Dr.

Mihly Ficsor Member and Honorary President of the Hungarian Copyright Experts Council, former Assistant Director General of WIPO ceeca@t-online.hu 6 March 2013 Expert opinion on the international norms on the right of making available to the public and on its application in countries where it has been implemented I. Introduction
This expert opinion has been prepared at the request of the Society of Composers, Authors and Music Publishers of Canada (SOCAN). SOCAN has asked me to answer the following four questions in this expert opinion: Question 1: What was the intention of the drafters of the provisions on the making available right in the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT) and how this is reflected in the Treaties? Question 2: What influence, if any, the nature/purpose of subsequent transmission (streaming or downloading) is supposed to have on the completion of the act of making available covered by this right? Question 3: How has the making available right been implemented in other countries? Question 4: How is the making available right in musical works licensed in other countries, and how the remuneration is distributed depending on the nature/purpose of the transmission (streaming or downloading)? SOCAN has made available to me certain documents concerning recent legislative and case law developments in Canada (which I otherwise had followed with interest also before). Thus, I may take into account for my opinion (i) the decision of Copyright Board adopted on 18 October 2007, approving SOCANs Tariff No. 22.A (Internet Online Music Services) 19962006; (ii) the above-mentioned rulings of the Supreme Court of Canada adopted still before the entry into force of the CMA in which the Court found that the right of communication to the public is not applicable in the case of download online services; (iii) the decision of the Copyright Board adopted on 5 October 2012 (that is, still before the entry into force of the CMA) on SOCANs Tariff 22.A (Internet Online Music Services), 20072010 and CSI Online Music Services Tariff, 2008-2010 in accordance with the said ruling of the Supreme Court. I declare that, although it is SOCAN which has requested me to prepare this opinion, I do not represent SOCAN (or any other parties in the proceeding in front of the Copyright Board) in

the examination procedure and I submit my expert opinion in accordance with the relevant facts to my best knowledge and my professional persuasion on the issues involved.

II. Relevant professional experience

From May 1985 to January 1999, I served as Director, and, from September 1993, as Assistant Director General of WIPO in charge of copyright. My tasks included the preparation of documents for, and acting as the head of the Secretariat at, meetings on various copyright issues; advising governments and legislative bodies on the interpretation of international copyright norms; proposing, and commenting on, draft legislation (in particular, concerning the interpretation and implementation of the Berne Convention, the Rome Convention, the WCT and the WPPT); and the representation of the Organization at meetings of other intergovernmental and non-governmental organizations. In this capacity, I was the main responsible of the preparation of the two so-called Internet Treaties; the WCT and the WPPT. I participated in all the Committee meetings, in all world forums on the issues of digital technology, in all the regional consultations, and in all sessions of the Diplomatic Conference adopting the Treaties (of which I was the Secretary), including all the informal consultations where certain provisions were negotiated.1 As the key representative of WIPO in the preparatory work and in the negotiations, there were several issues where I had to act as a catalyst to forge some reasonable and generally acceptable compromise solutions. The legal characterization of the applicable exclusive right or rights for the acts of including works and objects of related rights in the Internet for interactive use (for any kind of use by those who may get access to them) was one of these issues. In fact, it seemed to be the biggest issue as potential obstacle to agreement between such key negotiating parties as the United States and the European Community. This thorny problem was solved through the so-called umbrella solution serving as a basis of the recognition of the right of (interactive) making available to the public which had been worked out by me and offered to the negotiating parties in the way described below. After the Diplomatic Conference, still in the position of Assistant Director General of WIPO until my retirement at the end of 1998, I played active role in the promotion of ratification of, accession to and due implementation of the two Treaties. Also since my retirement I have spoken about the Treaties, including their provisions on the right of making available to the public, at a great number of meetings around the world and have published several articles and books on them.

For a detailed description of the preparation of the two Treaties (as regards the provisions on the making available right), see Mihly Ficsor: The Law of Copyright and the Internet The 1996 WIPO Treaties, their Interpretation and Implementation, Oxford University Press, 2002 (hereinafter: Ficsor, Oxford (pp. 145-254).

At the request of the Organization, I have prepared the WIPO Guides to the WCT and the WPPT published in 20032 and I am the author of one of the two basic treatises on the two Treaties published by Oxford University Press in 2002.3 A short biography is attached to this opinion also reflecting my other professional activities, of which I only mention here that (i) before joining WIPO, between 1976 and 1985, I was the Director General of the Hungarian Copyright Bureau (and in that capacity, I represented my country at the copyright meetings of, WIPO and Unesco, and chaired several of them); (ii) I have had different roles in WTO dispute resolution procedures; inter alia, I was a member of the WTO panel which, in 2000, interpreted for the first time the three-step test for the application of IP exceptions; (iii) I was the Chairman of the Working Group which prepared the first draft of the Unesco Convention for the Protection and Promotion of the Diversity of Cultural Expressions finally adopted in 2007; and (iv) in my country, after my retirement from WIPO, since 2000 I have been a member of the Board of the Copyright Experts Council4 of which, until 2011 I was also the President and since then I have been the Honorary President.

