Abstract
The making available right is gaining prominence, particularly in the context of cloud technologies. “The public” is one of the two key elements of the right, and it is a notion that has yet to be clearly conceptualised. However, coupled with a broad act of “making available” in the Internet era, we are seeing the limits of this problematic element severely tested. This chapter reviews the operation of the element in this context, and considers the pitfalls of continuing with current approaches to “the public”.
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Notes
- 1.
This chapter will use the terms “making available right” as a shorthand description of the right to communicate to the public by making available. Note that the making available right may more accurately be described as a subset of the communication right. Ginsburg notes that it is not entirely clear whether the making available right may be considered a substantive enlargement of Berne Convention rights or a mere affirmation of the existing scope of rights, and prefers to describe it as clarification: Ginsburg (2004). In terms of the legal nature of the WCT as a ‘special agreement’, see Ficsor (2002), pp. 18–19; Ricketson and Ginsburg (2006), p. 145.
- 2.
Judicial approaches to the act of “making available” in the context of cloud technologies are discussed by the author in Foong (2015), p. 583.
- 3.
This chapter considers judicial interpretations of the public in the US, Australia and by the Court of Justice of the European Union. Where relevant, historical UK decisions that constitute precedent in Australia will be discussed.
- 4.
WIPO Copyright Treaty adopted 20 December 1996, S. Treaty Doc. No. 105-17 (1997); 36 ILM 65 (1997) (Australia entry into force 26 July 2007; US entry into force 6 March 2002) (‘WCT’).
- 5.
WIPO Performances and Phonograms Treaty adopted 20 December 1996, S. Treaty Doc. No. 105-17, 36 ILM 76 (1997) (Australia entry into force 26 July 2007; US entry into force 20 May 2002) (‘WPPT’).
- 6.
Ficsor (2002), pp. 414–415.
- 7.
Ibid 495.
- 8.
Note that the right of making available to the public is recognized as a stand-alone right in article 10 and 14 of the WPPT, and expressed in article 8 of the WCT as a “sub-right” to the communication to the public right.
- 9.
Ricketson and Ginsburg (2006), pp. 741–742. This may be contrasted with the “push” model, for example in the case of broadcasts, where the broadcaster is in control.
- 10.
See eg Ricketson and Ginsburg (2006), p. 704 (noting that the opposite to ‘public’ is ‘private’, and that the immediate family circle would be excluded from that which is ‘public’).
- 11.
See for example the US ‘transmit clause’, set out in footnote 61 below.
- 12.
See Sociedad General de Autores y Editores de España (SGAE) v Rafael Hoteles SA (Court of Justice of the European Communities, Case C-306/05, 7 December 2006) [50] (‘It is apparent from both the letter and the spirit of Article 3[1] of Directive 2001/29 and Article 8 of the WIPO Copyright Treaty—both of which require authorisation by the author not for retransmissions in a public place or one which is open to the public but for communications by which the work is made accessible to the public—that the private or public nature of the place where the communication takes place is immaterial.’); Telstra v APRA (1997) 191 CLR 140, 156 (‘The distinction between what is “in public” and what is “in private” is of little assistance in determining what is meant by transmission “to the public”. The transmission may be to individuals in private circumstances but nevertheless be to the public.’); On Command Video Corporation v Columbia Pictures Industries 777 F. Supp. 787 (N.D. Cal. 1991), p. 790 (‘The non-public nature of the place of the performance has no bearing on whether or not those who enjoy the performance constitute “the public” under the transmit clause.’).
- 13.
See Foong (2015), p. 583 (arguing for clearer analysis of the ‘act’ of making available in the context of cloud services).
- 14.
Note that although the precise demarcation of what is ‘public’ remains a matter of national determination due to the lack of Conventional guidelines, Ricketson and Ginsburg argue that it is ‘subject to the implied qualification that this line should not be set in such a way as to prejudice the author’s right to exploit his work by means of public performance or communication to the public’: Ricketson and Ginsburg (2006), p. 705. See also Reinbothe and von Lewinski (2015), p. 141.
