Update: USCO extends comment submission deadline to September 15, 2014

Copyright Office Extends Period for Submission of Further Comments on Rights of “Making Available” and “Communication to the Public”

The Copyright Office has published a Federal Register notice extending the deadline for public comments that address topics listed in the Office’s July 15, 2014 Request for Additional Comments on the rights of “making available” and “communication to the public.” Comments are now due by 5:00 p.m. EDT on September 15, 2014. For more information, including the complete notice and the comment submission form, please see www.copyright.gov/docs/making_available/.

Compliance Required under WIPO Internet Treaties

The United States, as a party to the WIPO Internet Treaties, is obligated to "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."

Clarifications to existing statute needed

According to the USCO's NewsNet, July 15, 2014, Issue 550:

"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."

Complete information can be found here.

What is the "Making Available Right" in non-technical speak?

Unfortunately, this is quite hard to discover for the concerned lay person. If you looked at the actual law (pdf) dealing with WIPO Treaties Implementation, you would conclude that legislators truly wanted to confuse the public. This Wikipedia entry makes the issue a bit more understandable but not that helpful for the purposes of the USCO's call for comment. So far, IFPI offers the most intelligible interpretation: The WIPO Treaties: ‘Making Available’ Right (pdf).

Make your voice heard!

USCO seeks comments from the public, closing August 14, 2014. See the form here.

The Office held a public roundtable on this issue in Washington D.C. on May 5, 2014. The transcription is available here (pdf). Unfortunately, the transcript is formatted in such a way as to make cogent reading and search-ability truly scream-worthy. We wish the USCO would present transcripts that can be easily read and indexed using modern layout principles.

Why should image makers care?

One voice on the panel represented image makers: Nancy Wolff, counsel for PACA Digital Media Licensing Association. Part of her remarks, presented below, gives one an idea how she felt the courts misinterpreted the rights of image makers in public display of their works and why the law should begin to clarify and address things like the illegal practice of copy-pasting images, even high resolution images, from an originating site to one that is unauthorized to display them and giving no reference to their origin, i.e., pirating an image.

Bold text has been used highlighting key phrases for clarity. The except is a bit difficult to understand out of context. Stay tuned for clarifications.

"MS. CLAGGETT: Okay. I want to turn to Ms. Wolff next.

"MS. WOLFF: Sort of a segue, because the aspect I was interested in is the communication right, in particular, the right of display. Because I think if you are looking at that right, and if you look at the 106 rights, that we do have the right to publicly display works.

"But I think the courts have misinterpreted, and they have done what Andrew Bridges has said; you know, we should be separating now distribution from display. The courts, unfortunately, have tied reproduction to display, and I think they have misinterpreted the display rights, such that visual artists really don't have a making available right with works once they are online.

"And I think it started with the Perfect 10 v. Amazon case, where they limited the process in which you communicate a visual work to one in which it is served on that particular server. So, I think the server test, unfortunately, couples the reproduction right with the display right. And I think that too narrowly interprets the right of display, which deals with the right to transmit or otherwise communicate the display of the work to the public by means of any device or process.

"So, what happens is, if you use clever technology devices, you can essentially cut and paste an image and do inline linking or framing. So that the end-user, the one who is viewing the communication just sees now even a large high-res image which doesn't even now relate back to the original site where it came from.

"So, by not having it on the server, there is no actual copying. So, you never have any direct infringient. And unfortunately, it creates the actors who are making available images, and in many cases now not even the thumbnails that were in the Perfect 10 case, but high-res, large images to the public. And it is causing very decreased traffic to the site which has legally authorized the display of the image and has a very high increase in piracy, when it is very easy just to right-click a high-res image.

"So, that is where I think that the courts have really taken some missteps in looking at the display right and requiring that there has to be a copy on a server of the direct infringer."

U.S. Copyright OFfice, PUBLIC ROUNDTABLE ON THE RIGHT OF MAKING AVAILABLE transcript, p. 97

Confused?

We realize we may have raised more questions than we have answered. We apologize. Clear explanations are not easily available at the moment but we hope our attempt might provide a handle on how to begin unwindng this topic as it applies to your own creative discipline. "Right to Communicate" is an important issue neither fully understood nor well communicated, whether now or at the time of passage.

We all publish to the internet. Thus, the issue affects all our rights as creators.