III. Executive summary short answers to the questions

Question 1: What was the intention of the drafters of the provisions on the making available right in the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT) and how it is reflected in the Treaties? Answer: The intention which is duly reflected in the text of the relevant provisions of the two Treaties and which is also confirmed by their preparatory work was to provide for an exclusive right in order to control the decisive act of uploading and making accessible for interactive use of protected works and objects of related rights on the Internet irrespective of the nature/purpose of the transmissions that may take place in the course of such use. The relevant provisions of the WCT and the WPPT were adopted by the 1996 Diplomatic Conference on the basis of a unanimous understanding that the making available right is applicable both where the resulting interactive use takes the form of transmissions only allowing perception of and where they may result in downloading of the works (performances and/or phonograms) thus made available.

Mihaly Ficsor: Guide to the Copyright and Related Rights Treaties Administered by WIPO,WIPO publication No. 891 (E), 2003, (later also published by WIPO in translation into French (No. 891(F)) and into other official languages of WIPO) (hereinafter: WIPO Guide). 3 See note 3 above. 4 The 150-member Council, its 15-member Board and its President are appointed by the Minister of Justice, and the Hungarian Intellectual Property Office fulfills the role of its secretariat. It acts as an advisory body on governmental copyright policy issues; provides experts opinions for the courts, prosecutor offices and other authorities; and functions as a mediation forum in copyright disputes, in particular between collecting societies and users of works and objects of related rights as regulated in Articles 101 to 105 of the Hungarian Copyright Act (Act LXXVI of 1999 amended several times).

Question 2: What influence, if any, is the nature/purpose of subsequent transmission (streaming or downloading) supposed to have on the completion of the act of making available covered by this right? Answer: The act of making available to the public is completed as soon as the work or the object of related rights is made available by uploading it for interactive access irrespective of what kind of interactive use (streaming or downloading) is made possible, and it exists whether or not the work or object of related rights is actually transmitted at all. Question 3: How has the making available right been implemented in other countries? Answer: In the key markets, in general (in the overwhelming majority of countries), the right of making available to the public has been implemented adequately in accordance with the nature of the right reflected in the text of the relevant provisions of the WCT and the WPPT; that is, as an exclusive right to control the uploading of works and objects of related rights by offering interactive access irrespective of the nature/purpose of the use (streaming and/or downloading) and irrespective of the whether or not any actual interactive transmissions takes place. Question 4: How is the making available right in musical works licensed in other countries, and how the remuneration is distributed depending on the nature/purpose of the transmission (streaming or downloading)? Answer: The licensing of the making available right in musical works, in general, takes place by collecting societies managing performing (or representation) rights and mechanical rights. Where these rights are managed separately by performing rights and mechanical rights organizations, the two organizations normally offer joint licenses. The nature/purpose of the interactive use (whether streaming or downloading) irrespective of whether the repertoire of same organization covers these rights or two organizations grant joint licenses is taken into account in the shares due to the owners of the respective rights; usually in a way that, in the case of streaming, a bigger share goes to performing rights, while in the case of downloading, a bigger share goes to mechanical rights (on the understanding that the making available right is applicable in all these cases).

IV. Answers to the questions in detail

Question 1: What was the intention of the drafters of the provisions on the making available right in the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT) and how it is reflected in the Treaties? The WIPO Guide to the WCT describes the intention of the drafters of the provision on the right of making available to the public included in Article 8 of the WCT:
CT-8.1. In the course of the preparatory work of the WCT and the WPPT, there was agreement that the inclusion of works and objects of related rights in, and their transmission through, 4

the Internet and in similar possible future networks should be subjected to an exclusive right of authorization of authors. There was also quite a general wish to try to apply existing norms to this new phenomenon (since, on the basis of such norms, established practices had emerged, long-term contractual relations had been based, and so on). CT-8.2. When the existing rights were considered for the application of interactive transmissions, it had to be seen that digital interactive transmissions somewhat confused the borderline between the two traditional and clearly separated groups of rights: copyrelated rights and non-copy-related rights.5 CT-8.3. Digital interactive transmissions have confused the borderline between these two groups of rights in two ways. First, commercial dissemination of protected material in interactive networks may and certainly will take place with the application of technological measures which allow access and use only if certain conditions are met by the members of the public. Thus, the actual extent of the use is not necessarily determined at the moment of making available of a work or object of related rights and by the person or entity alone who or which carries out the act of making available. It is the given member of the public, who, through a virtual negotiation with the system, may obtain access and the possibility to use the protected material, and who, through this system, chooses whether the use will be deferred (on the basis of obtaining a more than transient copy) or direct (such as on-line studying of a database, on-line watching of moving images, on-line listening to music). Second, with digital transmissions, some hybrid forms of making available of works and objects of related rights emerge which do not respect the pre-established border between copy-related and noncopy-related rights (when a copy is obtained, it is also through the transmission of electronic impulses, and, when protected material is used on-line, even in real time, it also involves the making of at least temporary copies). CT-8.4. In view of this nature of interactive transmissions, it was hardly a surprise that, when it came to the question of which existing rights should be applied to cover such transmissions, the various countries did not find themselves necessarily on the same side of the copy-related rights/non copy-related rights border. Two major trends emerged: one trying to base the solution on the right of distribution; and the other one preferring some general communication to the public right. It was not merely on some theoretical bases that this or that country favored this or that solution. The positions very much depended on the existing national laws (which rights, for whom, and to what extent, existed), on the practices established, the positions obtained on the basis of those laws, and, as a consequence, on the related national interests involved. CT-8.5. When it became clear that the international copyright community was faced with two basic options the application of the right of distribution or the application of the right of communication to the public and, of course, also with the further possibility of combining these options somehow, it was soon recognized that the adoption of those options was not so
5

