Making sense of the "making avilable" right....

I have read of two very different schools of thought as to what the "making available" right is all about; one that further complicates copyright by making more people liable for the same act, and the other than simplifies copyright by clarifying what individual is responsible for unauthorized activities on the public part of new-media networks like the Internet.

In the case of new-media such as the Internet, the form of making available is the form discussed under Article 8: Right of Communication to the Public of the 1996 WIPO Copyright Treaty.

Without prejudice to the provisions of Articles 11(1)(ii), 11bis(1)(i) and (ii), 11ter(1)(ii), 14(1)(ii) and 14bis(1) of the Berne Convention, authors of literary and artistic works shall enjoy the exclusive right of authorizing 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 these works from a place and at a time individually chosen by them.

The school of thought promoted by the recording industry/etc is that "making available" represents yet another way to find more people in violation with copyright law. They believe that you are infringing simply by putting a file in a filesharing folder (before anything is actually communicated to the public), you can be guilty of unauthorized communicating by telecommunications ("uploading"), and you can be guilty of unauthorized reception ("downloading).

The more sensible school of thought is that "making available" narrows the law to better define the party who is responsible. Rather than the backward-looking of the recording industry, this is a forward-looking policy proposal that recognizes the unique nature of modern citizen-controlled communications media and the ways that it is different than old-media broadcast and/or publishing.

In this case it is the person who first makes something available to the public (the first uploader) who is responsible for any infringement. Once something is "available to the public" it is then understood that the public has no reasonable way of knowing that further sharing/downloading of this material is unauthorized and they should not be independently held liable for infringement. This means that it is the person who adds a file to a filesharing network (IE: distributes it -- not just adds it to a directory) that is liable, not the other people innocently sharing/downloading it after the fact.

This thinking also extends to things like mirrors, archives, or people surfing the net. Should Google be claimed to be infringing copyright because a webmaster puts an infringing file on their website and Google quite legitimately copies and indexes it? Only the webmaster of the originating site that should be liable for infringement, not Google , other sites like , or people innocently surfing the web and dowloading the file.

It is both interesting and frustrating that the special interest lobbiest in old-media companies like the *RIA* , MPAA/CMPDA/etc and the television networks have convinced most parliaments and judges that the first school of thought is correct. This is their way to hold back progress by seeking to further impose on new-media some of the extreme limitations for the expansion of culture that existed in old-media.

Quoting the WIPO treaties often doesn't help understand what was meant. The 1996 WIPO treaties are full of clauses that make absolutely no sense to technically literate people. As a technical person who is involved in providing technological protection measures to protect privacy and authenticity, I then read Article 11: Obligations concerning Technological Measures:

Contracting Parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under this Treaty or the Berne Convention and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law.

Except that, as I have written before, technological protection measures (TPMs) cannot be used to protect copyright, which is the only right discussed under this treaty or the Berne Convention. TPMs can keep a communication private between two parties (or two devices), and it can be used to verify the authenticity of the communication, but this type of technology can not directly protect copyright. As past CEO of the RIAA Hilary Rosen will confirm, the unintended consequences of the indirect ways that TPMs are abused in DRM to restrict copying (authorized or not) are very harmful.

This is the type of technologically-illiterate laws we have been seeing thus far, and educating policy makers to reject this antiquated "flat earth" thinking should be job#1 for many of us.

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