1) The paper, of the great number of issues of interpretation of the provisions of Article 17 of the DSM Directive, only deals with three, mainly in reaction to a Recommendation adopted by a group of European academics (with whom other European academics do not necessarily agree); namely the questions of (i) whether or not the authorization to be obtained by the OCSSPs under Article 7(1) of the Directive may also take the form legal licenses; (ii) whether or not the pre-blocking procedure proposed in the Recommendations would be in accordance with Article 7(9) of the Directive providing for a post-blocking effective and expeditious complaint and redress mechanism, and (iii) whether or not the second subparagraph of Article 7 read together with Article 7(9) and recital (70) – and also taking into account the relevant norms of the Information Directive -- might be understood in a way that a special category of exceptions and limitations is established as “users’ rights” to be applied broadly. 2) In the paper, reference is made to those aspects of the Recommendations which are in accordance with the EU norms and the international treaties and also to those which may be usefully applied for the implementation of Article 17 of the Directive, but it suggest negative answers to the three questions mentioned in point 1) above, for the following reasons. 3) Article 7(1) of the Directive obligates OSSCPs to obtain authorization from the rightsholders for the use of works and related rights uploaded by their users and made available to the public. The Recommendations rightly note that the authorization in addition to direct licensing, mentioned in the provision as an example, may also take the form of collective licensing. In contrast, the thesis of the Recommendations according to which authorization may also be granted through statutory licensing is not in accordance with the text and the objectives of the provision of Article 7(1). Authorization by or on behalf of rightholders means authorization by or on behalf of rightsholders; statutory licensing is not authorization by or on behalf of rightsholders. 4) Article 7(9) of the DSM Directive provides for an effective and expeditious complaint and redress mechanism for users of OCSSPs in relation to their uploads to which access has been disabled or that has been removed – and not for a pre-blocking preliminary procedure to be carried out by the OCSSPs as suggested in the Recommendations to clarify whether or not OCSSPs are “allowed” to disable access to, or remove, uploads as provided in Article 7(4)(b) and (c). The Recommendations correctly point out that it would be justified to avoid the blocking of uploads that quite clearly are covered by exceptions mentioned in Article 7(4)(b) and (c). For this, however, the right solution would be due cooperation between OCSSPs and rightsholders and certain agreements or MoUs for this purpose (as foreseen in the Directive) and not the transformation of the post-blocking complaint and redress mechanism provided in Article 7(10) into the contrary; into a pre-blocking procedure. 5) Although the second subparagraph of Article 7(7) of the DSM Directive makes the application of certain exceptions mandatory, it does not introduce a new category of “users’ rights” to be applied “broadly”; those exceptions, as any others, are to be applied in a balanced way neither broadly nor narrowly as required by the three-step test.

In 2017, my website www.copyrightseesaw.net – due to a mistake of the company which maintained it – disappeared from the Internet. It was only in July 2018 that a new company was able to regain the majority of lost data and reconstructed the site. On 26 June 2018, a number of writings previously published were uploaded again (it is the reasons for which this date appears in connection with several papers). This study was not uploaded again. However, before the collapse of the website, it had been made available – in manuscript form – to several colleagues from whom time and again I receive inquiries where it is available as a “quotable” source. Therefore, now I upload it again. It was prepared on 13 December 2016 and offers a review of the interpretation and application of the rights of communication and making available to the public as it stated at that time, with special attention to the case law of the CJEU. Inter alia, it covers the issues of the unfortunate “new public” theory and the Court’s attempts to avoid its untenable consequences from SGAE through TvCatchup to Svensson, with BestWater as an anachronism and with certain corrections in GS Media; the concept of “public”; the problem of introducing commercial gain as a condition and the mixed success to correct the error in the light of the SCF (Del Corso) - Reha Training tandem; the question of so-called online exhaustion dealt with in contra legem manner in UsedSoft and Stichting Leenrecht and correctly in ReDigi; communications where different actors play roles as in the cases of Airfield and SBS Belgium; aspects related to the application of cloud technology offering “one-by-one” access, with reference to Aereo; and the role of online intermediaries as well as “false intermediaries” performing acts of making available to the public and the way this was addressed in the draft Directive of Copyright in the Digital Single Market. The study also contains an overview on how the right of interactive making available to the public has been implemented in various countries.