[Original note 226 in the Guide] Copy-related rights (such as the right of distribution, the right of rental or the right of public lending (where recognized)) cover acts by means of which copies are made available to the public; typically for deferred use, since the act of making available and the perception (studying, watching, listening to) of the signs, images and sounds in which a work is expressed or a sound recording (that is, the actual use) by the members of the public differ in time. Non-copy-related rights (such as the right of public performance, the right of broadcasting, the right of communication to the public by wire), on the other hand, cover acts through which works or objects of related rights are made available for direct That is not deferred use (perceiving, studying, watching, listening to) by the members of the public.

easy, and certainly not something which would only require a simple decision and then the rest would be arranged automatically. CT-8.6. First, it did not seem possible to apply the traditional concepts of distribution and communication to the public directly without some clarification. As far as distribution is concerned, in many countries, its concept closely relates to the transfer of property and/or possession of tangible copies. Thus, if the right of distribution was to be applied, it had to be accepted and clarified that distribution through reproduction through transmission that is, making available copies by making such copies, through transmission of electronic signals, in the receiving computers and/or in their terminals is also covered by the concept of distribution. Similar clarifications were needed in respect of the concept of communication to the public. It had to be accepted and clarified that this concept extends not only to the acts that are carried out by the communicators themselves (that is, to the acts as a result of which a work or object of related right is, in fact, made available to the public and the members of the public do not have to do more than, for example, switch on equipment necessary for its reception), but also to the acts which only consist of making the work accessible to the public, and in the case of which the members of the public still have to cause the system to make it actually available to them. Further clarification was needed in respect of the notion of the public, more precisely in respect of what is to be considered to be made available (accessible) to the public. It had to be made clear that on-demand transmissions were also covered. CT-8.7. Second, as far as the international norms were concerned, the said clarifications were not sufficient, since the Berne Convention does not provide for a right of distribution for all categories of works, but only for cinematographic works (see Articles 14(1)(i) and 14bis(1)), and, although the coverage of the right of communication to the public (see Articles 11(1)(ii), 11bis(1), 11ter(1)(ii), 14(1)(ii) and 14bis(1)) is broader, it still does not extend to all categories of works in all forms. In order that any of the above-mentioned solution might work, the gaps in the international norms had to be eliminated; the coverage of the rights involved had to be completed. CT-8.8. Third, and this seemed to be for a long while the most difficult problem, it had been found that it would be difficult for the various countries to select only one of the two basic candidate rights without allowing any alternative choice at the national level. CT-8.9. In view of these problems, a compromise solution was worked out which contained the following elements: (i) the act of interactive transmission should be described in a neutral way, free from specific legal characterization (for example, as making available a work to the public by wire or by wireless means, for access by members of the public); (ii) such a description should not be technology-specific and, at the same time, it should express the interactive nature of digital transmissions in the sense that it should go along with a clarification that a work or an object of related right is considered to be made available to the public also when the members of the public may access it at a time and at a place freely chosen by them; (iii) in respect of the legal characterization of the exclusive right that is, in respect of the actual choice of the right or rights to be applied sufficient freedom should be left to national legislation; and, (iv) the gaps in the Berne Convention in the coverage of the relevant rights the right of communication to the public and the right of distribution should be eliminated. This solution was referred to as the umbrella solution, and it was adopted by the diplomatic conference as a basis for the provisions concerning interactive transmissions.6 (Emphasis added.)
6

WIPO Guide, pp. 207-209.

As it is mentioned in the presentation of my relevant professional experience and as it is well known by the international copyright community it was me who worked out this solution in order to forge a compromise solution between the conflicting positions of certain key negotiating parties (and the various stakeholder groups with differing interests) and I gave the name umbrella solution to it. First, I presented this solution, at that time still in the form of a kind of improvisation (under the usual somewhat schizophrenic disclaimer used on such occasions the views expressed are those of the author and should not be regarded as the views of the Organization represented by him) at the Conference on Copyright in the Asia-Pacific Region Reprography and Digital Technology held in Sidney, Australia, on 17 and 18 January 1995. After having reviewed the various candidate rights considered at that time as possibly applicable for interactive digital transmissions (in addition to the right of reproduction about the applicability of which there were hardly any doubts), namely the right of distribution and the right of communication to the public and having pointed out for what reasons their direct and exclusive application would not be suitable options, I continued my presentation in this way:
What we have discussed so far has reflected how certain existing rights might be adapted and applied for the phenomena of digital delivery. It seems that, for the time being, many experts consider that such adaptation is the right approach. Probably also because they are of the view that there is a better chance to reach an agreement on certain new ways of interpretation and, as a maximum, slightly adapting existing norms on existing rights than on the creation of new norms on new rights. Such an approach, however, might require over-stretched new interpretations of existing concepts and rules which might not be desirable. The opposite alternative would be the adoption of new norms that would recognize the specific nature of on-demand digital transmission/delivery of works and other protected productions. This could take the form of the recognition of a new, specific exclusive right of authorization. The introduction of such a specific new right would not be, however, easy; not only because of the usual difficulties in reaching agreement at the international level on a new right, but also because the legal qualification of the various acts that may be involved in the case of a digital transmission/delivery may concern some established practices, and acquired rights along with the related fundamental interests of those who own or administer various existing rights that may or may not be recognized on the basis of such qualification. In this respect, national legislation and practice differ to a great extent from country to country, and this would make the adoption of new international norms on such a new right even more difficult. Between the two opposing alternatives that is, between basing the international regulation on the interpretation and, as a maximum, on slight modification, of existing norms on rights, on the one hand, and introducing a new on-demand transmission/delivery right, on the other a third, compromise alternative would also be possible. This could consist of an umbrella provision under which it would be an obligation to grant an exclusive right or exclusive rights to authorize either any use of works and other protected productions, with some possible reasonable exceptions, through on-demand digital 7

