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US Copyright Office says US law has a making available right, even though it doesn’t say so

By | Published on Friday 26 February 2016

US Copyright Office

So, making available right news everybody. Make it! Make it available! Right! And people say copyright law is a dry topic. The US Copyright Office has published a report saying that the so called making available right does exist in America, even though American copyright law makes no mention of it, a fact that has resulted in some confusion in the courts.

‘Making available’ is one of the ‘controls’ that comes with a copyright. The copyright owner has the exclusive right to ‘make available’ the content they own, in the same way they have the exclusive right to reproduce, distribute, rent out, adapt, perform or communicate it. Making available, in case you wondered, relates to when a bit of content is made available to the public through electronic channels in such a way that the user “may access it from a place and at a time individually chosen by them”.

The making available right was introduced through global copyright treaties in the 1990s, mainly to ensure that then emerging digital music platforms – the focus was download platforms at the time – were definitely subject to copyright restrictions. Signatories to the WIPO treaties then implemented the new copyright control in their own way at a national level. Some countries, like this most United Kingdom, specifically added the new control to copyright legislation.

In the UK, making available was added as a sub-set of the existing communication control that covered conventional broadcast. Though whereas, with sound recordings, ‘performer equitable remuneration’ is due on revenue stemming from the conventional communication control – meaning recording artists automatically receive 50% of any income – UK law says that does not apply to making available. Something that has proven controversial in the artist community of late.

Meanwhile, some other countries decided that the making available right was already covered by existing copyright controls, so the law didn’t need to be specifically amended. And that is the case in the US, where you will find no mention of ‘making available’ – or for that matter ‘communication to the public’ – in current copyright statute.

But, says the US Copyright Office in its new report, that doesn’t mean there is no making available right in America, even if some courts have more or less said that their isn’t. Because the US is a signatory of those WIPO treaties, see?

Said the Office this week: “During the past two decades, US government officials have uniformly maintained that the Copyright Act’s exclusive rights, taken together, cover the full range of conduct encompassed by the making available right, meaning that such conduct will implicate and be governed by one or more of the [existing] exclusive rights, including, for example, the distribution, public display, and public performance rights”.

It goes on: “Subsequent Congresses have reaffirmed this conclusion through their approval, between 2003 and 2011, of a dozen free trade agreements with foreign nations obliging the United States to provide a making available right, determining in each case that adoption would not require changes to US copyright law”.

The Office then concludes that: “Consistent with its prior analyses and testimony, as well as the views of Congress, multiple administrations, appellate courts, and leading academic authorities, the Copyright Office concludes that the exclusive rights of copyright owners set forth [in US copyright law] collectively meet and adequately provide the substance of the making available right”.

It adds that, with downloads, making available is part of the distribution control, while with streams, it’s likely part of the public performance control (which already covers broadcast in the US in the absence of a specific communication control).

The Copyright Office concedes that the American courts have not been as consistent on the existence of the making available right in the US as Congress has (or at least, as it claims Congress has). Nevertheless, the Office says it doesn’t reckon that copyright law needs to be amended to specifically include a making available right, or a communication right that would encompass making available, UK style.

Though, it says, Congress should “continue to monitor the opinions of both district and appellate courts regarding the scope and application of the making available right in the United States”. But the Office hopes that “the publication of this report and the analyses contained herein should prove helpful to both courts and practitioners looking for guidance in this area in the future”.

If the courts continue to wobble on ‘making available’ though, then maybe a copyright law rewrite will be necessary in the future and, if so, the Copyright Office will be ready and waiting to assist, says it.