Copyright Office Releases Report on Right of "Making Available" | Practical Law

Copyright Office Releases Report on Right of "Making Available" | Practical Law

The US Copyright Office released a report on the right of "making available," concluding, among other things, that the Copyright Act provides authors with a cause of action for the "making available" of copyrighted works to the public, as required by the 1996 WIPO Internet Treaties.

Copyright Office Releases Report on Right of "Making Available"

Practical Law Legal Update w-001-4650 (Approx. 3 pages)

Copyright Office Releases Report on Right of "Making Available"

by Practical Law Intellectual Property & Technology
Published on 24 Feb 2016 • USA (National/Federal)
The US Copyright Office released a report on the right of "making available," concluding, among other things, that the Copyright Act provides authors with a cause of action for the "making available" of copyrighted works to the public, as required by the 1996 WIPO Internet Treaties.
On February 22, 2016, the US Copyright Office released a report on the right of "making available" in the US (the "Report"), after a request for input on this issue in 2014 (see Legal Update, Copyright Office Seeks Further Public Comment on "Making Available" and "Communication to the Public" Rights Post-Aereo). The Report concluded, among other things, that the Copyright Act includes the "making available" right outlined in the 1996 WIPO Internet Treaties, and that it may not be beneficial for Congress to enact a separate law on the right at this time (17 U.S.C. § 106).
The Internet Treaties affirmed that its signatories, including the US, grant authors the right to authorize or prohibit access–or making their works available–to the public through networks like the internet. The US ratified and implemented the Treaties, and Congress concluded that the "making available" right was already covered by the distribution, public display, and public performance rights of the Copyright Act.
According to the Report, US courts have been inconsistent in analyzing this right. The US Supreme Court's decision in American Broadcasting Cos. v. Aereo, Inc. affirmed the making available right's existence under US law, ruling that the Copyright Act's public performance right covers the transmission of copyrighted works to the public through individual internet streams (134 S. Ct. 2498 (2014)). However, some district courts have questioned or altogether rejected the existence of the "making available" right under US law.
In the Report, the Copyright Office concluded that:
  • The rights covered by 17 U.S.C. § 106 collectively provide the "making available" right.
  • US law should be read to include the provision of the Internet Treaties defining the "making available" right as whether members of the public "may access" the work, including through on-demand services, without considering whether a copy has been disseminated or received.
  • In the context of downloads, US law provides the "making available" right through the exclusive right of distribution under 17 U.S.C. § 106(3).
  • Aereo confirms that the public performance right covers transmissions to the public through individual streams.
  • It would not necessarily be beneficial for the US to enact a separate "making available" or communication-to-the-public right at this time.
The Copyright Office also recommended that Congress continue to monitor court opinions on the "making available" right in the US and, if necessary, provide legislative clarity through definitions or a clarifying amendment to 17 U.S.C. § 106.