transmission/delivery, or the exclusive right to authorize certain acts described in as neutral way (that is, without involving any specific legal qualification) as possible carried out in the case of such transmission/delivery, but the legal qualification of the right or rights granted (whether it results in the combination and possible extension of existing rights, and/or in a new specific right) would be left to national legislation The continuation of the preparatory work at the national level in various countries, at the regional level (particularly in the European Community) and at the international level (particularly in the two WIPO committees) will give an answer to the question which of these alternatives has better chance to offer an appropriate solution and to obtain a sufficiently broad acceptance.7 (Emphasis added.)

As it can be seen, at that time, the idea of an umbrella solution was presented only in an embryonic the form suggesting that a neutral description of interactive digital transmissions (neutral from the viewpoint of the above-mentioned candidate existing rights was presented). The description itself was not outlined yet. However, when back in Geneva I reported about this idea to Arpad Bogsch, the then Director General of WIPO, he found it being worthwhile working out and gave me a go-ahead not to prepare a concrete proposal. When I was ready, he allowed me not only to speak about it as a WIPO suggestion at various meetings, but later, when it turned out that the members of the Stockholm Group8 of the negotiating parties (key industrialized countries trying to work out joint proposals) were unable to agree between each other on this issue, he also made it available to them as a possible basis for breaking the deadlock (and finally it truly served as such). The central element of the solution I had worked out was the technology- and legalcharacterization-neutral description mentioned under (ii) of paragraph CT-8.10 of the WIPO Guide to the WCT quoted above: making available to the public by wire or by wireless means of a work (or object of related rights) in a way that the members of the public may get access to it from a place and at a time individually chosen by them. The expression making available to the public was the key in the expression since it was suitable to avoid characterizing interactive digital uses exclusively as acts of distribution or exclusively as acts of communication to the public (in view of the recognition that in the case of such uses the borderline between copy-related acts and non-copy-related acts is blurred and both of those aspects are always present even if with differing significance). This expression was and is available in the international copyright norms in quite a ready-made manner; just it had to be identified and made use of. This is so since it may be found exactly in a legal-characterization-free manner (equally covering both copy-related and non-copy-related aspects of uses) which was needed for the umbrella solution in certain provisions of the Berne Convention; namely in Articles 7(2) and (3) on the term of protection of copyright in cinematographic works and anonymous and pseudonymous works, respectively (but, in another aspect, also Article 10(1)). In the case of cinematographic works, it is an option, while in the case of anonymous and pseudonymous works it is a basic rule to calculate the 50-year term of protection from the
7

Mihly Ficsor: Digital Technology and Copyright, in: Copyright in the Asia-Pacific Region Reprography and Digital Copying, Publication of the Australian Copyright Agency Limited, 1995, pp. 151-152. 8 The Group had been established specially to deal with the WIPO Digital Agenda and to present joint proposals. It had named in this way since it held its first consultations in Stockholm.

first lawful making available to the public. It is clear, and all authoritative commentaries agree on this, that the concept of making available to the public is broader than making available the works through distributing copies, it equally covers non-copy-related acts, such as public performance, broadcasting or other communication to the public.9 In this way, the already internationally recognized legal-characterization-free description of uses of works and objects of protection was available. What was only needed to adapt it for the purpose by adding a technology-neutral description of interactive digital making available as mentioned above. With the approval of Director General Bogsch, I presented the thus completed umbrella solution at various high-level meetings in 1995 and 1996 at which the key representatives of the most important negotiating parties were also present; inter alia, at the WIPO Worldwide Symposium on Copyright in the Global Information Infrastructure in organized in Mexico City from 22 to 24 May 1995,10 at the WIPO World Forum on the Protection of Intellectual Creations in the Information Society held in Naples from October 18 to 20, 1995,11 at International Conference on Copyright and Related Rights on the Threshold of the 21st Century organized by the European Commission in Florence from 2 to 4 June 1996.12 However, it took the form of proposals submitted by a delegation only in May 1996 at the third joint sessions of the two WIPO Committees working on what became in December 1996 the WCT and the WPPT. It was the result of an approximate consensus reached in the above-mentioned Stockholm Group, but the delegation of the European Communities submitted it (inter alia, because the last and most important condition was that an internal agreement be reached also among the then 15 Member States of the Communities). The proposals contained already practically the same language as the draft provisions in the Basic Proposals for the two Treaties and as the adopted Article 8 of the WCT and as Articles 10 and 14 of the WPPT:
Without prejudice to the provisions of Articles 11(1)(ii), 11bis (1)(i) and (ii), 14(1)(ii) and 14bis(1) of the Berne Convention, authors of literary and artistic works shall enjoy the exclusive right of authorizing any communication to the public of their works, including the making available to the public of their works by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access

