network environment.

1. The constitutive requirements of traditional reproduction behavior.

As mentioned in above, not all reappear of works in facts will be regarded as reproduction in Copyright law, only those reappear with special conditions would be regarded as reproduction in law and adjust within the area of right of reproduction. After summarizing the law of Copyrights in different countries, it finds out that the foundation of constituting "reproduction" which it must be an fixed works finished on tangible carriers.

Fixed works which done on tangible carriers are the most fundamental difference between reproduction and other reappearance behaviors (such as performance, broadcasting and shows).It could not be possible be regarded as reproduction under Copy right law to those reappearance behaviors finishing without tangible carriers. For example, only perform in a recital manner after memorizing other people's works does not constitute reproduction in Copyright law, since it does not result in reappearing on an tangible carrier, no matter memorize or recital.

Copyrights laws in many countries have regulated explicitly that the constituting requirements of reproduction must be done on tangible and physical carriers . Section 106 of U.S. Copyright Act, "the author of a work of visual art shall have the right--to prevent the use of his or her name as the author of any work of visual art which he or she did not create", at the same time in Section 101, the Act defines "Copies" are "material objects, other than phonorecord, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term "copies" includes the material object, other than a phonorecord, in which the work is first fixed." The "object" herein means tangible material carrier. In the Article L122-3 of Intellectual Property Code in France, "Reproduction shall consist in the physical fixation of a work by any process permitting it to be communicated to the public in an indirect way. It may be carried out, in particular, by printing, drawing, engraving, photography, casting and all processes of the graphical and plastic arts, mechanical, cinematographic or magnetic recording". Although the code does not state explicitly "physical carrier", use the word "physical fixation", imply the fixation must be done on physical carriers.

Under the copyright law in some countries, there no explicit words such as "physical fixation" or "object", but they rather use the copies of works to be regarded as the constitution requirements of reproduction. Under Article 16 (1) in Germany Law on Copyright and Neighboring Rights (as amended July 16, 1998), " The right of reproduction is the right to make copies of the work by whatever method and in whatever quantity. " Under the Article 13 of Italian Copyright Statute, " The exclusive right of reproduction concerns the multiplication of copies of the work in all or in part, either direct or indirect, transient or permanent, by any means or in any form, such as copying by hand, printing, lithography, engraving, photography, photography, cinematography, and any other process of reproduction." Under the Article 10 Section 1 (5) of Copyright Law of The People's Republic of China, "the right of exploitation and the right to remuneration, that is, the right of exploiting one's work by means of reproduction, performance, broadcasting, exhibition distribution, making cinematographic, television or video production, adaptation, translation, annotation, compilation and the like, and the right of authorizing others to exploit one's work by the above-mentioned means, and of receiving remuneration therefor." Copy could only be the physical carrier of fixed works. In the "agreement statement" concerning Article 6 &7 of WIPO Copyright Treaty, "the expressions 'copies' and "original and copies," being subject to the right of distribution and the right of rental under the said Articles, refer exclusively to fixed copies that can be put into circulation as tangible objects."

It have to be fixed works on those relatively stable and permanent tangible objects when producing the copies of works. For example, Printing textbooks in printing house is a typical reproduction behavior, since printing fixed the works on tangible physical carriers - paper, to be an work which is tangible copies - textbooks. what's more, such fixation is pretty stable and permanent. Conversely, there would be no reproduction if works do not fix on tangible physical objects stable and permanently. For example, broadcasting live concert by TV station does not constitute reproduction in the area of copyright law, although the broadcast action makes the musical works and the voice of singers reappear via idiot box. Although it seems that the idiot box is a kind of physical carrier of the works, in fact, the song singing which was only playing immediately via TV loudspeaker, it is not "fixed" on the idiot box, there will be no longer song will be singing via the idiot box if the singer stop singing. There some scholars think that, after the development of radio broadcasting technology, it could be copied in a no-carrier-added manner when facing with no-carrier-added live shows, which is called "without recording" live rebroadcast. U.S. Copyright Act have regarded unauthorized retransmitted actions as a violation of reproduction rights.

