De Wolf and Partners (2014b)
|De Wolf and Partners (2014b)|
|Title:||Study on the Making Available Right and its Relationship with the Reproduction Right in Cross-border Digital Transmissions|
|Author(s):||De Wolf & Partners|
|Citation:||Study on the Making Available Right and its Relationship with the Reproduction Right in Cross-border Digital Transmissions, De Wolf & Partners (2014).|
|Link(s):||Definitive , Open Access|
|Key Related Studies:|
|About the Data|
|Data Description:||International comparison and interpretation of statutes and legal definitions.|
|Data Type:||Secondary data|
|Secondary Data Sources:|
|Data Collection Methods:|
|Data Analysis Methods:|
|Cross Country Study?:||Yes|
|Government or policy study?:||No|
|Time Period(s) of Collection:||
The Study on the territoriality of the making available right assessed how to localize the act of making available to the public and its consequences on selected issues such as the rules of enforcement, the provisions on authorship, ownership and transfer of rights, and the impact of that relation with the reproduction right. The Study identified the existence of different acts of reproduction – upstream and downstream – in the process of the act of making available, that may complicate the licensing of works for online use and have an impact in terms of conflicts of laws in case of infringement. However, the Study observed that the InfoSoc Directive does not regulate the relation between the making available right and the reproduction right. Both rights are autonomous and can apply cumulatively, so that a single technical act may simultaneously fall under the making available and the right of reproduction, even if those rights are managed separately. In a second part, the Study analyzed two criteria that could help localizing the making available right (country of origin principle and place of the exploitation of the work) and assessed which consequences they would have on the selected topics. It showed that these localization criteria would not solve the bottlenecks found under the current state of law with regard to the reproduction right, as both the uploader and the end user having access to a work made available online would still face issues regarding the copies made in the course of the technological process used.
The present Study deepens the analysis of the relation between the making available right and the reproduction right. Considering acts of streaming and downloading, it examines whether the copies of works made through the technical process of making them available on the internet fall under the scope of art. 2 of the InfoSoc Directive, and whether these may be exempted under the exception for temporary copy or the exception for private copy provided by art. 5.
Main Results of the Study
Firstly, we have examined whether the definition of the exclusive rights and the qualification of online exploitations could provide a solution.
Secondly, there could be an obligation upon the author or initial right holder to transfer only coherent bundles of rights to the effect that the licensee acquires all rights it needs for a particular form of exploitation of a work or other subject matter. This obligation could be extended to subsequent transfers of rights by derived right holders.
Thirdly, the right holders’ ability to license their rights could otherwise be limited in order to facilitate the exploitation of works and other subject matter in several Member States. One option is to impose compulsory licences for the first download following the public availability of the work or other subject matter.
Finally, the territorial effects of the reproduction right can be attenuated to a certain extent by the modification of the exceptions. On the one hand, the exception for temporary acts of reproduction could be extended to emphasise the incidental character of the reproduction and its lack of independent economic significance vis-à-vis the making available to the public of the work or other subject matter. On the other hand, the exception for “private copies” could exempt certain downloads of works made available to the public.
Policy Implications as Stated By Author
The Study examined various legal constructions to deal with the different territorial impact of the making available right and the reproduction right and, more in particular, to localise the reproductions following directly from the public availability of a work or other subject matter according to the localisation criteria proposed in the previous Study. However, one construction does not all issues. More empirical (economic) data are required before a legislative initiative is taken in this domain and that it should be verified whether an approach per exploitation sector is more appropriate than a general and unique regime applicable to all types of works and all exploitation modes.