- 15.
The jurisdictions covered are Australia, the US and EU. It should be noted that this chapter does not provide comprehensive coverage of all cases that have considered the issue, but key cases that are representative of the approaches in these jurisdictions.
- 16.
The passing of the Statute of Anne in 1710 represents the first formal recognition of literary property under the common law system, although the concept that one could have exclusive possession of printed works long preceded that date: see Atkinson and Fitzgerald 2011), p. xv (Introduction).
- 17.
Statute of Anne 1710 (London).
- 18.
See eg IceTV Pty Limited v Nine Network Australia Pty Limited [2009] HCA 14; (2009) 239 CLR 458 471 (per French CJ, Crennan and Kiefel JJ, describing the utilitarian role of the statute as a ‘social contract’ between the author and the public); cf. Zimmerman (2010), p. 965 (arguing that these lofty aspirations were more rhetorical than substantive, benefitting only a small portion of the literate citizenry). See also Patterson (1965), pp. 223, 236 (arguing that ‘while the statute clearly benefitted the author, it was primarily an antimonopoly trade regulation statute.’).
- 19.
It should be noted that in contrast to the economic or utilitarian theory, there are less established but nonetheless important theories that emphasise social flourishing and free speech ideals, described by William Fisher as “social planning theory”: see Fisher (2001).
- 20.
Note that Patterson and Birch have described copyright as having one purpose (to promote learning), which is fulfilled by several functions, i.e. ‘to encourage the creation, dissemination, and use of learning materials’: Patterson and Birch Jr (2009), pp. 215, 392.
- 21.
- 22.
Note that the US does not have an explicit making available right, but relies on existing exclusive rights (including the public performance right) to give effect to its obligations under the WCT: US Department of Commerce, ‘Copyright Policy, Creativity, and Innovation in the Digital Economy’ (Green Paper, US Department of Commerce, July 2013) 15 <http://www.uspto.gov/news/publications/copyrightgreenpaper.pdf>, citing US House of Representatives, Committee on the Judiciary, ‘WIPO Copyright Treaties Implementation and On-Line Copyright Infringement Liability Limitation’ (HR Rep No 105-551, 1998) pt. 1, 9: ‘The treaties do not require any change in the substance of copyright rights or exceptions in US law’.
- 23.
Wu (2004), pp. 278, 281–283.
- 24.
Ibid 279. Wu notes that, depending on what one accepts as “copyright”, copyright’s management of rival disseminators actually predates copyright’s authorship regime, as it had roots as a publisher’s right ‘with no concern for the author’: ibid 288; citing Patterson (1968), p. 8.
- 25.
Wu describes this communication’s regime explicitly in competition policy terms: Wu (2004), p. 286 (‘As presented in this paper, ... the term ‘communications policy’ is taken simply to mean a special case of competition, or antitrust policy as between disseminators.’). Note that while Wu’s “communications policy” is limited to disseminators (see eg ibid 325 and 339), it is worth considering a broader “dissemination function” of copyright which integrates Wu’s communications policy with authorial incentives to create and disseminate.
- 26.
Ibid 329–331.
- 27.
The Information Society directive that harmonised the making available right EU-wide was introduced in 2001: Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the Harmonisation of Certain Aspects of Copyright and Related Rights in the Information Society [2001] OJ L 167/10.
- 28.
In addition to the cases discussed here, see also Sociedad General de Autores y Editores de España (SGAE) v Rafael Hoteles SA (Court of Justice of the European Communities, Case C-306/05, 7 December 2006); Football Association Premier League v QC Leisure; Karen Murphy v Media Protection Services Ltd (Court of Justice of the European Communities, Joined Cases C-403/08 and C-429/08, 4 October 2011); ITV et al v TVCatchup (Court of Justice of the European Communities, Case C-607/11, 7 March 2013); BestWater International GmbH v M Mebes & S Potsch (Court of Justice of the European Communities, Case C-348/13, 21 October 2014).