No matter how different the definitions of reproduction within countries, the manners which "fix" the pieces of works and the categories of "physical carriers" are limited before the development of computers and networks. the manners of "fixed" only limited to printing, duplicating, coping, monotype, recording, picture recording, photographic films and so on. Therefore, it is easy in traditional copyright law to define whether a reappearance piece of work in a traditional manner constituting "reproduction" in copyright law, and adjust to the right of reproduction.

2. Reproduction behaviors in digital environment

The appearance and widespread use of personal computer made the first huge strike on the reproduction right of traditional copyright law. It is because the manner of reproduction, including software, via computer is a special electronic reproduction of computer, and the object that carrying pieces of works are new types of carriers such as floppy-disks, drives, CDs and it is never faced by the traditional copyright law. Whether such new manners of "fix" and carrier constituting fundamental requirements of reproduction under the traditional copyright law and whether the law could adjust to the change have become a problem needed to be solved.

Copyright Acts in many countries do not make a exhaustive list of reproduction manner and thus it is flexible, however, since the technical particularity of computer, there should an clear statues or case law if integration of new electronic manner of reproduction is needed. If those copy, which makes software saved permanently in new types of carriers such as floppy-disks, drives or CDs, could be adjusted within the justification of reproduction right, then the question mentioned in the last paragraph could be solved. Such new copy behaviors will be adjusted within the justification of reproduction rights by some countries through judicial interpretations or case law when defining "reproduction" in an elastic manner. For example, according to section 2(1) Copyright Act 1994, New Zealand defines "copying" as "any description of work, reproducing, recording, or storing the work in any material form (including any digital format), in any medium and by any means". When discussing whether have to amend the definition of copy, so that the behaviors which digitalization of works via "scan" could be integrated clearly into the scope of "copying", most of experts thought the definition of "copying" under the current Copyright Law is according with the requirement of "substantial non-infringing use", the current rules, " in any medium and by any means " are sufficient to cover computer drives and any other storage mediums, therefore, there is no need to amend the definition of "copying".

While for those countries who define reproduction in a enumerate way, they choose to amend Copyright Law correspondently or to draft specific regulations. Under Section 17(2) of Copyright, Design and Patents Act 1988, UK states specially that "Copying in relation to a literary, dramatic, musical or artistic work means reproducing the work in any material form. This includes storing the work in any medium by electronic means." As to Australia, although it defines in an elastic way, in order to make sure the clarity, section 21(1a) are specially added when amending the Copyright Act, which is " For the purposes of this Act, a work is taken to have been reproduced if it is converted into or from a digital or other electronic machine-readable form, and any article embodying the work in such a form is taken to be a reproduction of the work. Note: The reference to the conversion of a work into a digital or other electronic machine-readable form includes the first digitization of the work."

However, the Copyright Law still not be able to solve all kinds of copying problems caused by computer technology at that time. During the run procedure, all software will step automatically into Random Access Memory (RAM) , consequently, the software will be stored temporarily as a whole or fragments within RAM. Once turn off the computer or operate new order, the information which have stored temporarily in RAM will be disappeared,. Such transient save is different from traditional copy which could make the pieces of work stably and permanently fix on physical carriers, therefore, it was called "transient reproduction" or "transient copy" at that time.

It was hugely controversial as to whether such transient copy constituting reproduction under traditional copyright law. the issue here is whether such supremely transient reappearance accords with the "fix" requirement under the copyright law. Because under the under the previous technical conditions, the ways of "fix" were the fix which were able to make the pieces of work save permanently, unless the carriers were suffering physical degradation or natural loss (such as decay of paper or words on the textbook were vanished by some special chemical formula). While the copying in RAM could only make the pieces of works be saved in a supremely short period, therefore, the digital information will be deleted automatically without manufacture interfere, there are notably differences between two copy.

Under the previous technical conditions, the realistic significance to discuss the problem of copying within RAM is: if the copy, which formed during the operation of the software, defining as the copy under the scope of copyright law, then, it would be under the control of copyright law if the end users use pirated software, since the operation of software in the computer will inevitably lead software enter into RAM and constitute copying behavior. Thomas J. had been points out in the SPA's Legal Guide to Doing Business on the Internet that, it constitutes "copy" under copyright law if any digitalized information which enjoying copyright and then enter into RAM. Some case law in American and UK have confirmed it would constitute "copy" under the law of copyright once the pieces of work enter into RAM, as in the case MAI v. Peak. According to this theory, it will possible to violate the reproduction right if any user operate the software without authorization, since it will be inevitably enter into RAM and thus constitute copy when operating the software.

