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 5: Interpreting the public: a focus on copyright owners perspectives

Cheryl Foong

Abstract

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.

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