- 29.
Nils Svensson, Sten Sjögren, Madelaine Sahlman, Pia Gadd v Retriever Sverige AB (Court of Justice of the European Communities, Case C-466/12, 13 February 2014) (‘Svensson’).
- 30.
The CJEU held that ‘this must be construed broadly’ in order to ensure ‘a high level of protection for copyright holders’: ibid [17].
- 31.
In contrast, the test led to a different outcome in ITV et al v TVCatchup (Court of Justice of the European Communities, Case C-607/11, 7 March 2013). This CJEU case involved an internet service that would capture free-to-air broadcast signals and record these in digital formats that could be streamed back to the user on-demand. The Court held that the “new public” criteria had to be satisfied only if the defendant was using the “same technical means” as the initial communication. In this instance, because TVCatchup provided subscribers with access through a technical means different from the initial communication, the communication did not have to be directed to a “new public”. However, it is unclear how one is to distinguish relevantly different from “same” technical means.
- 32.
It should be noted that this “new public” theory was first developed in Sociedad General de Autores y Editores de España (SGAE) v Rafael Hoteles SA (Court of Justice of the European Communities, Case C-306/05, 7 December 2006).
- 33.
Svensson (Court of Justice of the European Communities, Case C-466/12, 13 February 2014) [24].
- 34.
Ibid [26]-[27], [31].
- 35.
Another criticism raised by Mihály Ficsor is that this “new public” criteria has no basis whatsoever in the Berne Convention, and that the CJEU erroneously purported to rely on an out-of-date WIPO Guide published in 1978: Mihály Ficsor, Svensson: Honest Attempt at Establishing Due Balance Concerning the Use of Hyperlinks – Spoiled by the Erroneous ‘New Public’ Theory (5 May 2014), p. 20 <http://www.copyrightseesaw.net/archive/?sw_10_item=68>. See also Ricketson and Ginsburg (2006), pp. 725–726 (on the consideration of the ‘new audience’ standard for broadcast transmissions under the Berne Convention, and the rejection of that standard).
- 36.
See Ficsor (2014).
- 37.
GS Media BV v Sanoma Media Netherlands BV, Playboy Enterprises International Inc, Britt Geertruida Dekker (Court of Justice of the European Communities, Case C 160/15, 8 September 2016).
- 38.
Note that Advocate General Whatlet has taken GS Media v Sanoma as an opportunity to urge the CJEU to revisit its broad interpretation of the making available right in the context of linking, and argued that it should not be a making available to the public: ‘Opinion of Advocate General Wathelet - GS Media BV v Sanoma Media Netherlands BV (Case C-160/15)’ (7 April 2016) <http://curia.europa.eu/juris/document/document.jsf?text=&docid=175626&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=4714>.
- 39.
GS Media BV v Sanoma Media Netherlands BV, Playboy Enterprises International Inc, Britt Geertruida Dekker (Court of Justice of the European Communities, Case C 160/15, 8 September 2016) [49].
- 40.
Ibid [51]. It should be noted that the case was decided in the process of finalising this publication.
- 41.
It should be noted that the “the public” is not legislatively defined in Australia.
- 42.
(1997) 191 CLR 140. The case involved music-on-hold communicated to individual members of the public through their telephone sets. As this was a case brought before the Digital Agenda amendments which introduced the making available right, the Court considered ‘the public’ in the context of broadcast and diffusion rights.
- 43.
Ibid 155–56.
- 44.
