Edited by Andrej Savin and Jan Trzaskowski
Chapter 8: Where does the act of ‘making available’ occur?
The 1996 WIPO Treaties oblige Member States to protect authors’ and performers’ rights of ‘communication to the public’, ‘including the making available to the public of their 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’. In the 2001 Information Society Directive, the EU directed Member States to implement the ‘making available’ right. Enacted at the dawn of the 21st century, these texts of course envision the making available of works via the Internet. But neither the WIPO Treaties nor the Information Society Directive explicitly addresses the localization of the ‘making available’ right. That is, is the work made available to the public from the jurisdiction in which the person or entity offering the work is located? Is the work made available to the public located in a particular country (or countries)? Both? The text of WIPO Copyright Treaty, art. 8 seems to emphasize the role of the public that accesses the works: what characterizes the right of making available is the individualization of the access. A communication intended for simultaneous receipt by multiple members of the public is not a ‘making available’, but is a simple communication to the public. It would therefore follow that the location of the members of the public who individually choose the places from which to access the work determines where the making available occurs.
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