US Copyright Office Recommends No Change To The “Making Available” Right

The “making available right,” affirmed by the 1996 World Intellectual Property Organization “Internet Treaties”, gives authors the prerogative to authorise digital access to their copyrighted works “in such a way that members of the public may access these works from a place and at a time individually chosen by them.” But while United States government officials have routinely held that the Digital Millennium Copyright Act (DMCA) which implements the treaties covers all of the conduct envisioned by the right, courts have been less consistent, the US Copyright Office said in a 23 February congressionally-ordered report that recommended no change to current law.

The document, The Making Available Right in the United States: A Report of the Register of Copyrights, is available here: http://copyright.gov/docs/making_available/. It looked at how the existing bundle of rights under Title 17 of the United States Code covers the making available right in the context of digital on-demand transmissions; how other countries implement the WIPO Internet Treaties; and whether US law should be strengthened or clarified.

The making available right is technology neutral, meaning that it covers all formats in which a work may be digitally communicated, such as downloads, stream and any other existing or future methods of online transmissions, the report said.

The right focuses on access to, rather than receipt of, digital content, ensuring that copyright owners can establish infringements by, for instance, showing that a defendant uploaded a protected work to a publicly accessible file-sharing network without permission.

The right also covers the delivery of works through one-to-one on-demand transmissions, such as those that can be received by members of the public individually in separate places and times, ensuring that someone engaging in unauthorised communication of a work cannot evade the right by delivering the content to the public in many separate individualised transmissions.

The making available right has been in place for two decades without change, but several conflicting court decisions have created uncertainty, the report said.

While a recent Supreme Court decision (American Broadcasting Cos. v. Aereo, Inc.) confirmed that the public performance right includes transmission of copyrighted works to the public via individualised streams, some lower courts have questioned the existence of the making available right where rights owners can’t prove that download or receipt occurred.

Other rulings have rejected the right out of hand. Two appellate courts have held that where a library offers physical copies of a work to the public, distribution does not necessarily require an actual transfer of copies.

The Copyright Office analysis concluded, however, that the exclusive rights set out in the DMCA collectively meet and adequately provide the substance of the making available right.

It also concluded that, consistent with the plain language of the WIPO Treaties, US law should be read to include the offer of public access, including via on-demand services, regardless of whether a copy has been disseminated or received. With regard to downloads, the office said, the appropriate reading of US law is that it covers offers of access.

The DMCA also provides making available rights with regard to internet streaming or displays of images online through the rights of public performance and public display.

Although the US stance differs from that of its treaty partners, most of which have implemented the right through a broad right to communicate copyrighted works to the public, “both approaches are reasonable and effective,” the report said.

Amending US law would “likely prove more disruptive, not less, to the rule of law in this area,” the report said. The office recommended that Congress continue to monitor the opinions of district and appellate courts on the scope and application of the making available right, and, if necessary, consider providing more clarity.

Hyperlinking an Emerging Issue

Some other countries have “begun to grapple with another intersection of technology and the making available right – the legal consequences of a defendant providing access to copyrighted content that is hosted on a server controlled by someone else,” the report noted. This can be done through various forms of hyperlinking.

The issues have attracted the most attention in the European Court of Justice, which has issued several rulings that address whether, and under what circumstances, hyperlinking to content can breach the making available right, the report said.

The cases from Europe and other jurisdictions reveal several trends, the office noted. The degree of consistency among nations regarding interpretation of the making available rights differs according to the varying factual scenarios. The outcomes in the cases appear to be highly fact-specific, and the full picture of how courts will apply the making available right in such situations is still evolving.

Secondly, the report said, “there is no approach that provides crystal clear guidance in all making available cases, either in terms of the activity that will be covered by the right or the ability to ensure that its application will easily address new and emerging technologies.”

 

Image Credits: US Copyright Office