Letter from the U.S.: Exclusive Rights, Exceptions, and Uncertain Compliance with International Norms – Part I (Making Available Right)

This Letter from the U.S. addresses U.S. compliance with its international obligation to implement the “making available right” set out in art. 8 of the 1996 WIPO Copyright Treaty. The “umbrella solution” which enabled member states to protect the “making available to the public of [authors’] works in such a way that members of the public may access these works from a place and at a time individually chosen by them” through a combination of extant exclusive rights, notably the distribution right and the public performance right, has not in the U.S. afforded secure coverage of the full scope of the right. Lower courts have divided over the application of the distribution right to offers to make works available for download. The Second Circuit’s interpretation of the public performance right in ABC v Aereo jeopardized application of that right to on-demand streaming. The Supreme Court’s reversal in Aereo has narrowed the gap between domestic law and international norms, but leaves many questions.In assessing the impact of the Supreme Court’s Aereo opinion on the state of U.S. compliance with the WIPO Treaties’ “making available” right, I focus on four issues: a. coverage of a-synchronous transmissions;b. identification of “the public” and “members of the public” consistently with their meaning in the WIPO Treaties;c. interpretation of the public performance right in a way that does not limit the right to actual transmissions, but instead encompasses offers to transmit performances of works.d. the relevance of a “volition” prerequisite to application of the public performance and reproduction rights, and the consistency of any such prerequisite with international norms.I conclude that the Supreme Court’s Aereo opinion alleviates some concerns about the conformity of U.S. copyright law with international norms, but the limited scope of the decision allows other shortcomings to persist. Thus, the Supreme Court has reaffirmed the reach of the public performance right with respect to:- near-real time individualized digital retransmissions to members of the public of broadcast content (akin to cable retransmissions);- a-synchronous transmissions to members of the public when the primary value of the service to its customers is to transmit performances of content the customers did not themselves store with the service, or regarding which the customers did not enjoy some possessory relationship to a copy or right to access.Although the Court did not expressly state that the public performance right encompassed offers to transmit performances as well as actual performances, the logic of the decision points toward the broader (and internationally harmonious) interpretation.The majority did not apply a specific “volition” predicate to determine whether a retransmission service “performs” the content it communicates, but it acknowledged the possibility that in some instances the end-user might be deemed the “performer.”The Court has not directly ruled on the following issues:- Whether remote storage services are publicly performing content stored at the direction of their customers (but the opinion strongly suggests those services are not publicly performing);- Whether “volition” is a predicate to determine whether a remote storage service “makes” the consumer-requested copies created and retained on its servers;Perhaps most importantly, because Aereo concerned only the public performance right, the Court did not have occasion to address whether the distribution right encompasses offers to distribute digital copies, or is limited to actual distributions of digital copies. As a result, the greatest inconsistency between U.S. compliance and its international obligation to implement the “making available” right remains unremediated.