There are 2 Acts to combine explicitly between the copy in RAM with reproduction right, which are Directive on the Legal Protection of Computer Programs (1990) and Copyright, Designs and Patents Acts(1988). Article 4 of Computer Program Directives (1990) states:

"(a) the permanent or transient reproduction of a computer program by any means and in any form, in part or in whole. Insofar as loading, displaying, running, transmission or storage of the computer program necessitate such reproduction, such acts shall be subject to authorization by the right holder;

(b) the translation, adaptation, arrangement and any other alteration of a computer program and the reproduction of the results thereof, without prejudice to the rights of the person who alters the program;

(c) any form of distribution to the public, including the rental, of the original computer program or of copies thereof. The first sale in the Community of a copy of a program by the right holder or with his consent shall exhaust the distribution right within the Community of that copy, with the exception of the right to control further rental of the program or a copy thereof." While under the article 17 of UK Copyright Law (1988), not only section 2 regulates that copying includes "storing the work in any medium by electronic means" but also emphasizes on section 6 that " copying in relation to any description of work includes the making of copies which are transient or are incidental to some other use of the work". Therefore, "transient copy" in RAM is covered in practice.

However in fact, the main objects of fighting against piracy are people those who producing and selling pirated software, since the it is hard to identify the identity of end users and the user of pirated software has limited compensated capacity. Even though the main objects should be those end users, since using the pirated software is on the premises of installing the software into the computer, under this circumstances, the such installation is obviously permanent copy, therefore, commercial installation of pirated software is bound to violate reproduction right. Therefore, the problem of pirated software used by end users could be partly solved. The arguments concerning "transient copy" within RAM was able to turn aside temporarily.

The arguments concerning the controversial questions becoming more and more important with the arise of internet. New manners of fixing the pieces of work on physical carriers permanently have been arise with the development of network technology, for examples, uploading a piece of work will fix the work on network server drive and form copies of works, same as downloading a piece of work to personal computers will fix the work on the hard disk of computer and form copies of work. No matter define "copying" in which way, both upload and download fit perfectly with the requirements of "copy". Copy is defined by making list under China's Copyright of Law (2001), and neither upload nor download are included. In the case, JX v. XiangLi, which concerning uploading works without authorization, according to the common constitutive requirements of copy, Beijing No. 1 Intermediate People's Court decided that uploading works of other people without authorization should be regarded as copy and such behavior had been constituted violation of reproduction right of the plaintiff.

However, transient copy is also existing within network environment. The most typical one is "browse", which means users enjoy the digitalized works in the network environment via internet, including reading e-book online, watching pictures online, listening to music or watching films online. At this time, digital works will be entered into RAM of computer automatically and form transient copy. The previous information in RAM will be disappeared automatically once turn off the computer or the computer exercise other instructions. "Browse" can also lead to another special "transient copy": when a user browse a same web page or same online information many times, some soft for netting will "drawing" automatically a special buffer in hard disk, the online pieces of works which are going to be browse will be stored into buffer in forms of transient documents, to form transient copies. Such soft for netting will transfer the information from the buffer to speed up if the user login the same web page or browse the same piece of work. And such soft netting will delete the relevant information of this webpage automatically if the user do not browse the same webpage for a long time.

If the works be browsed spreading without authorization, then certain influences will be caused by such "browse" to the interest right of owner. It would be impossible for people to purchase or pay for appreciating works in the tangible market if the web user could read books, listen to the music or watch movies on line for free at any time. At the moment, plenty of websites offered pirated music or online film for free, to attract many users to browse the webpage, it is especially popular in China. The right of owner hope such behaviors could be under the control of the copyright law. Therefore, the unsolved problem of "transient copy" is highlighted again in this network times, triggering researches and discussions all over the world.

3. Comparison of Legislations and Legal Practice in Different Countries

3.1 America

As the most developed software and digital industry in the world, U.S.A. has been providing the strongest safeguard to copyright in the network environment, concerning the question of "transient copy" in RAM, the government is partial to the right of owner.

