The Restricted Act of Making Available and Communication to the Public in the European Union

Abstract

In retrospect, perhaps the most significant innovation to have been introduced into the law of copyright and related rights by the WIPO Copyright Treaty and the WIPO Performers and Phonograms Treaty of 1996 was the new restricted act of “making available to the public” for both copyright in the strict sense and for related rights in sound recordings and fixations of performances, although for copyright such restricted act is also included within the broader restricted act of “communication to the public”. Enacted in the European Union by Directive 2001/29/EC on the Copyright in the Information Society, this type of restricted act has been the subject of more case law at the Court of Justice of the EU than any other provision of this Directive, which has in turn been the subject of more case law than all other EU copyright and related rights Directives together. This article reviews how such case law has developed, and how the Court of Justice has sought to modify its initial formulation of this type of restricted act in the context of its application to various activities on the Internet.