Ibid 156–157. Dawson and Gaudron JJ (Toohey and McHugh JJ concurring) held:
Lying behind the concept of the copyright owner’s public is recognition of the fact that where a work is performed in a commercial setting, the occasion is unlikely to be private or domestic and the audience is more appropriately to be seen as a section of the public. It is in a commercial setting that an unauthorised performance will ordinarily be to the financial disadvantage of the owner’s copyright in a work because it is in such a setting that the owner is entitled to expect payment for the work’s authorised performance …
- 45.
Universal Music Australia Pty Ltd v Cooper (2005) 150 FCR 1.
- 46.
Roadshow Films Pty Ltd v iiNet Ltd (2011) 194 FCR 285.
- 47.
It should be noted that the secondary liability issue was appealed to High Court: Roadshow Films Pty Ltd v iiNet Ltd (No 2) [2012] HCA 16; (2012) 248 CLR 42.
- 48.
Note that iiNet also sought to rely on the “safe harbour” provisions, particularly s 116AH(1) which provides that a carriage service provider must adopt and reasonably implement a termination policy for ‘repeat infringers’. Therefore it was also necessary to determine whether there were numerous specific acts of infringement committed by users: Roadshow Films Pty Ltd v iiNet Ltd (2011) 194 FCR 285, 313 (per Emmett J).
- 49.
Ibid 324.
- 50.
Ibid. See also similar sentiments by Jagot J (finding BitTorrent users were clearly members of the film copyright owner’s public because ‘these are precisely the people from whom the appellants as the copyright owners otherwise would expect to receive payment for access to the appellants’ films’, and ‘[t]he avoidance of such payment by use of the BitTorrent protocol involves clear commercial deprivation to the appellants as copyright owners’, at 368) and Nicholas J (‘I think it is reasonable to infer that the transmissions were to the financial disadvantage of the copyright owner’, at 441).
- 51.
Weatherall (1999), pp. 398, 402.
- 52.
Ibid, citing eg Ernst Turner Electrical Instruments Ltd v Performing Right Society Ltd [1943] 1 All ER 413.
- 53.
It should be noted that the CJEU in TVCatchup does recognise that ‘a profit-making nature does not determine conclusively whether a retransmission, such as that at issue in the main proceedings, is to be categorised as a “communication” within the meaning of Article 3(1) of Directive 2001/29’: ITV et al v TVCatchup (Court of Justice of the European Communities, Case C-607/11, 7 March 2013) [43]; cf Società Consortile Fonografici (SCF) v Marco Del Corso (Court of Justice of the European Communities, Case C-135/10, 15 March 2012).
- 54.
Cf Australian Government, Copyright Convergence Group, ‘Highways to Change: Copyright in the New Communications Environment’ (August 1994) 19 and 29 (‘[The CCG] recommends that a provision be inserted into the Act which deems transmissions of copyright material which are made for a commercial purpose to be transmissions to the public.’).
- 55.
(2012) 201 FCR 147.
- 56.
The Court held that ‘[o]ur conclusions on these two matters are sufficient to resolve these appeals. They must be allowed. It is, in consequence, unnecessary to consider the various alternative grounds of appeal the appellants have raised.’: Ibid 152. This was despite the allegation being made precisely because the plaintiff held the ‘exclusive licence to communicate to the public, by means of the internet and mobile telephony enabled devices, free to air television broadcasts of football matches conducted by them.’: Ibid 151.
- 57.
The plaintiffs’ request for a preliminary injunction was based solely on direct liability for exercise of the public performance right: American Broadcasting Companies, Inc, et al., v Aereo, Inc, 134 S. Ct. 2498 (2014), pp. 2514–2515. Note that the public performance right is one of the national exclusive rights purportedly giving effect to the making available right under the “umbrella solution” of the Internet Treaties: see US Department of Commerce, ‘Copyright Policy, Creativity, and Innovation in the Digital Economy’ (Green Paper, US Department of Commerce, July 2013) 15 <http://www.uspto.gov/news/publications/copyrightgreenpaper.pdf>.
- 58.
134 S. Ct. 2498 (2014).
- 59.
