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 6: Interpreting the act: superficial analysis of a crucial element

Cheryl Foong

Abstract

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.

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