U.S. Copyright Office Invites Public Comments on Right of “Making Available” in the Digital Age

By Renee Dopplick, ACM Director of Public Policy
March 3, 2014

The U.S. Copyright Office invites public comments on the rights of “making available” and “communication to the public,” particularly in the digital age. The deadline for comments is April 4, 2014. A public roundtable will be held in Washington, D.C. on May 5, 2014.

Questions from the Federal Register announcement:

1. Existing Exclusive Rights Under Title 17
a. How does the existing bundle of exclusive rights currently in Title 17 cover the making available and communication to the public rights in the context of digital on-demand transmissions such as peer-to-peer networks, streaming services, and downloads of copyrighted content, as well as more broadly in the digital environment?
b. Do judicial opinions interpreting Section 106 and the making available right in the framework of tangible works provide sufficient guidance for the digital realm?

2. Foreign Implementation and Interpretation of the WIPO Internet Treaties
a. How have foreign laws implemented the making available right (as found in WCT Article 8 and WPPT Articles 10 and 14)? Has such implementation provided more or less legal clarity in those countries in the context of digital distribution of copyrighted works?
b. How have courts in foreign countries evaluated their national implementation of the making available right in these two WIPO treaties? Are there any specific case results or related legislative components that might present attractive options for possible congressional consideration?

3. Possible Changes to U.S. Law
a. If Congress continues to determine that the Section 106 exclusive rights provide a making available right in the digital environment, is there a need for Congress to take any additional steps to clarify the law to avoid potential conflicting outcomes in future litigation? Why or why not?
b. If Congress concludes that Section 106 requires further clarification of the scope of the making available right in the digital environment, how should the law be amended to incorporate this right more explicitly?
c. Would adding an explicit “making available” right significantly broaden the scope of copyright protection beyond what it is today? Why or why not? Would existing rights in Section 106 also have to be recalibrated?
d. Would any amendment to the “making available” right in Title 17 raise any First Amendment concerns? If so, how can any potential issues in this area be avoided?
e. If an explicit right is added, what, if any, corresponding exceptions or limitations should be considered for addition to the copyright law?

Additional information is available at: https://federalregister.gov/a/2014-04104