Published in the following book: pp. 234-47 of David Vaver and Lionel Bently, eds. "Intellectual Property in the New Millennium, Essays in Honour of William R. Cornish," Cambridge Univ. Press, 2004.
The Berne Convention 1971 Paris Act covered the right of communication to the public incompletely and imperfectly through a tangle of occasionally redundant or self-contradictory provisions on "public performance;" "communication to the public," "public communication," "broadcasting," and other forms of transmission. Worse, the scope of rights depended on the nature of the work, with musical and dramatic works receiving the broadest protection, and images the least; literary works, especially those adapted into cinematographic works, lying somewhere in between. The 1996 WIPO Copyright Treaty rationalized and synthesized protection by establishing full coverage of the communication right for all protected works of authorship. The WCT also introduced a new designation, the "right of making available to the public." This right corresponds to much communication of works over the Internet, whose users "access these works from a place and at a time individually chosen by them" (WCT art. 8).
As the drafters of the WCT (and its companion "Internet treaty" the WIPO Performers' and Phonograms Treaty, arts. 10 and 14) sought to modernize the Berne Convention to address new exploitations by means of new technologies, one might infer that the "right of making available" is something new and different, not previously within the Berne Convention minimum rights protected. Whether the "right of making available" is a reaffirmation or an enlargement, its actual scope remains to be ascertained. This Essay will explore the meaning of "making available" in the WCT and "communication to the public" in the Berne Convention by applying these concepts to several of the principal forms of communication over the Internet. How, for example, should one analyze communications to and from websites, or peer-to-peer exchanges, or email, under the Berne Convention? What, if anything, do the WIPO Treaties add to the analysis?
Some of the WIPO Treaties' provisions may fairly be deemed to reaffirm the scope of rights already present in the Berne Convention, while others clearly add new protections to the range of minimum rights. The WIPO Treaties have significantly expanded the subject matter coverage of the Berne Convention’s communication to the public right, filling in the kinds of blank spots that this Essay’s analysis exposes. The WIPO Treaties have also eliminated the disparate treatment of wired and wireless transmissions. The core concept of "making available," however, can fairly be called neither a reaffirmation nor a novelty, for it resolves an ambiguity as to whether the old communication to the public rights accommodated or excluded "pull technologies." This Essay has concluded that if Berne did not mandate the inclusion of recipient-initiated transmissions, neither did it preclude them. The right may have been incipient, but there was sufficient uncertainty to leave room for Member State interpretation. As a result, it is appropriate to mark the "making available" right as a clarification. The text of article 8 of the WCT lends further support to this view of the communication to the public right because it encompasses the "making available" right within the general exclusive right of communication to the public.
As for the scope of the "making available" right, not all forms of communication of works over the Internet come within its reach. Moreover, some of the excluded (or at best ambiguously covered) communications may be economically significant. This suggests that, despite the aim of the WIPO Treaties' enactors to assure "effective and uniform" "protection of the rights of authors," technology may continue to outstrip the ingenuity of the drafters of multilateral instruments.
Date of Authorship for this Version
Ginsburg, Jane C., "The (New?) Right of Making Available to the Public" (2004). Columbia Public Law & Legal Theory Working Papers. Paper 0478.