You are looking at 1 - 9 of 9 items

  • Author or Editor: Cheryl Foong x
Clear All Modify Search
You do not have access to this content

The Making Available Right

Realizing the Potential of Copyright’s Dissemination Function in the Digital Age

Cheryl Foong

The right of copyright owners to make their content available to the public is crucial in an environment driven by access. The Making Available Right provides in-depth analysis of this exclusive right and offers insights on how we can approach the right in a more transparent and principled manner. This thought-provoking book brings together detailed analysis of the law and a broader consideration of copyright’s fundamental aims, and will be of interest to judges, practitioners and scholars concerned about how copyright deals with access going forward.
This content is available to you

Cheryl Foong

The first chapter introduces the subject matter of the book and its significance. It provides a brief introduction to the making available right as established by the World Intellectual Property Organization Internet Treaties, and explains why this right will play a central role in copyright law as we encounter increasingly advanced information technologies. In this environment, consumers are likely to seek convenient and efficient access to content, as opposed to possession of copies. The chapter sets out the objective of this book - that is, to establish clearer principles for interpreting the right - and explains why this objective matters to the sustainability of copyright in a digital environment that no longer prizes copies. It also sets out the structure of the book and delineates matters that are beyond the focus of analysis.

You do not have access to this content

Cheryl Foong

This chapter lays the foundation for critical analysis by introducing the relevant copyright history, theory and context. It discusses copyright’s Anglo-Saxon history, particularly the development of public performance rights, and contrasts this background with the current communications era facilitated by the Internet. It provides the theoretical framework for analysis, taking copyright’s fundamental functions as the starting point. These functions are: (1) incentivizing authorship and (2) encouraging the dissemination of content. It explains conventional and prevalent theories of copyright, and in the process highlights their lack of regard for copyright’s dissemination function. This chapter identifies existing scholarship that provides a starting point for building our understanding of copyright’s dissemination function, and reflects on how this preliminary discourse can be developed further in the context of the making available right. In introducing copyright’s dissemination function, it emphasizes the importance of this function to the sustainability of copyright in the internet age.

You do not have access to this content

Cheryl Foong

This chapter highlights the insufficient judicial scrutiny of the ‘act’ of making available. It begins by underscoring the importance of the ‘act’ of making available as a key element of the making available right and its impact on the overall scope of the right. Concepts that have been used to preclude more in-depth analysis of the ‘act’ are identified and explained. These include the elusive ‘volition’ requirement and fault-based considerations that have been incorporated into EU law on the ‘new public’. The chapter reveals how these concepts could be used to subvert copyright’s strict liability standard for primary infringement and inhibit copyright’s dissemination function. This chapter explains how such approaches to the ‘act’ amplify the problems with ‘the public’ and, in light of this, why we need a more principled and transparent approach to identifying the ‘act’ of making available as a threshold matter.

You do not have access to this content

Cheryl Foong

This chapter presents proposals for refining our approach to the making available right, moving us away from the existing theoretically unsound approaches. It identifies four principles, set out as an Interpretive Matrix, to guide the development of the making available right. Using case examples, this chapter discusses how judges can utilize the Interpretive Matrix to structure their decisions in a clearer and more principled manner. It also explains why a light legislative touch may be needed in this area. In addition, this chapter considers how the principles of the Interpretive Matrix may be used to guide copyright negotiations among rights holders and disseminators. With these principles in mind, stakeholders should seek to bring a degree of transparency to this area of practice and advance copyright consumers’ freedom to access content using new technologies.

You do not have access to this content

Cheryl Foong

This final chapter underscores the importance of copyright’s fundamental functions to the development of sound copyright analysis. The development of the making available right thus far illustrates the shortcomings of approaches that take copyright’s dissemination function for granted. This chapter reiterates the key findings of the book and highlights the areas of activity that present opportunities for implementing the principles identified. In sum, it emphasizes the theoretical and practical legal strategies that should be put into practice to further the core functions and aims of copyright. These are the steps that should be taken in our quest for clearer and more sensible copyright laws – with the making available right as an essential starting point.

You do not have access to this content

Cheryl Foong

This chapter explores the bias embedded in approaches to ‘the public’ that tend to prioritize the protection of authors. This is evident in the legal tests - notably the ‘copyright owner’s public’ criterion applied in Australia and the ‘new public’ criterion arising more recently in the European Union. The chapter explains how these tests, which use licensable markets as a proxy for what is ‘the public’, ultimately benefit incumbent disseminators of content. This is a conceptual approach that has practical implications for the scope of copyright. The chapter explains the impact that market-centric interpretations of ‘the public’ may have on technological innovation and the long-term sustainability of copyright. As this chapter argues, such an approach perpetuates the law’s consistent lack of regard for copyright’s dissemination function - to the disservice of a more robust copyright system that develops in conjunction with, rather than in response to, a changing technological landscape.

You do not have access to this content

Cheryl Foong

This chapter explains the basic characteristics of the making available right as established at the international level and the flexibility for implementation afforded under the ‘umbrella solution’. It evaluates the reasons for introducing the right as expressed in the debates and negotiations leading up to the World Intellectual Property Organization Internet Treaties, and considers the relevance of these preparatory works (or travaux préparatoires) under principles of treaty interpretation as set out in the Vienna Convention on the Law of Treaties. This chapter also discusses the lack of authoritative decisions at the international level on the scope of the making available right and, in light of this, the potential for international consensus to arise through judicial interpretation of the right by national and regional courts.

You do not have access to this content

Cheryl Foong

This chapter provides an account of current national and regional approaches to the making available right. The implementation of the making available right under national (United States and Australia) and regional (European Union) legal regimes is considered in detail. It discusses the statutory provisions giving effect to the making available right in Australia, the United States and the European Union under the ‘umbrella solution’ and explains the different language utilized in these jurisdictions. Using cases arising in the context of linking and cloud technologies, the chapter provides comparative analysis of judicial approaches to the two key elements of the right: (1) an ‘act’ of making available, that is (2) ‘to the public’. The chapter provides preliminary analysis on the conceptual difficulties that have been exacerbated by online technologies, laying the groundwork for deeper analysis in subsequent chapters.