3.1.1. The White Paper and other Legislative Proposals

Subjected to sections 107 of Copyright Act(1978), "the owner of copyright under this title has the exclusive rights to reproduce the copyrighted work in copies or phonorecord". According to section 101,"Copies" are "material objects, other than phonorecord, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term 'copies includes the material object, other than a phonorecord, in which the work is first fixed". At the same time, the Act define under which circumstances a work is "fixed" : "in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is "fixed" for purposes of this title if a fixation of the work is being made simultaneously with its transmission." However, it is unclear for the Act to answer the problem of whether "transient copy" of work within RAM which caused by "browse" would constitute "copy" under this Act.

In 1995, the report of The Working Group on Intellectual Property Rights, which released by U.S." Information Infrastructure Task Force" (The White Paper), stated that:

The fundamental right to reproduce copyrighted works in copies and phonorecord 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 con-transient 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").

The White Paper points out that: One or more copies will be made under the following situations:

• When a work is placed into a computer, whether on a disk, diskette, ROM, or other storage device or in RAM for more than a very brief period, a copy is made.

• When a printed work is "scanned" into a digital file, a copy -- the digital file itself -- is made.

• When other works -- including photographs, motion pictures, or sound recordings -- are digitized, copies are made.

• Whenever a digitized file is "uploaded" from a user's computer to a bulletin board system (BBS) or other server, a copy is made.

• Whenever a digitized file is "downloaded" from a BBS or other server, a copy is made.

• When a file is transferred from one computer network user to another, multiple copies generally are made.

• Under current technology, when an end-user's computer is employed as a "dumb" terminal to access a file resident on another computer such as a BBS or Internet host, a copy of at least the portion viewed is made in the user's computer. Without such copying into the RAM or buffer of the user's computer, no screen display would be possible.

The last situation listed in The White Paper actually means "browse", while the first situation in fact means "transient copy" within RAM. The White Paper hold the example "browse" to prove "reproduction right happens in network environment usually" - "when a computer user accesses a document resident on another computer, the image on the user's screen exists -- under con-transient technology -- only by virtue of the copy that is reproduced in the user's computer memory."

The White Paper claims, " When a work is placed into a computer, whether on a disk, diskette, ROM, or other storage device or in RAM for more than a very brief period, a copy is made." Facing with such fundamental problem, there is only one sentence in The White Paper to answer, that is, the copies of works in RAM could be" perceived, reproduced, or . . .communicated . . . with the aid of a machine or device", maybe it reflect the American jurisprudence's pragmatic way of thinking to some extent. One of the most controversial issue is about the meaning of "browse" proposed by The White Paper. It's proposal failed to become legislations at the end since The White Paper was overruled by U.S. congress.

Some domestic scholars and organizations presented their tit-for-tat point of views with the release of The White Paper. One of the typical view was come from the testimony of Robert L. Oakley when drafting the NII Copyright Clarification and Technology Education Act of 1997. According to Professor Robert, the definition of "right of reproduction" under sec. 106 should be amended and added one more detail, that is, " the ephemeral reproduction of a work in transient computer memory or digital storage, which is incidental to the otherwise lawful use of that work, and which does not lead to the making of a permanent reproduction, is not a copy. This language is intended to apply only to necessary and incidental reproduction of digital works in connection with their use on computer systems. It will have no application to situations in which permanent electronic copies, such as those made on a computer's disks (or other permanent or semi-permanent storage media) are made. "

After this testimony, Robert's point of view was adopted by the U.S. Congress in the discussion of both 2 Copyright Amendments: Digital Era Copyright Enhancement Act, Digital Copyright Clarification and Technology Education Act of 1997. Under the title of "limitations on exclusive rights: Computer programs and digital copies", Sec 6 of Digital Era Copyright Enhancement Act rules out the following 2 types of copying do not constitute infringement to make a copy of a work in a digital format: "(1) is incidental to the operation of a device in the course of the use of a work otherwise lawful under this title; and (2) does not conflict with the normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author ". However, all of these two Acts were overruled by the Congress. Therefore, there is still no clear provisions as to "transient copy" within RAM by far in U.S. Copyright Act.