A subscriber could also save the program in a directory for later viewing by selecting “record”, but this function and the reproduction right were not under consideration.
- 60.
Note that Aereo devised this so-called “copyright-avoiding” business model to take advantage of the Second Circuit Cablevision ruling which held that private transmissions generated from the same copy of the work were not “to the public” because ‘the use of a unique copy may limit the potential audience of a transmission’: Cartoon Network, LP v CSC Holdings, Inc, 536 F.3d 121 (2d Cir. 2008), p. 136; see further Giblin and Ginsburg (2014). <http://ssrn.com/abstract=2443595>.
- 61.
§ 101 of the US Copyright Act of 1976 provides that performance or display of a work “publicly” means:
…to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) [i.e. a public place] or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.
- 62.
American Broadcasting Companies, Inc, et al., v Aereo, Inc, 134 S. Ct. 2498 (2014), p. 2508.
- 63.
Ibid.
- 64.
Ibid 2511 and 2506. The Court emphasized that Congress’ primary purpose in amending the Copyright Act in 1976 was to overturn the Supreme Court’s holdings in Fortnightly and Teleprompter which held that a CATV provider was more like a viewer than a broadcaster, and therefore its actions fell outside the scope of the Copyright Act: see Fortnightly Corp v United Artists Television, Inc, 392 U.S. 390 (1968); Teleprompter Corp v Columbia Broadcasting Sys, Inc, 415 U.S. 394 (1974); H.R. Rep. No. 94-1476 (1976) (House Report on the Final Bill for the US Copyright Act 1976), pp. 86–87; American Broadcasting Companies, Inc, et al., v Aereo, Inc, 134 S. Ct. 2498 (2014), pp. 2505–2507.
- 65.
The analogy with cable was criticised by Scalia J in dissent as a ‘guilt-by-resemblance’ test, with the majority implementing an ‘ad hoc rule for cable-system lookalikes’ without providing any criteria as to when it applies: American Broadcasting Companies, Inc, et al., v Aereo, Inc, 134 S. Ct. 2498 (2014), pp. 2515 and 2516. Scalia J does not consider the element of the public as he concludes that Aereo did not ‘perform’, ‘for the sole and simple reason that it does not make the choice of content’: ibid 2514.
- 66.
777 F. Supp. 787 (N.D. Cal. 1991).
- 67.
Ibid 788.
- 68.
Ibid 790 (‘[T]he relationship between the transmitter of the performance, On Command, and the audience, hotel guests, is a commercial, “public” one regardless of where the viewing takes place.’).
- 69.
Note that the rights of authors to control the public staging of their works existed as early as 1791 in France (see Geller 2000, p. 226) while the UK and US recognized performance rights in dramatic works from 1833 and 1856 respectively: Dramatic Literary Property Act 1833 (UK); Dramatic Copyright Act 1856 (US).
- 70.
[1936] 1 All ER 409.
- 71.
Ibid 410.
- 72.
Ibid.
- 73.
- 74.
Ibid 418–19.
- 75.
Ibid 415.
- 76.
Ibid 418. Romer LJ went on to explain that ‘there are about 5000 similar institutes in England and Wales with a total membership of something like 300,000. If performances given before these institutes are private performances, the result to the owner of the copyright in the works performed would be serious.’
- 77.
[1943] 1 All ER 413.
- 78.
Ibid 417.
- 79.
Ibid.
- 80.
The concept of the ‘copyright owner’s public’ was adopted in Australia in the NSW Supreme Court decisions of Australian Performing Right Association Ltd v Canterbury-Bankstown League Club Ltd (1964) 5 FLR 415; Rank Film Production Ltd v Dodds [1983] 2 NSWLR 553; and as discussed above, applied by the High Court in Telstra v APRA (1997) 191 CLR 140.
- 81.
