Making available (right of)

The right of making available to the public is part of the right of communication to the public set out in Article 3(1) of Directive 2001/29/EC (the Copyright Directive or Infosoc Directive), which requires that EU member states must provide authors with the exclusive right to authorise or prohibit any communication to the public of their works by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them.

Case Law, CJEU, Communication (right of), European Union, Making available (right of), Netherlands, Technological measures

, (Institute for Information Law (IViR))/ /Leave a comment

Once again, the Court of Justice of the European Union (CJEU) will be asked to provide clarity on the concept of “communication to the public” as laid down in article 3 of the 2001 Copyright in the Information Society Directive (InfoSoc Directive). On 20 September 2024, the Dutch Supreme Court expressed its intention to refer…

AG Opinion, CJEU, Communication (right of), European Union, Making available (right of)

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On March 10th, 2022, the Advocate General (AG) Pitruzzella delivered his Opinion on the case RTL Television GmbH v Grupo Pestana S.G.P.S., S.A., et al (C-716/20). The case is an ideal example of the intricacy of the EU copyright law edifice regarding the right of communication to the public, which appears as a patchwork of…

CDSM Directive, Digital Single Market, European Union, Making available (right of), Press Publishers ’ Right, Remuneration (equitable)

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On 21st October 2021, Facebook announced that it has reached an agreement with APIG, an association of French press publishers, committing itself to the payment of licensing fees pursuant to the press publishers’ right introduced by the 2019 Copyright Directive. According to Facebook’s press release, the agreement “means that people on Facebook will be able…

Case Law, CJEU, Communication (right of), European Union, Infringement, Liability, Making available (right of), Technological measures

(University of Cyprus)/ /1 Comment

On March 9th, 2021 the CJEU delivered its eagerly awaited decision on the VG Kunst case (C‑392/19). The facts of the case are interesting, since the question of the lawfulness of frame linking and of inline linking was not directly raised. Instead, it appears indirectly in the context of the assessment of licence terms requiring…

Case Law, Germany, Infringement, Making available (right of), Software

(Institute for Information Law (IViR), University of Amsterdam)/ /1 Comment

On 28 March 2019, the German Federal Court (BGH) was asked to review a lower court’s decision on the legality of the unauthorised uploading of the 30 day free trial version of Microsoft software on an online trader’s website. This gave the BGH the chance to further clarify the applicability of the German Copyright Act…

CJEU, European Union, Germany, Legislative process, Making available (right of), Press Publishers ’ Right

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Following the CJEU’s judgment of 12 September 2019, the German national related right in favour of press publishers established in 2013 is unenforceable for formal reasons. But a new related right will be introduced shortly with the implementation of the DSM Directive. The competition law issues brought up in Germany will remain for the EU…

European Union, Making available (right of), USA

(Institute for Information Law (IViR) )/ /Leave a comment

Part 1 of this post explained the background to the development of shadow libraries and their growth in recent years. This post will analyse the nature of the works downloaded and discuss the implications of shadow libraries for the future of scholarly publishing. What is being downloaded? Over the 4.5 month period in 2014/15, 760,868…

European Union, Making available (right of), USA

(Institute for Information Law (IViR) )/ /3 Comments

Introduction In 2016, Science published a short report on the usage of SciHub, a piratical scholarly journal article distribution service. Set up by Alexandra Elbakyan, a kazakhstani scientist, SciHub allows users to bypass journal publishers’ paywalls, so everyone can have access to journal articles for free. The report, based on a dataset provided by Elbakyan,…

Case Law, Damages, Infringement, Making available (right of), Remedies, United Kingdom

, (Bristows LLP)/ /1 Comment

Recently there has been an increase in the number of damages hearings in the UK. The trend continues with a recent High Court case (Reformation Publishing v Cruiseco Limited [2018] EWHC 2761 (Ch)) where the band Spandau Ballet’s management company sought compensation for unauthorised use of their copyright against a company using two of their…

Digital Single Market, European Union, Germany, Legislative process, Making available (right of), Press Publishers ’ Right, Reproduction (right of), Spain

(Berkeley Law School)/ /2 Comments

This article will be forthcoming in the March 2019 issue of Communications of the ACM, a computing professionals journal. The editors of Communications of the ACM have given permission for it to be pre-published for the Kluwer Copyright Blog.         Should European press publishers be granted a new intellectual property (IP) right…