See Claude Masuy: Guide to the Berne Convention, WIPO publication No. 615(E), 1978; p. 47 and WIPO Guide pp 48-49. 10 Mihly Ficsor: International Harmonization Copyright and Neighboring Rights, in WIPO Worldwide Symposium on Copyright in the Global Information Infrastructure, WIPO publication No. 746 (E/S), pp. 369379, in particular pp. 375-377. 10 Mihly Ficsor: International Harmonization of the Protection and Management of Copyright and Neighboring Rights, in WIPO World Forum on the Protection of Intellectual Property in the Information Society, WIPO publication No. 751(E), 1996, pp. 133-141, in particular, pp. 135-139. 11 Mihly Ficsor: International Harmonization of the Protection and Management of Copyright and Neighboring Rights, in WIPO World Forum on the Protection of Intellectual Property in the Information Society, WIPO publication No. 751(E), 1996, pp. 133-141, in particular, pp. 135-139. 12 Mihly Ficsor: International Harmonization of Copyright in Preparation for the Digital Age, in International Conference on Copyright and Related Rights on the Threshold of the 21st Century,, European Commission publication, 1966, pp. 47 62, in particular pp. 54-61.

these works from a place and at a time individually chosen by them.13 (This has become Article 8 of the Berne Convention; the non-substantial changes in contrast with the original proposed language are highlighted.) Performers shall enjoy the exclusive right of authorizing the making available to the public of their fixed performances, by wire or wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them.14 (This has become Article 10 of the WPPT.) Producers of phonograms shall enjoy the exclusive right of authorizing the making available to the public of their phonograms, by wire or wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them.15 (This has become Article 10 of the WPPT.)

As it can be seen, the umbrella solution was adopted in different ways, and the right of making available to the public was granted in different contexts in the WCT and the WPPT. This is reflected in the comments to the relevant provisions in the WIPO Guides to the WCT and to the WPPT, respectively, in the following way: Comments to Article 8 of the WCT:
CT-8.10. In Article 8 of the WCT, the umbrella solution is applied in a specific way. Since the countries which preferred the right of communication to the public as a general option seemed to be more numerous, the Treaty, first, extends the applicability of the right of communication to the public to all categories of works, and then clarifies that that right also covers transmissions in interactive systems described in a legal-characterization-free manner: including the making available to the public of[.]works in such a way that members of the public may access [them] from a place and at a time individually chosen by them. As a second step, however, when this provision was discussed in Main Committee I, it was stated and no delegation opposed the statement that Contracting Parties are free to implement the obligation to grant exclusive right to authorize such making available to the public also through the application of a right other than the right of communication to the public or through the combination of different rights as long as the acts of such making available are fully covered by an exclusive right (with appropriate exceptions). By the other right, of course, first of all, the right of distribution was meant, but a general right of making available to the public might also be such an other right.16 (Emphasis added.)

The comments to Article 10 in the WIPO Guide to the WPPT read as follows:
PPT-10.1. In the comments to Article 8 of the WCT, above, there is a description about the discussions on the candidate rights for interactive transmissions (the right of distribution and the right of communication to the public with their sub-rights) and the emergence of the umbrella solution. That description is also relevant here. PPT-10.2. As discussed in the above-mentioned analysis of Article 8 of the WCT, the basic element of the umbrella solution is a neutral, legal-characterization-free description of
13 14

WIPO document BPC/CE/VII/1-INR/CE/VI/1, p. 3. Ibid., p. 4. 15 Ibid. 16 WIPO Guide, p. 209.

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interactive transmissions (neutral in the sense that it does not refer either to distribution or to communication to the public of works and objects of related rights). The diplomatic conference, in respect of copyright, applied this solution in a special way: first, it included the neutral description of interactive transmissions in Article 8 of the WCT on a general communication to the public right, but then accepted the clarification that the obligation to provide for an exclusive right for such interactive transmissions may also be fulfilled by granting a right other than the right of communication to the public (with the right of distribution in mind as such a possible other right) or a combination of rights. In contrast with this, Article 10 as, in respect of the rights of producers of phonograms, also Article 14 of the WPPT applies the umbrella solution in a fully-fledged manner incorporating the neutral description of interactive digital transmissions directly.17 (Emphasis added.) The Guide to the WPPT also clarifies the difference between the right of (interactive) making available to the public and the right of (non-interactive) communication to the public: PPT-10.4 Article 15 of the WPPT only provides for a right to remuneration for broadcasting and other traditional forms of communication to the public (including communication by wire). This is due to the fact that, in respect of phonograms and the performances fixed therein, the majority of countries was not ready to grant exclusive rights for such acts. Since, in the case of interactive transmissions, the recognition of an exclusive right was indispensable, the application of the same solution as in Article 8 of the WCT was impossible in the WPPT context. The two rights at the level of minimum obligations had to be separated in Article 10 and 14, on the one hand, and in Article 15, on the other.18 (Emphasis added.)

