Copyright Office Releases Report on the Right of Making Available
Issue No. 609 - February 23, 2016

The U.S. Copyright Office today released The Making Available Right in the United States: A Report of the Register of Copyrights. The Report follows a multi-year study to review and assess the application of the “making available” right under U.S. copyright law. Two international treaties—collectively known as the WIPO Internet Treaties—require the United States to provide such a right, which gives copyright owners the exclusive right to authorize the on-demand transmission of their works to the public. Although the United States did not adopt express “making available” language when it implemented the WIPO Internet Treaties in 1998, the longstanding consensus across the U.S. government has been that the exclusive rights under the Copyright Act collectively provide the substance of the making available right.

Concurring with that view, the report concludes that U.S. law provides the full scope of protection required by the treaties, and that therefore no statutory change is currently necessary. The report provides historical context and legal background to assist in understanding how U.S. law implements the making available right. It recommends that Congress continue to monitor case law developments in this area and briefly outlines potential legislative options that could be explored, should they be necessary, to clarify the law’s intended scope.

The full report is available here.