The Making Available Right
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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.
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Chapter 4: National and regional implementation: US, EU and Australia

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.

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