The rights of communication and making available to the public: key issues of implementation and application
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.