The (new?) Right of making available to the public

Abstract
The Berne Convention 1971 Paris Act covered the right of communication to the public incompletely and imperfectly through a tangle of occasionally redundant or self-contradictory provisions on "public performance," "communication to the public," "public communication," "broadcasting," and other forms of transmission. Worse, the scope of rights depended on the nature of the work, with musical and dramatic works receiving the broadest protection, and images the least; literary works, especially those adapted into cinematographic works, lying somewhere in between. The 1996 WIPO Copyright Treaty rationalized and synthesized protection by establishing full coverage of the communication right for all protected works of authorship. The WCT also introduced a new designation, the "right of making available to the public." This right corresponds to much communication of works over the Internet, whose users "access these works from a place and at a time individually chosen by them" (WCT art. 8). As the drafters of the WCT (and its companion "Internet treaty" the WIPO Performers' and Phonograms Treaty, arts. 10 and 14) sought to modernize the Berne Convention to address new exploitations by means of new technologies, one might infer that the "right of making available" is something new and different, not previously within the Berne Convention minimum rights protected. If so, then Berne Convention members who have not yet ratified the WCT are not obliged to enforce foreign Berne Union authors' rights of making available (unless that country's own authors enjoy such a right, in which case the principle of national treatment would require extending the same protection to Unionist authors). The WCT has entered into force, but many Berne Member States have yet to ratify the treaty. As a result, the determination whether the "right of making available" is a substantive enlargement of Berne Convention rights, rather than a reaffirmation of the scope of the rights already mandated by Berne, carries practical consequences. Another practical consequence of the characterization of the "making available" right concerns its amenability to compulsory licensing. To the extent the right was comprehended within the Berne Convention art. 11bis broadcasting and retransmissions rights, Member States may subject it to compulsory licensing. Were the right either outside the Berne Convention altogether, or included only within the "communication to the public" rights set out in other articles of the Berne Convention, then Member States must treat the making available right as an exclusive right.
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