What is summed up in this way in the WIPO Guides to the WCT and to the WPPT in a couple pages as quoted above is described and discussed more in detail in my book published by Oxford University Press in no less than 109 pages in Chapter 4 entitled The Digital Agenda The Right or Rights Applicable for Interactive Transmissions: The Umbrella Solution.19 The chapter offers a full description of the preparatory work of the relevant provisions of the two Treaties the national and regional studies, the discussions and the presentations made at the WIPO forums dealing with the digital agenda, the negotiations in the two WIPO Committees working on the new norms etc. which confirms what is summed up in the WIPO Guides. It would be impossible to review in detail all subsequent steps of the preparatory work. It seems, however, justified to present, at least, what happened in the most decisive stage work; namely at the Diplomatic Conference. The Basic Proposal for what became the WCT contained practically the same provision (still numbered as Article 10) as what was finally adopted as Article 8 with the only difference that the phrase including the making available to the public of their works was still before the phrase by wire or wireless means:
Without prejudice to the provisions of Articles 11(1)(ii), 11bis (1)(i) and (ii), 14(1)(ii) and 14bis(1) of the Berne Convention, authors of literary and artistic works shall enjoy the exclusive right of authorizing any communication to the public of their works, including the
17 18

Ibid. pp. 247-248. Ibid., p. 248. 19 Ficsor, Oxford, pp.145-254. ,

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making available to the public of their works by wire or wireless means, including the making available to the public of their 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.20 (It is indicated by bold letter and underlining how the draft provisions was modified before finally adopted.)

From the viewpoint of the issues covered by this expert opinion, it is necessary to quote the notes added to the draft provisions in the Basic Proposal which presented the structure and objectives of the proposed article as follows:
10.9. The provisions of Article 10 consist of two parts. The first part extends the exclusive right of communication to the public to all categories of works, including any communication by wire or wireless means. It leaves the provisions of Articles 11(1)(ii), 11bis (1)(i) and (ii), 14(1)(ii) and 14bis(1)applicable as they are in the Berne Convention. 10.10. The second part of Article 10 explicitly states that communication to the public includes the making available to the public of works, by wire or wireless means, in such a way that members of the public may access these works from a place and at a time individually chosen by them. The relevant act is the making available of the work by providing access to it. What counts is the initial act of making the work available, not the mere provision of server space, communication connections, or facilities for the carriage and routing of signals. It is irrelevant whether copies are available for the user or whether the work is simply made perceptible to, and thus usable by, the user. (Emphasis added.) 10.11. One of the main objectives of the second part of Article 10 is to make it clear that interactive on-demand acts of communication are within the scope of the provision. This is done by confirming that the relevant acts of communication include cases where members of the public may have access to the works from different places and at different times. The element of individual choice implies the interactive nature of the access.21

The text emphasized above made it clear that the way the right of making available to the public is provided as a subcategory of a broader right of communication to the public covers both transmissions through which a work is only made perceptible (that is, it is not downloaded it is only streamed) and transmissions through which copies are made available (that is, downloaded). It goes without saying that the coverage of the making available right provided in the WPPT for performers and producers of phonograms separately from, and in parallel with, the right of (non-interactive communication to the public) with the same language was necessarily the same extending both to streaming-type services and to transmissions resulting in downloading. The draft provisions on this right of performers and producers of phonograms were the same in the Basic Proposal as the finally adopted provisions in Articles 10 and 14 of the WPPT. No proposal was made at the Diplomatic Conference which would have questioned that there was a consensus about the double nature of the acts of (interactive) making available to the public; namely that irrespective whether the exclusive right of
20

See Records of the Diplomatic Conference on Certain Copyright and Neighboring Rights Issues Geneva 1996, WIPO publication 348(E), 1999, (hereinafter: Records 1996) p. 205. 21 Ibid., p. 204.

12

authorization is granted as a subcategory of a broadly construed communication right or as a separate right they include both acts where the transmissions result in perception by the public and acts where they result in downloading. The same applies as regards the debates on this right in Main Committee I of the Diplomatic Conference. The issue of the double nature of the making available right was touched upon only in one aspect; namely in the following statement made by the US Delegation:
[H]e expressed support for Article 10 of [the draft WCT] [in the final text, Article 8] and Articles 11 and 18 of [the draft WPPT] [in the final text, Articles 10 and 14] concerning the rights of communication to the public and making available to the public, which were key to the ability of owners of rights to protect themselves in the digital environment. He stressed the understandingwhich had never been questioned during the preparatory work and would certainly not be questioned by any Delegation participating in the Diplomatic Conferencethat those rights might be implemented in national legislation through application of any particular exclusive right, also other than the right of communication to the public or the right of making available to the public, or combination of exclusive rights, as long as the acts described in those Articles were covered by such rights.22

