Book review: The Making Available Right

This Kat is delighted to review The Making Available Right: Realizing the Potential of Copyright’s Dissemination Function in the Digital Age by Cheryl Foong (Lecturer, Curtin Law School, Australia).

This book suggests that copyright has an underserved function – dissemination. And that this dissemination function can be served through a principled interpretation of the making available right. It sets out to demonstrate the utility of the making available right as a tool for advancing copyright’s dissemination function (disseminating the works to the public).

In essence the book identifies and explains the necessary steps for copyright’s development in a world where access is the key driver of content dissemination markets.

The book is presented in four parts. Part 1 begins with the broader context and foundations of copyright law, highlighting the limited understanding of the dissemination function. Part 2 explores the rationale for the making available right and its implementation. Part 3 dives deeper into themes serviced in part 2, i.e. the concepts of “the public”, and the “act” of making available. Part 4 moves to provide a principled approach to the making available right, using a conceptual framework for understanding the right within the dynamic internet environment.

PART I – "Theoretical and Contextual Framework" - provides two chapters. Chapter 1 sets out the premise for the book, followed by Chapter 2, which covers copyright history, theory and context for the book. An overview of copyright history from the Statute of Anne, through the public performance right, to the protection of broadcasts, and the impact of the internet as a decentralised communication network, including acknowledging cloud and phone-based applications. It then describes four theoretical foundations of copyright; 1) utilitarian / economic, 2) labour / natural rights, 3) personality, and 4) social-planning theory. Foong acknowledges the limitation of each theory and in particular the omission of how the dissemination of copyright content will occur using evolving communication technologies. Considering Tim Wu’s approach as a remedy for this oversight, Foong advocates for a communication policy based on dissemination rivalries(competition between intermediaries that disseminate copyright works), stating:

Instead of viewing technological change as a problem that requires copyright law’s response, we could consider whether copyright, through its regulation of dissemination rivalries, has an active role in guiding technological innovation in a positive sense.

PART II – "International, Regional and National Development" - consists of two chapters. Chapter 3 - "The Internet Treaties: Introducing the making available right" - considers the background to the World Intellectual Property Organization Internet Treaties (World Copyright Treaty and WIPO Performances and Phonograms Treaty) within the existing framework of the Berne Convention and TRIPS agreement. Foong notes that the making available right was drafted in broad, ambiguous and technologically neutral terms, and flexibility for implementation was afforded to member states. However, the limits of the right are unclear, resulting in disputes testing the scope of its meaning. Building on this investigation, Chapter 4 - "National and Regional Implementation: US, EU and Australia" – provides a substantive analysis on the varying approaches taken by the aforementioned jurisdictions.

PART III – "Underlying Problems and Lessons for Reform" – looks deeper into the issues highlighted in chapter 4, beginning with Chapter 5 - "Interpreting 'the public': A focus on copyright owners’ perspectives". In particular, it looks at the conceptual difficulties of the meaning of “the public”, presenting options for how these challenges could be faced. Chapter 6 - "Interpreting the 'Act': Superficial Analysis of a Crucial Element" – undertakes a similar investigation into what constitutes an “act” of making available. Foong argues that clarity is needed on the judicial interpretation of the making available right. The current decisions lack transparency, Foong states, and future decisions should take the dissemination function of copyright into account in a transparent manner. 

Real life footage of this cat
and her broken elbow!
Image: Annette

Lastly, PART IV – "Solutions and Future Pathways" – includes Chapter 7: "A conceptual framework for the future". The chapter presents a framework that consists of a number of interrelated principles to guide the development of the right in a more transparent manner. It offers a clear structure for judicial reasoning, provides insights for lawmakers as well as a path forward for industry stakeholders. Chapter 8 closes the book with a short conclusion titled- Towards principled and transparent decision-making Index.

This book provides a clear and substantive roadmap to the future of the making available right in the digital age. Whilst deeply grounded in the theoretical, Foong presents a practical and reasoned solution to a clearly identified issue. This is an important body of research that can have real impact on the future of copyright. 

Ultimately, the book exposes the making available right as a beacon for a sustainable copyright system in an environment that prioritizes access.

The framework for analysis presented in this book could be utilised by courts, legislators and industry to bring transparency and coherence to the discussion and decisions on the scope of the marking available right. This book will therefore be of great interest to the aforementioned, in particular policy makers, litigators, judges, as well as researchers and students with an interest in modern copyright law and policy.

Available from the publisher Edward Elgar £90.00

ISBN: 978 1 78897 817 0

Extent: 320 pp

Also available as an ebook: ebooks.com £20.82, Vital Source $40, Google play £21.60