Making Available Study

The U.S. Copyright Office has completed a study assessing the state of U.S. law recognizing and protecting copyright holders’ exclusive right of “making available.” Two international treaties to which the United States is a party—the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty (collectively, the “WIPO Internet Treaties”)—require member states to recognize such a right, which gives authors, producers, and performers the exclusive right to authorize the transmission of their works and sound recordings to the public through interactive platforms that enable members of the public to choose where and when to access them.

The United States implemented the WIPO Internet Treaties through the Digital Millennium Copyright Act (“DMCA”) in 1998. Congress did not, however, amend U.S. law to include explicit references to “making available,” concluding that the exclusive rights in Section 106 of the Copyright Act are sufficient in any given instance to provide the substance of the relevant Treaty provisions. The lack of explicit statutory references, however, has led some courts and commentators to express uncertainty over how the existing rights in Title 17 may apply to various methods of making of copyrighted works available to the public in the digital environment.

At the request of Congress, the Copyright Office reviewed and assessed (1) how the existing bundle of exclusive rights under Title 17 covers the making available right in the context of digital on-demand transmissions such as peer-to-peer networks, streaming services, and music downloads, as well as more broadly in the digital environment; (2) how foreign laws have interpreted and implemented the relevant provisions of the WIPO Internet Treaties; and (3) the feasibility and necessity of amending U.S. law to strengthen or clarify our law in this area.

During its review, the Office solicited public comments and held a public roundtable in Washington, D.C. Through the public comments and roundtables, the Office heard a variety of viewpoints on a wide range of issues impacting the making available right in the United States. These views informed the Office’s ultimate conclusions and recommendations.

The Office released its final report, entitled The Making Available Right in the United States: A Report of the Register of Copyrights, on February 23, 2016.