No other delegation made any comment on this statement (which did not come as a surprise since, in the informal consultations where agreement was reached on the draft provisions included in the Basic Proposals of what became the WCT and the WPPT it was also agreed upon that the US delegation would make such a statement which would be accepted without any opposition). The fact that making accessible of works and objects of related rights through transmissions for downloading (necessarily not through making available physical, tangible copies) is covered, under the Treaties, normally by the right of making available to the public (as a specific category of the broadly construed right of communication to the public) rather than by a separate right of distribution is also confirmed by the agreed statement added to the provisions on the right of distribution and the right of rental (in the case of the WCT provided in Articles 6 and 7) stating as follows: As used in these Article, the expression copies and original or copies, being subject to the right of distribution and the right of rental under the said Articles, refer exclusively to fixed copies that can be put into circulation as tangible objects. (Emphasis added.) Thus, the answer to Question 1 may be summed up in this way: The intention which is duly reflected in the text of the relevant provisions of the two Treaties and which is also confirmed by their preparatory work was to provide for an exclusive right in order to control the decisive act of uploading and making accessible for interactive use of protected works and objects of related rights on the Internet irrespective of the nature/purpose of the transmissions taking place in the course of such use. The relevant provisions of the WCT and the WPPT were adopted by the 1996 Diplomatic Conference on the basis of a unanimous understanding that
22

Ibid., p. 675.

13

the making available right is applicable both where the resulting interactive use takes the form of transmissions only allowing perception of and where they may result in downloading of the works (performances and/or phonograms) thus made available. Question 2: What influence, if any, is the nature/purpose of subsequent transmission (streaming or downloading) supposed to have on the completion of the act of making available covered by this right? The expression making available to the public (emphasis added) cannot be interpreted in any way other than that, as soon as a work or object of related rights is uploaded on the Internet and thus it becomes available for the members of the public by accessing it from a place and a time individually chosen by them, the act of making available to the public has been completed. Since the text of the treaty provisions is clear in this sense, there is no need for separate confirmation by the preparatory work. Nevertheless, the preparatory work does confirm this meaning of making available to the public. The documents of the 1996 Diplomatic Conference make it crystal clear that there was consensus about this among the delegations. When the European Community proposed the text which with minor wording differences was the same as the provision of Article 8 of the WCT, it clarified this already:
[U]nder the proposal, for the completion of the act of communication to the public, it would not be required that an actual transmission takes place; for this, the mere making available of works to the public (for example, the uploading a work to a bulletin board) for subsequent transmission would be sufficient.23 (Emphasis added.)

As quoted above, the notes added to the Basic Proposal of what became Article 8 of the WCT stated this clearly too: The relevant act is the making available of the work by providing access to it. What counts is the initial act of making the work available.24 (Emphasis added.) Thus, the answer to Question 2 is this: The act of making available to the public is completed as soon as the work or the object of related rights is made available by uploading it for interactive access irrespective of what kind of interactive use (streaming or downloading) is made possible, , and it exists whether or not the work or object of related rights is actually transmitted at all.

23 24

WIPO document BPC/CE/VII/4-INR/CE/VI/4, p. 4. Records 1996, p. 204.

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Question 3: How has the making available right been implemented in other countries? As discussed above, the provisions on right of making available to the public have been included in the WCT and the WPPT only with some minor wording changes as proposed by the European Communities. Thus, it was quite normal that, when the two Treaties were implemented in the Communities (which became law of the present European Union too) by the Information Society (Copyright) Directive,25 the same provisions were adopted as in Article 8 of the WCT and Articles 10 and 14 of the WPPT (however, the right of making available to the public has been extended also to other related rights provided in the acquis communautaire). Article 3 of the Directive provides as follows:
1. Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them. 2. Member States shall provide for the exclusive right to authorise or prohibit the making available to the public, by wire or wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them: (a) for performers, of fixations of their performances; (b) for phonogram producers, of their phonograms; I for the producers of the first fixations of films, of the original and copies of their films; (d) for broadcasting organisations, of fixations of their broadcasts, whether these broadcasts are transmitted by wire or over the air, including by cable or satellite.

Since the text is the same as what was proposed by the then European Communities and what has been adopted as Article 8 of the WCT and Articles 10 and 14 of the WPPT, it is normal that the same considerations apply for its interpretation in the present 27 Member States of the European Union. That is, the act of making available to the public is completed as soon as the work or object of related rights is uploaded in a way that it becomes accessible to the members of the public from a place and at a time individually chosen by them irrespective of whether the interactive use thus made possible allows only perception and/or downloading copies. Recital (25) of the Directive confirms this by pointing out that [i]t should be made clear that all rightholders recognised by this Directive should have an exclusive right to make available to the public copyright works or any other subject-matter by way of interactive on-demand transmissions. Not only certain interactive transmissions are covered by this right but any interactive transmissions for which the works and objects of related rights are made accessible; including those transmissions which may result in downloading of copies. That the latter kind of transmissions are also covered by the making available category of the broadly construed communication right provided in the Directive (in accordance with the
25

Directive 2001/29/EC of the European Parliament and the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society.

15

WIPO Treaties) similarly to the case of the two Treaties, as discussed above is also confirmed by the reduction of the concept and right of distribution to the making available of physical (tangible) copies. Article 4(1) of the Directive provides as follows:
Member States shall provide for authors, in respect of the original of their works or of copies thereof, the exclusive right to authorise or prohibit any form of distribution to the public by sale or otherwise.

