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

In 2000, within about four months, two WTO panels interpreted the three-step test – as provided in Article 13 (for copyright) and in Article 30 (for patent rights) of the TRIPs Agreement – in accordance with the provisions of the Vienna Convention on the Law of Treaties (which also binds Canada); the first panel, where the author of this paper was a member, in a patent case between the European Communities and Canada and then a second one in a copyright case between the European Communities and the United States of America. The two panels agreed on the basic aspects of interpretation; inter alia, on that the three conditions apply on a cumulative basis; thus, failure to comply with any of them results in an exception being disallowed. As the copyright panel has confirmed it, “Article 13 cannot have more than a narrow or limited operation. Its tenor… discloses that it was not intended to provide for exceptions or limitations except for those of a limited nature.” In contrast with the WTO panels, the Supreme Court of Canada (SCC) has not analyzed the provisions of the treaties at all; it has only based its „user rights” doctrine (for the application of fair dealing) on certain comments in a book of a Canadian academic quoting two US academics. The Court has interpreted the doctrine – in the CCH case – in a special way combining it with three elements: (i) the understanding that „user rights” does not only mean that the performance of certain acts are permitted, it also means that those “rights” are at least on an equal level but rather even superior to author’s rights; (ii) the principle of „large and liberal” interpretation of fair dealing and other exceptions (although the adjectives „large” and „liberal” are just the antonyms of the criteria of the three-step test according to which exceptions may only be applied in limited, confined, special cases); (iii) six factors to be taken into account to find fair dealing, all suggesting the superiority of „user rights” (among them the impact of fair dealing on the market (normal exploitations) of works, which also is only to be taken into account; a conflict with such exploitations – in contrast with the three-step text – is not supposed to be an obstacle to find fair dealing). The paper discusses in detail why and how the Canadian copyright law has got into conflict with the international treaties due to this pro-user case law – which became particularly conspicuous when applied in the Alberta (Education) case. By the 2012 Copyright Modernization Act, amending the Canadian Copyright Act (CCA), adopted nearly in parallel with Alberta (Education), the allowable fair dealing purposes have been extended to education in general without any specification whatsoever. This differs from the provisions of the international treaties (in particular Article 10(2) of the Berne Convention) and the national laws of Canada’s main trading partners where educational exceptions are limited to special cases, and – combined with the principle of „large and liberal” interpretation of fair dealing – has the potential of getting into even more serious conflict with the three-step test. The York decision of the Federal Court has raised the hope for reestablishing the concordance of the Canadian copyright law with the international treaties. It seems, however, that for this it would also be necessary to amend the CCA by limiting the application of educational fair dealing to special cases in accordance with the three-step test. The copyright laws of Canada’s key trading partners offer appropriate examples how this may be achieved.