(B
(B--
(B** Alexandre Dulaunoy (adulau) **** http://www.foo.be/ **** 0x44E6CBCD
(B**/ "To disable the Internet to save EMI and Disney is the moral
(B**/ equivalent of burning down the library of Alexandria to ensure the
(B**/ livelihood of monastic scribes." Jon Ippolito.
(B---------- Forwarded message ----------
(BDate: Tue, 30 Nov 2004 10:42:28 +0100
(BFrom: Andrea Glorioso <[EMAIL PROTECTED]>
(BTo: [EMAIL PROTECTED]
(BSubject: [c-what] [PAPER] The (New?) Right of Making Available to the Public
(B
(BCiao a tutti.
(B
(B+++
(B
(Bhttp://lsr.nellco.org/columbia/pllt/papers/0478/
(B
(BThe (New?) Right of Making Available to the Public
(BJane C. Ginsburg, Columbia Law School
(B
(BPublished in the following book: pp. 234-47 of David Vaver and Lionel
(BBently, eds. "Intellectual Property in the New Millennium, Essays in
(BHonour of William R. Cornish," Cambridge Univ. Press, 2004.
(B
(BABSTRACT:
(B
(BThe Berne Convention 1971 Paris Act covered the right of communication
(Bto the public incompletely and imperfectly through a tangle of
(Boccasionally redundant or self-contradictory provisions on "public
(Bperformance;" "communication to the public," "public communication,"
(B"broadcasting," and other forms of transmission. Worse, the scope of
(Brights depended on the nature of the work, with musical and dramatic
(Bworks receiving the broadest protection, and images the least;
(Bliterary works, especially those adapted into cinematographic works,
(Blying somewhere in between. The 1996 WIPO Copyright Treaty
(Brationalized and synthesized protection by establishing full coverage
(Bof the communication right for all protected works of authorship. The
(BWCT also introduced a new designation, the "right of making available
(Bto the public." This right corresponds to much communication of works
(Bover the Internet, whose users "access these works from a place and at
(Ba time individually chosen by them" (WCT art. 8).
(B
(BAs the drafters of the WCT (and its companion "Internet treaty" the
(BWIPO Performers' and Phonograms Treaty, arts. 10 and 14) sought to
(Bmodernize the Berne Convention to address new exploitations by means
(Bof new technologies, one might infer that the "right of making
(Bavailable" is something new and different, not previously within the
(BBerne Convention minimum rights protected. Whether the "right of
(Bmaking available" is a reaffirmation or an enlargement, its actual
(Bscope remains to be ascertained. This Essay will explore the meaning
(Bof "making available" in the WCT and "communication to the public" in
(Bthe Berne Convention by applying these concepts to several of the
(Bprincipal forms of communication over the Internet. How, for example,
(Bshould one analyze communications to and from websites, or
(Bpeer-to-peer exchanges, or email, under the Berne Convention? What, if
(Banything, do the WIPO Treaties add to the analysis?
(B
(BSome of the WIPO Treaties' provisions may fairly be deemed to reaffirm
(Bthe scope of rights already present in the Berne Convention, while
(Bothers clearly add new protections to the range of minimum rights. The
(BWIPO Treaties have significantly expanded the subject matter coverage
(Bof the Berne Convention”Ēs communication to the public right, filling
(Bin the kinds of blank spots that this Essay's analysis exposes. The
(BWIPO Treaties have also eliminated the disparate treatment of wired
(Band wireless transmissions. The core concept of "making available,"
(Bhowever, can fairly be called neither a reaffirmation nor a novelty,
(Bfor it resolves an ambiguity as to whether the old communication to
(Bthe public rights accommodated or excluded "pull technologies." This
(BEssay has concluded that if Berne did not mandate the inclusion of
(Brecipient-initiated transmissions, neither did it preclude them. The
(Bright may have been incipient, but there was sufficient uncertainty to
(Bleave room for Member State interpretation. As a result, it is
(Bappropriate to mark the "making available" right as a
(Bclarification. The text of article 8 of the WCT lends further support
(Bto this view of the communication to the public right because it
(Bencompasses the "making available" right within the general exclusive
(Bright of communication to the public.
(B
(BAs for the scope of the "making available" right, not all forms of
(Bcommunication of works over the Internet come within its
(Breach. Moreover, some of the excluded (or at best ambiguously covered)
(Bcommunications may be economically significant. This suggests that,
(Bdespite the aim of the WIPO Treaties' enactors to assure "effective
(Band uniform" "protection of the rights of authors," technology may
(Bcontinue to outstrip the ingenuity of the drafters of multilateral
(Binstruments.
(B
(B+++
(B
(BCiao,
(B
(B--
(BAndrea Glorioso [EMAIL PROTECTED] +39 333 820 5723
(B .:: Media Innovation Unit - Firenze Tecnologia ::.
(B Conquering the world for fun and profit
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