3.1.2 MAI v. Peak

MAI v. Peak is an significant case law to solve whether "transient copy" into RAM constitute copyright infringement. The service of Peak Computer, Inc. includes maintenance and repair their client's computers which manufactured by MAI, in order to diagnose the machine, Peak technicians need to operate the computer and its operating system software, during the operation process, The Software will have a data exchange with RAM, thus constitute "transient copy" within RAM. The issue of the case is whether the representation of the operating software was permanent enough to constitute "copy" under §101 of the Copyright Act. The Ninth Circuit's hold that:

"By showing that Peak loads the software into the RAM and is then able to view the system error log and diagnose the problem with the computer. MAI has adequately shown that the representation created in the RAM is "sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. the loading of copyrighted computer software from a storage medium (hard disk, floppy disk, or read only memory) into the memory of a central processing unit ("CPU") causes a copy to be made. In the absence of ownership of the copyright or express permission by license, such acts constitute copyright infringement." We find that this conclusion is supported by the record and by the law."

It is thus clear for the court to judge that the "transient copy" within RAM when operating a software is accordance with the definition of "copy" under Copyright Act. The case has significant impact on Copyright's theory and judicatory practice in the days to come. In my opinion, "transient copy" within RAM is almost same as "fleeting". This judgment of this case in fact is to look at whether there is factual effect of the software or whether the software has been utilized when loading of copyrighted software into RAM, in order to measure whether such copy within RAM is "fleeting". Although the judgment is stand by the U.S. Copyright Office, it is totally a disorder of logic concerning casual relationship. According to Section 104 Report, which released by the U.S. Copyright Office, 'Unless a reproduction manifests itself so fleetingly that it cannot be copied perceived or communicated , ' otherwise, it satisfies the requirement of "fixed". In fact, it is also to look at whether the software has been utilized when loading of copyrighted software into RAM, to measure whether such copy within RAM is "fleeting". This measurement would have not been strongly disputed until the following case, Cable News Network v. Cartoon Network. The

3.1.3 Cable News Network v. Cartoon Network

This case was triggered by the legitimacy of web-video. With the development of technology and for convenience, more and more TV audience prefer to use digital video recorders (DVRs), rather than cassette (VCRs), to record TV they like and watch them back when they have time. Comparing to traditional cassette, DVRs usually save the recorded programming on an internal hard drive. Common DVRs produced by many cable companies are stand-alone single devices, while the defendant, Cablevision, in this case promoted a new " Remote Storage DVR System " (RE- DVR). Under this system, those users who without a stand-alone DVR are able to record cable programming on the "remote" hard drives managed by Cablevision, with the aid of a remote control and the RS- DVR software, RS- DVR users could play back programs. However, Cablevision operate this system without authorization of any TV program providers. The plaintiff herein this case is the owner of many copyrighted shows, TV programs, sued Cablevision on the grounds that the defendant had directly violated their reproduction right and public performance right.

The court found that:

Generally, common cable companies would signed contract with TV programs providers and then aggregate the programs provided into a single stream of date, transmitting those programs into their clients via coaxial cable in a real time. While under the Cablevision's RS-DVR system, Under the new RS-DVR, this single stream of data is split into two streams. The first is routed immediately to customers as before. The second stream flows into a device called the Broadband Media Router ("BMR"), id. at 613, which buffers the data stream, reformats it, and sends it to the "Arroyo Server," which consists, in relevant part, of two data buffers and a number of high-capacity hard disks. The entire stream of data moves to the first buffer (the "primary ingest buffer"), at which point the server automatically inquires as to whether any customers want to record any of that programming. If a customer has requested a particular program, the data for that program move from the primary buffer into a secondary buffer, and then onto a portion of one of the hard disks allocated to that customer. As new data flow into the primary buffer, they overwrite a corresponding quantity of data already on the buffer. The primary ingest buffer holds no more than 0.1 seconds of each channel's programming at any moment. Thus, every tenth of a second, the data residing on this buffer are automatically erased and replaced. The data buffer in the BMR holds no more than 1.2 seconds of programming at any time. While buffering occurs at other points in the operation of the RS-DVR, only the BMR buffer and the primary ingest buffer are utilized absent any request from an individual subscriber.