It should be noted that the interest was not purely in ‘public access’ but also maintaining the value of the market for sheet music. Arthur Steuart testified before Congress, stating ‘[t]he thing to be protected is the business of the music publishers and not to cut off the public from the enjoyment of music which can be received or enjoyed by any more in which it is publicly performed.’: Brylawski and Goldman (eds) (1976), p. 162; cited in Loren (2009), pp. 255, 262.
- 82.
242 U.S. 591 (1917).
- 83.
H.R. Rep. No. 94-1476 (1976) (House Report on the Final Bill for the US Copyright Act 1976), pp. 62–63.
- 84.
242 U.S. 591 (1917).
- 85.
Ibid 594. Cf Loren’s argument that the court should have acknowledged that ‘perhaps Congress meant to “imperfectly protect” this particular right of the copyright owner as a means of balancing the public’s interest in the enjoyment of music’: Loren (2009), p. 274.
- 86.
Herbert v Shanley 242 U.S. 591 (1917), p. 594 (‘Performances are not different in kind from those of the defendants could be given that might compete with and even destroy the success of the monopoly that the law intends the plaintiff to have. It is enough to say that there is no need to construe the statute so narrowly.’).
- 87.
Ibid 594–95. His Honour said: ‘The defendants’ performances are not eleemosynary [i.e. not supported by charity]. They are part of a total for which the public pays, and the fact that the price of the whole is attributed to a particular item which those present are expected to order, is not important.’
- 88.
Wu (2004), pp. 305–306. Professor Tim Wu’s view is that the opinion is ‘simple economics, but underlying it is a substantive view of the rights of the copyright holder’ which ‘saw copyright as a commercial property to an extent never reached before’. The drastic effect of Justice Holmes’ decision in reframing subsequent perspectives on the exclusive rights granted under copyright is explained by Wu as follows:
His view, now mainstream, presumed that the copyright owner should have the power to demand a license for every revenue stream dependent on the copyrighted work—even revenue from adaptations to other media, or revenue arising from improved restaurant atmospherics. This, this Herbert principle, has had a powerful impact on copyright’s theory and evolution.
Loren also highlights the importance of Justice Holmes’ final paragraph to the development of copyright law, having been cited by over 70 federal court decision and influencing copyright decisions overseas, and also accepted favourably in the scholarly literature that followed: Loren (2009), p. 274.
- 89.
For instance, Romer LJ in Jennings v Stephens cautioned that the nature of the place was not relevant, finding ‘some difficulty in seeing why it is material to consider the nature of and the place where the entertainment is given. A private entertainment may be given in a public room. A public entertainment may be given in a private house. The question whether an entertainment is given in public or in private depends, in my opinion, solely upon the character of the audience.’: Jennings v Stephens [1936] 1 All ER 409416.
- 90.
For a discussion of when and where a ‘making available’ occurs, see Christie and Dias (2005), p. 237.
- 91.
See Schumpeter (2013), pp. 82–83.
- 92.
As Professor Eric Priest explains, ‘[r]educed revenue stream diversity harms the creative ecosystem by diminishing monetization opportunities for smaller and independent producers, distorting market signals sent to producers, and disproportionately exposing producers to the idiosyncrasies of peculiar markets and exploitation by intermediaries’: Priest (2014), pp. 467, 471–472.
