“Making Available”
Where does it occur?
What law Applies?
Jane C. Ginsburg
Columbia University School of Law
ALAI-USAScenario: Storage in Country A, Accessin Country B• Impetus: computing resources; “forumshopping” (applicable law shopping)• Complications: Storage in multiple countries;
country of access may lack significant
relationship to accessing user (e.g. Pierre,French resident, visits Japan and accesses
work while in hotel in Kyoto; Jane, USresident, takes train from France to Belgium,
accesses work as train crosses border)

Localizing “Making Available”• From (initiation): seat or residence of sender• To (impact): seat or residence of recipient• Which? Or Both? Points between as well?
• AG opinion Football Dataco v Sportradar (21June 2012) (1996 Database directive“reutilization” right; but indistinguishable
from 2001 Infosoc directive “making available”
right, cf paras 39. 41)

Dispersal of place of act• “Emission” v “ Reception” inappropriate for internet(paras 50, 55)• 59. “‘re-utilisation’ is not usually a single act but thesequential succession of a number of acts which,having as their purpose the ‘making available’ of
certain data via a networked and multi-polar
communication medium, occur in that medium as aresult of the actions of individuals located in different
territories, the conclusion must be that the ‘place’ ofthe ‘re-utilisation’ is that of each of the acts needed toproduce the result comprising the ‘re-utilisation’, thatis to say, the ‘making available’ of the protected data.”

Here, there and everywhere60. ”Consequently, . . . the act of re-utilisation
under examination occurred as a result of asequence of actions in a number of Member
States and must be regarded as having takenplace in each and every one of them.”
61: Server in Member State A; requesting user inMember State B: Act of reutilization (implicitly,making available) “takes place in both Member
States”

So which country’s law applies?
Relevant supranational PIL norms?
Lex loci delicti (commisi/damni) ; lexprotectionis
Berne Convention 5.2 : Country « where » (forwhich?) protection claimed : destination/targetof communication ? Source of communication?
Both?

“Rome II”
Regulation (EC) No 864/2007 of the European Parliamentand of the Council of 11 July 2007 on the law applicable
to non-contractual obligations (Rome II)
Recital 26: Regarding infringements of intellectual
property rights, the universally acknowledged principle ofthe lex loci protectionis should be preserved. For thepurposes of this Regulation, the term ‘intellectual
property rights’ should be interpreted as meaning, forinstance, copyright, related rights, the sui generis right forthe protection of databases and industrial property
rights.

Art. 8 Infringement of Intellectual
Property Rights
1. The law applicable to a non-contractual
obligation arising from an infringement of an
intellectual property right shall be the law of thecountry for which protection is claimed
Where is that? Problem of “délit complexe”
Resort to residual rule in art. 4

Article 4: General rule
1. Unless otherwise provided for in thisRegulation, the law applicable to a noncontractual obligation arising out of a tort/delict
shall be the law of the country in which thedamage occurs irrespective of the country inwhich the event giving rise to the damage
occurred and irrespective of the country orcountries in which the indirect consequences ofthat event occur.

Art. 4, exceptions to general rule• 2. However, where the person claimed to beliable and the person sustaining damage bothhave their habitual residence in the same country
at the time when the damage occurs, the law ofthat country shall apply.
• 3. Where it is clear from all the circumstances of
the case that the tort/delict is manifestly moreclosely connected with a country other than thatindicated in paragraphs 1 or 2, the law of that
other country shall apply. . . .

ALAI national reports: country ofinitiation v. country of impact• Belgium: Copiepresse (Brussels Court of Appeals, May 2011) law ofcountry where harm impacts• Croatia: PIL law art 28: either initiation or impact, wherever illicit (?)• Finland (penal code): Finnish law if act directed toward national orresident of Finland• France: caselaw inconsistent, but SAIF v Google (Paris Court ofAppeals 26 Jan 2011) between country of initiation and of impact,
most significant relationship applies, French users targeted• Hungary (PIL law): lex protectionis (impact)• Italy (Pirate Bay SCt 2009) country of download (impact)• Japan (PIL law) impact unless unforeseeable• Norway; Poland: Rome art. 8 (lex protectionis)• US: (caselaw) US law applies to infringing acts impacting oroccurring at least in part in US (including predicate act)de lege ferenda
ALI Principles (2008), art. 301: “the law of eachState for which protection is sought”
Rationale: “The formulation ‘each country forwhich protection is sought’ is compatible with amarket-oriented approach; it corresponds to themarkets that plaintiff seeks to protect frominfringements that are occurring (or threatenedto occur) there.” Commercial impact

Examples for discussion• Individual off-site storage: e.g. Dropbox – no“making available” because while storage
service made available to public, availability ofparticular works remains private• Centralized off-site storage: iCloud, etc. –making available from [Apple’s seat] tocustomers wherever located/resident

Examples, continued• “Shared” off-site storage: e.g. Megaupload – fromMegaupload’s seat? From uploading users’
residences? To users wherever located/resident• Off-shore streaming - From service’s seat tocustomers wherever located/resident.
• Off-shore collections of links to 3d party
streaming or download sites (located in multipleother countries) Who is making available?
Collector of links? Linked-to sites? [Annette Kur]