According to this finding, therefore, the key to decide whether there's a violation of reproduction right to the plaintiff is whether such short time data buffer in BMR constitute "copy" under Copyright Act.

The district court deems that during the process of saving data within "primary ingest buffer" and other data buffer, Cablevision copied the copyrighted works, therefore, Cablevision had constituted direct infringement of plaintiff's reproduction right under Copyright Act.

While the 2nd Circus Court hold a different judgment with the district court. The appeal court pointed out that: according to the Copyright Act, "Copies are material objects . . . in which a work is fixed by any method . . . and from which the work can be . . . reproduced", meanwhile, the Act also emphasis to add that a work is "'fixed' in a tangible medium of expression "when its embodiment . . . is sufficiently permanent or stable to permit it to be . . . reproduced . . . for a period of more than transitory duration." The appeal court deems that: this formulation of Act has clearly presented that in order to defined a "fixed" work, it has to satisfy both two independent but related requirements at the same time: the embodiment requirement: "the work must be embodied in a medium, i.e., placed in a medium such that it can be perceived, reproduced, etc., from that medium"; and the duration requirement: "it must remain thus embodied "for a period of more than transitory duration. While no matter the district court in this case or the previous report released by the Copyright Office, had mistakenly deemed the only measurement of "copy" was to see whether the data within RAM is cable of being reproduced or not, such judgment is only satisfied the embodiment requirement of the Act, but ignore the duration requirement.

The appeal court also indicates that: The data buffer in the BMR holds no more than 1.2 seconds of programming at any time, what's more, during the operation of buffer, each point was covered automatically by the subsequent data quickly. Therefore, the facts of the case has proved sufficiently that the work was represented for only a transitory duration within buffer thus did not satisfied the "duration requirement". In accordance with the definition of "copy" under the Copyright Act, there is no copies was produced during the buffer process when operating the RS-DVR system. It was held that there is no violation of reproduction right by Cablevision.

It is proper to hold that those transitory representation do not constitute "copy" under the Copyright Act, however, the appeal court indicated at the same that: In MAI case, the software is storing in RAM during operation, it would not disappear until the user turn off the computer, it implies that it is possible to constitute copy under Copyright Act as long as those data of work remained in the computer for an enough long period of time. However, this point of view seems is hard to establish, otherwise, it would be hard to measure the length of time to satisfy the duration requirement. The subsequent analysis in this essay points out that: no matter how long will the data remain in RAM, for example, a picture display on the screen of the computer and not turn off the computer, it do not constitute the meaning of copy under the Copyright Act even though the computer would store this picture into RAM automatically.

3.1.4 Parker v. Yahoo

Besides the two cases analyze above, Parker v. Yahoo is also the case relating "transient copy". The plaintiff Parker published two registered works on the web and they are free to browse on Parker's website , Yahoo republished the "cached" works on its website and provided to its users without Parker's authorization. Parker sued Yahoo, and one of Parker's grounds was contributory infringement, because users would constitute direct infringement view the cached works after they search Parker's works on the defendant's search engine. The court deemed that the original attempt of Parker should be: the net users has directly infringed Parker's copyright when temporarily storing documents during the browsing process. While such transient copy is sure to happen in order to browse websites.

The court's opinion to this problem is: Parker provides his works to the public online for free while no measures, such as online register, were adopted to restrict web surfing, which purported an implied consent of Parker to allow the users to browse the content his works and even a collateral copy when surfing.

The implied consent is reasonable to be established by court. Because it would be unreasonable if the owner provided his copyrighted work to the public for free on the one side, while on the other side the owner claimed the "transient copy" caused by users when online reading has violate his reproduction right. However, the issue of "transient copy" within RAM here in this case is more complicated. Because in Parker's claim, that the infringement was not caused by the user surfing his own website but was caused by the user surfing the cached work appeared on Yahoo. Meanwhile, Parker alleged that it constitute infringement when Yahoo produced cached work and provided to the public without Parker's authorization, in fact, Parker deemed it is surfing the pirated works which constituted violation. Therefore, implied consent is not suitable here to this situation. While the court have not a deep analysis on this point.