References
Articles/Books/Reports
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Australian Government (August 1994) Copyright Convergence Group, ‘Highways to change: copyright in the new communications environment’
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Cases
American Broadcasting Companies, Inc, et al, v Aereo, Inc, 134 S. Ct. 2498 (2014)
Australian Performing Right Association Ltd v Canterbury-Bankstown League Club Ltd (1964) 5 FLR 415
Cartoon Network, LP v CSC Holdings, Inc, 536 F.3d 121 (2d Cir. 2008)
Ernst Turner Electrical Instruments Ltd v Performing Right Society Ltd [1943] 1 All ER 413
Fortnightly Corp v United Artists Television, Inc, 392 U.S. 390 (1968)
GS Media BV v Sanoma Media Netherlands BV, Playboy Enterprises International Inc, Britt Geertruida Dekker (Court of Justice of the European Communities, Case C 160/15, 8 September 2016)
Herbert v Shanley 242 U.S. 591 (1917)
IceTV Pty Limited v Nine Network Australia Pty Limited [2009] HCA 14; (2009) 239 CLR 458
ITV et al v TVCatchup (Court of Justice of the European Communities, Case C-607/11, 7 March 2013)
Jennings v Stephens [1936] 1 All ER 409
National Rugby League Investments Pty Ltd v Singtel Optus Pty Ltd (2012) 201 FCR 147
Nils Svensson, Sten Sjögren, Madelaine Sahlman, Pia Gadd v Retriever Sverige AB (Court of Justice of the European Communities, Case C-466/12, 13 February 2014)
On Command Video Corporation v Columbia Pictures Industries 777 F. Supp. 787 (N.D. Cal. 1991)
Rank Film Production Ltd v Dodds [1983] 2 NSWLR 553
Roadshow Films Pty Ltd v iiNet Ltd (2011) 194 FCR 285
Roadshow Films Pty Ltd v iiNet Ltd (No 2) [2012] HCA 16; (2012) 248 CLR 42
Sociedad General de Autores y Editores de España (SGAE) v Rafael Hoteles SA (Court of Justice of the European Communities, Case C-306/05, 7 December 2006)
Società Consortile Fonografici (SCF) v Marco Del Corso (Court of Justice of the European Communities, Case C-135/10, 15 March 2012)
Teleprompter Corp v Columbia Broadcasting Sys, Inc, 415 U.S. 394 (1974)
Telstra v APRA (1997) 191 CLR 140
Universal Music Australia Pty Ltd v Cooper (2005) 150 FCR 1
Legislation
Copyright Act 1968 (Cth)
Copyright Act of 1976, Pub. L. No. 94-553, 90 Stat. 2541 (1976)
Copyright Amendment (Digital Agenda) Act 2000 (Cth)
Dramatic Copyright Act 1856 (US)
Dramatic Literary Property Act 1833 (UK)
Statute of Anne 1710 (London)
Treaties
WIPO Copyright Treaty adopted 20 December 1996, S. Treaty Doc. No. 105-17 (1997); 36 ILM 65 (1997) (Australia entry into force 26 July 2007; US entry into force 6 March 2002)
WIPO Performances and Phonograms Treaty adopted 20 December 1996, S. Treaty Doc. No. 105-17, 36 ILM 76 (1997) (Australia entry into force 26 July 2007; US entry into force 20 May 2002)
Other
Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the Harmonisation of Certain Aspects of Copyright and Related Rights in the Information Society [2001] OJ L 167/10 <http://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:32001L0029>
Ficsor M (5 May 2014) Svensson: honest attempt at establishing due balance concerning the use of hyperlinks – spoiled by the erroneous ‘new public’ theory. <http://www.copyrightseesaw.net/archive/?sw_10_item=68>
‘Opinion of Advocate General Wathelet - GS Media BV v Sanoma Media Netherlands BV (Case C-160/15)’ (7 April 2016) <http://curia.europa.eu/juris/document/document.jsf?text=&docid=175626&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=4714>
‘Request for a Preliminary Ruling from the Hoge Raad Der Nederlanden (Netherlands) Lodged on 7 April 2015 — GS Media BV v Sanoma Media Netherlands BV and Others (Case C-160/15).’ <http://curia.europa.eu/juris/document/document.jsf?text=&docid=164772&pageIndex=0&doclang=EN>
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Foong, C. (2018). The Making Available Right: Problems with “the Public”. In: Gilchrist, J., Fitzgerald, B. (eds) Copyright, Property and the Social Contract. Springer, Cham. https://doi.org/10.1007/978-3-319-95690-9_13
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