[This is an updated and modified version of my paper previously uploaded on this website under the title of ‘Tom Kabinet: there is no „online exhaustion” of the right of making available to the public even if it is characterized as distribution (as there is no real “e-lending” either)’. Now the judgement of the 2d Circuit adopted in the meantime is also analyzed, and certain corrections have been made.] In the US, the Appeals Court for the Second Circuit has affirmed the District Court’s decision in ReDigi and rejected the idea of “online exhaustion” of intangible copies of phonograms by finding that, where a copy is transmitted from a computer to the servers of the system and from there to the computer of another member of the public, unauthorized copies are made, and the right of reproduction is infringed (the Court has also found that such acts cannot be qualified as fair use). In contrast, the Court of Justice of the European Union (CJEU), in UsedSoft, introduced “online exhaustion” in those cases where “used” intangible copies of computer programs are transmitted online, and then in VOB found that “e-lending” of books is allowed. The Court applied “teleological” interpretation based on certain legal-political considerations with questionable harmony with the text and “preparatory work” of the relevant international and EU norms. It seemed, however, that the CJEU did not intend to extend “online exhaustion” to works other than computer programs and “e-lending” to works other than books. The optimism of commentators seemed to be justified because, in Allposters – although it concerned tangible copies – on the basis of a thorough analysis of the applicable provisions of the WCT and the Information Society Directive, the Court stated that the doctrine of exhaustion only applies to tangible copies. As the preliminary questions of the Dutch court submitted in the Tom Kabinet case show, the optimism has not turned out to be justified. The court’s questions seem to reflect the position that, if the arguments presented by the CJEU in UsedSoft for “online exhaustion” of computer programs are valid, they may be considered valid also for other works. In the paper, it is pointed out that, although it is possible to characterize interactive online making available to the public of intangible copies as distribution, rental or lending, this does not change the fact that, for the acts concerned, the provisions of the WCT and the Information Society Directive on the rights of (interactive) making available to the public and reproduction apply which do not exhaust. Only the right of distribution exhausts, but it only applies to tangible copies. This is acte clair and – in view of Allposters – also acte éclairé by the CJEU (at least, for works other than computer programs). When the provisions of the WCT and the Directive – which limited the right of distribution, and thus the exhaustion of the right, to tangible copies – were adopted, it had been fully taken into account in what aspects the acts of interactive online making available of works show “equivalence” with communication to the public or distribution. The reference to such “equivalence” does not justify the introduction of “online exhaustion”. The paper suggests that the legal-political objectives pursued by the CJEU in UsedSoft and VOB to make the secondary use of intangible copies possible could be (could have been) achieved more appropriately through the application of exceptions to and/or limitations of the rights of making available to the public and reproduction in certain special cases of the acts characterized by the Court as “distribution” or “lending”, provided that the cumulative criteria of the three-step test are duly fulfilled.

The paper – as it can be seen on its first page – had been prepared for the 21st Fordham IP Conference in 2013. At that time, the Nokia v. PC Box case was still pending. The Court of Justice of the European Union adopted its judgment (C-355/12 . ECLI:EU:C:201425) on 23 January 2014. The paper is uploaded in December 2018, taking into account that the issues of unauthorized circumvention of video games continue beeing on the agenda and the analysis and findings still seem to be relevant.

The short paper had been prepared for the Central and Eastern European Copyright Alliance (CEECA) - with permanent observer capacity at WIPO - in preparation of the participation of its representives in the 25th session of the WIPO Standing Committee on Copyright and Related Rights (SCCR) held in Geneva from November