3.2 The European Union

The EU also considers "transient copy" constitutes reproduction under legislation. However, the threshold that such "copy" would constitute violation is relatively higher.

3.2.1 Different kinds of Proposals before the release of Directive on the Legal Protection of Computer Programs(1990)

According to Article 4 of the Directive on the Legal Protection of Computer Programs (1990), " the permanent or transient reproduction of a computer program by any means and in any form " is constitute reproduction under the Directive. Same wording is adopted under the Directive on the Legal Protection of Database(1996) concerning the definition of reproduction of database. However, as pointed out in the Follow-up to the Green Paper on Copyright and Related Rights in the Information Society. (hereinafter abbreviate for the Follow-up to the Green Paper): " within the informational social environment, the traditional style of copy (making the visible copies), is co-existent with a lot of new styles of copy. These new styles of copy include scanning the printing materials or storing the digitalized materials into the memorizer of the computer or other electronic system or equipments." It is especially pointed out in the Follow-up to the Green Paper that " under general circumstances, for example, it could be possible that transferring information through the internet would cause incidental or ephemeral copy." This point is acknowledged by the Follow-up to the Green Paper that "it is worthy to discuss such new styles of copy to what extent could be incorporated in the traditional copyright, which is aimed at the traditional copy behaviors;" "There is a big difference on the limits and the exception provisions of the copyright between member states. most of them do not explicitly reach the problems of the digitalized usage of the protected works and do not regulate the modern styles of copy." "at present, it is admitted by all of the member states that the permanent electronic storage should be limited , however, attitudes differ widely towards transient or ephemeral copy."

Based on the above, Follow-up to the Green Paper offers some suggestions , "it should be clarified that some behaviors such as digitalization, scan, upload and download of the works and any other protected objects should be under controlled of the copyright in principle", it is especially pointed out that :"under some circumstances, the transient or other ephemeral acts of reproduction should also be under the control of the copyright." However, the Follow-up to the Green Paper does not mentioned under which circumstances on earth that those "transient or other ephemeral acts of reproduction" would be and how to be adjusted and limited by the copyright law. It can be seen that the opinions are similar between the EU's Follow-up Green Paper and the USA's The White Paper.

In 1999, Directive of the European Parliament of the Council on the harmonization of certain aspects of copyright and related rights in the information society (hereinafter abbreviates for European Union Directive on Copyright), an amended proposal for the European Parliament and Council Directive, it is suggested by the Commission of the European Communities that the right-holder of the reproduction right should be able to authorize or ban reproducing in any way, any form, partially or all, directly or indirectly, transiently or permanently, at the same time however, it points out that, "exceptional provisions should be stated towards certain transient reproduction acts, for example, those transient and collateral copy which are the parts of the technical process or which are caused unavoidably during the technical process of using the works, including those copy which is essential for the convenience for network propagation and those copy which has no independent economic value itself ".

3.2.2 Kabushiki Kaisha Sony Computer Entertainment Inc and Others v. Ball(2004)

The judgment released by the British Supreme Court in the case The Sony v. Ball reveals the impact of the European Union Directive on Copyright. The facts of the case: Sony manufactures and sells games consoles, Sony also designs, manufactures and sells on its behalf computer games for playing on its consoles. Sony sells Play-station-2 and computer games together in UK. Sony also designs a 2 part copy protection system, one part is embodied in the PS2 console and one part is in the CD or DVD conducting the PS2 games. There are one kind of a special code in the authentic CDs or DVDs embodied on the disc which are not recorded by standard copying equipment, an unauthentic CDs or DVDs made on those standard copying equipment do not have such codes. It is only after reading those embodied codes successfully that CDs or DVDs can be played on the PS2 console, which means any copies of PS2 games could not be played on PS2 console. The defendant, Mr. Ball, designs, manufactures and sells a mod chips called Messiah 2 which fit into the PS2, therefore, any authentic or unauthentic CDs or DVDs is playable on the PS2 with mod chips.

