1. Part Two - The Reproduction Right
1.1 Storage and Digitisation
Issue: Whether the existing definition of copying is broad enough to allow copyright owners to prohibit unauthorised copying of material in digital form and the conversion of print or analogue works to digital form.
Submission: The Committee agrees that the current reproduction right is sufficiently broad to allow copyright owners to control the digital reproduction of their works.
The Committee also agrees with the view that greater certainty could be provided through a specific reference in the definition of "copying" to state that "material form" includes digital formats. However, specific reference to digital formats may not be technologically neutral, in that the definition of copying may again need to be amended when as yet undiscovered technology allows for copying in formats other than digital formats and currently known formats. One way to deal with this could be to state that "material form" includes "digital formats and all other forms known or yet to be discovered."
1.2 Transient Copying
Issue: Whether the definition of copying should be amended to address explicitly incidental and temporary copies that are automatically made by computers and communications networks as a result of technical processes ("transient copying"), for example, caching or the creation of a history file.
Submission: A copyright owner needs to be able to control temporary as well as permanent copying. A user can exploit a work or sound recording even if the user has not made a permanent copy of it. Handheld phones with limited capacity for permanent storage could make temporary or transient copies of works, for example, when the phone is used to play music, more popular. Virtual gaming in future may involve downloading a game and playing it in temporary storage until the game is finished. Information streaming technology may further expand uses of temporary storage.
However, the Committee agrees that liability should not always arise for transient copying that is automatic, and part of a technical process. An exception should apply for transient copies or incidental copies, automatically made as part of a technical process, with no independent economic significance.
The Committee agrees that the purpose of copying should be considered when assessing whether infringement has occurred, and prefers the option of providing exceptions for some forms of transient copying.
The Committee also agrees that the definition of technical processes should apply more generally, such as to the technical functions of computers and maintenance of computer systems, which may not necessarily relate to communications. For example, technical processes could be defined so as to include routine activities for purposes such as error correction and security testing, which may involve transient copying.
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