Making Available Study

The Copyright Office is undertaking a study to assess the state of U.S. law recognizing and protecting “making available” and “communication to the public” rights for copyright holders. Two international treaties to which the United States is a party – the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty (collectively, the “WIPO Internet Treaties”) – require member states to recognize the rights of making available and communication to the public in their national laws. The treaties obligate member states to give authors of works, producers of sound recordings, and performers whose performances are fixed in sound recordings the exclusive right to authorize the transmission of their works and sound recordings, including through interactive platforms such as the Internet, where the public can choose where and when to access them.

The United States implemented the WIPO Internet Treaties through the Digital Millennium Copyright Act (“DMCA”) in 1998. Congress did not, however, amend U.S. law to include explicit references to “making available” and “communication to the public,” concluding that Title 17 already provided those rights. The lack of explicit references to these rights in U.S. law, however, has led some courts and commentators to express uncertainty over how the existing rights in Title 17 may apply to various methods of making of copyrighted works available to the public, including in the digital environment.

The Copyright Office has been asked by Congress to review and assess (1) how the existing bundle of exclusive rights under Title 17 covers 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 music downloads, as well as more broadly in the digital environment; (2) how foreign laws have interpreted and implemented the relevant provisions of the WIPO Internet Treaties; and (3) the feasibility and necessity of amending U.S. law to strengthen or clarify our law in this area. The Office has issued a Notice of Inquiry requesting public comments on several aspects of these issues, including relevant judicial interpretations, the experience of other nations, and constitutional considerations.

During its review, the Office requested comments and held a public roundtable in Washington D.C. on May 5, 2014, which was videotaped and transcribed. The complete transcript is available here, and the video will be posted as it becomes available.