Sony sues Mr. Ball based on the provisions of s 296 of the Copyright, Designs and Patents Act 1988 ("the 1988 Act"): this section applies where copies of a copyright work are issued to the public by or with the license of the copyright owner, in an electronic form which is copy-protected". And it would constitute an infringement of copyright if a person "makes, imports, sells or lets for hire, offers or exposes for sale or hire, or advertises for sale or hire, any device or means specifically designed or adapted to circumvent the form of copy-protection employed, or publishes information intended to enable or assist persons to circumvent that form of copy-protection."

According to the s 296: Offering Messiah 2 would constitute an infringement only if the defendant know or have reason to believe that the Messiah2 chip will be used to make "infringing copies". During the process that the customers play unauthentic copies of computer games on the PS2, the only situation which would constitute "infringing copies" is: It would cause reproduction lasting for a small fraction of a second when the RAM containing the reproduced data from CD or DVD. Based on the above, Sony claims : when" the game inserted into the console, the program and other creative works (or substantial parts of them) are read from the CD or DVD and copied into a Random Access Memory chip ("RAW"DMS*) in the console", while the defendant claims against that "is far too ephemeral to turn the RAM into an infringing copy."

Under the provisions of s. 17 which, insofar as material, provides that:

Copying in relation to any description of work includes the making of copies which are transient or are incidental to some other use of the work."

Therefore, in accordance with s. 17, the UK Court of Chancery held that the instant of making of the copy is the key to decide whether or not it is an " infringing article ", and it would be irrelevant whether the RAM contains the copy data. Therefore, an object containing a copy of a copyright work is an " infringing article " within the meaning of the legislation, therefore, the RAM chip which recorded the digital data of the unauthentic CD or DVDs is an "infringing article" and playing unauthentic CDs or DVDs by consumers has constituted consumers are making "infringing article" when they are playing unauthentic CDs or DVDs, and then, Messiah2 chip is the tool to make the "infringing article". Mr. Ball lost the lawsuit at last.

4. Two Copyright Treaties of WIPO: WTPO and WPPT

In 1996, The World Intellectual Property Organization (WIPO) hold the Diplomatic Conference of Geneva, in order to make the WIPO Copyright Treat(WCT) and WIPO Performances and Phonograms Treaty (WPPT). It is required by the representatives from Europe and US that the reproduction right under Berne Convention should be clarified and "transient copy" should be incorporated in the Convention.

4.1 The provision S 7 of the Basic Proposal: Concerning the scope of reproduction right.

The Basic Proposal, drawn by the Committee of Experts, is the foundation of the delegations' discussions at the conference, including draft and explanations of 2 treaties. Based on the opinions from the US's White Paper and Europe's Follow-up Green Paper, the S 7 of the draft WCT states the scope of the reproduction right:

(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.

It is obviously that the aim of the S 7's phrase :"shall include direct and indirect reproduction of their works, whether permanent or temporary, in any manner or form" is to make sure "temporary reproduction" could be under the control of the reproduction right, which is also verified by the explanation of the Basic Proposal on S 7:

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. Some relevant uses may, now or in the future, become totally based on a temporary reproduction. 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. 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. 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.

both permanent and temporary reproduction constitute reproduction within the meaning of Article 9(1) of the Berne Convention.

As to the reason to "temporary reproduction" constitutes reproduction within the meaning of the Basic Proposal, it is because "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", which is consistent with the opinions within the White Paper, "MAI v Peak" and U. S. Copyright Office. Professor Pamela Samuelson points out that one of the International norms that the Clinton Administration seek in Geneva is to render the copyright owner the exclusive right to temporary reproduction of work within RAM.

Meanwhile, as same as the European Union Directive on Copyright, under the s 7 of Basic Proposal, although member states could draft exempt clauses to temporary reproduction, the legal usage of work is the premise of applying the exempt clause, furthermore, it is necessary to pass 3 tests to apply the exempt clause. American delegation stresses that those temporary reproduction arises when playing DVDs/CDs or transferring information during the authorized use should be regarded as the exemptions and member states has the discretion to make such exempt clause or not.

5. Determine the Nature of "Transient Copy" within RAM.

It can be seen from the disputes arose during the process of making WCT and WPPT that: it is mainly the Europe and the US held that the "transient copy" within RAM constitutes reproduction within the meaning of the legislation. The essence of this dispute is to solve the problem of defining the nature of the