In the Directive, the role of the above-quoted agreed statement added to Article 6 of the WCT clarifying that only the distribution of tangible copies are covered by the right of distribution is fulfilled by a clear statement in one of the recitals; namely by Recital (28) which make it clear that [c]opyright protection under this Directive includes the exclusive right to control distribution of the work incorporated in a tangible article (emphasis added). It follows from this, a contario, that interactive transmissions which do not involve the making available of tangible copies are not artificially carved out from the overall concept of (interactive) making available to the public; those acts of making available as a result of which the interactive transmissions may result in downloading are also covered and as regards the perform the act of making available is completed as soon as the work or object of related rights is uploaded and, thus, made accessible for interactive use over the Internet. The national laws of the 27 Member States correspond to these concepts and rights. This is the case also where exceptionally see the case of France for the implementation of the right of making available to the public, the national law has not been modified, but rather an existing right (in France, the broadly interpreted representation right (droit de reprsentation)) was considered suitable to also absorb the broadly construed right of communication to the public including also the right of (interactive) making available of works the way discussed above (while the right of distribution as provided in the WCT, the WPPT and the Directive was left to the broadly interpreted reproduction rights). The von Colson principle is also a guarantee that, even if some more general concepts may be used in certain national laws (in particular in France), the legal situation correspond to what is provided, and the way it is provided, in the Directive. This principle has been established by the Court of Justice of the EU in the following way:
Although the third paragraph of Article 189 of the Treaty leaves Member States free to choose the ways and means of ensuring that the directive is implemented, that freedom does not affect the obligation, imposed on all the member states to which the directive is addressed, to adopt, within the framework of their national legal systems, all the measures necessary to ensure that the directive is fully effective, in accordance with the objective which it pursues. The Member States obligation arising from a directive to achieve the result envisaged by the directive and their duty under Article 5 of the Treaty to take all appropriate measures, whether general or particular, to ensure the fulfilment of that obligation, is binding on all the 16

authorities of Member States including, for matters within their jurisdiction, the courts. It follows that, in applying national law and in particular the provisions of a national law specifically introduced in order to implement a directive, the national court is required to interpret its national law in the light of the wording and the purpose of the directive in order to achieve the result referred to in the third paragraph of Article 189.26(Emphasis added.)

The application of the making available right in the EU Member States has taken place in accordance with the two WIPO Treaties and the Directive. This is presented below, by reference to the three biggest and most influential Member States (France, Germany and the United Kingdom) and to my own country, Hungary. France, as mentioned above, has chosen a minimalist way of implementation of the international and EU provisions on the right of making available to the public leaving it to an (already) broad interpretation of the representation right. However, as also pointed out, this means that, in this way, the right of making available to the public is applicable in France the way it is provided in the Directive (and the two WIPO Treaties).27 This has not been questioned in the legal practice which is also reflected in the licensing mechanism and distribution rules applied by SACEM and DRM the collecting societies managing the right of making available to the public as described below. In Germany, a clarification has been included in Article 19a of the Copyright Law according to which the right to make available to the public is the right of making a copyright work accessible to the public, by wire or by wireless means, in a way that members of the public may access the work from a place and at a time individually chosen by them. (Emphasis added.) In accordance with the concept of making available to the public under the WIPO Treaties and the EUs Information Society (Copyright) Treaty, the act of making available is completed as soon as a work or object of related rights is uploaded on a website and thus becomes accessible for any kind of interactive uses. This was confirmed, for example, in a particularly clear manner, in a 2011 decision by a Munich court.28 It was a special feature of the case that the plaintiff launched the lawsuit after that the defendant had paid already damages by having uploaded plaintiffs maps on the Internet without authorization and that had deleted a link to it on its website (homepage). Nevertheless, the maps remained on the defendants server and thus it was still accessible by the members of the public for interactive transmissions. In the lawsuit, the plaintiff claimed that by offering such unauthorized access in itself is an infringement of the right of
26

Judgment of the Court of 10 April 1984. - Sabine von Colson and Elisabeth Kamann v Land NordrheinWestfalen. - Reference for a preliminary ruling: Arbeitsgericht Hamm - Germany. - Equal treatment for men and women - Access to employment. - Case 14/83. 27 See Pascal Kamina: France, in Brigitte Lindner Ted Shapiro (ed.): Copyright in the Information Society, Edwards Elgar, 2011. p. 2000. 28 Ruling of AG Mnchen adopted on 31 March 3011; case 161 C 15642/09. See the German-language press release published by the court summing up the essence of the ruling at http://www.justiz.bayern.de/gericht/ag/presse/archive/2011/03024/index.php.

17

making available to the public. The court agreed with the plaintiffs position and found in his favor.29 In the United Kingdom, similarly to the case of Germany, the copyright law was amended to include language corresponding to the relevant provisions of the WIPO Treaties and the Information Society (Copyright) Directive. This may be found in Section 20 of the amended Copyright, Designs and Patents Act 1988 in this way:
(1) The communication to the public of the work is an act restricted by the copyright in (a)a literary, dramatic, musical or artistic work, (b)a sound recording or film, or Ia broadcast. (2)References in this Part to communication to the public are to communication to the public by electronic transmission, and in relation to a work include (a)the broadcasting of the work; (b)the making available to the public of the work by electronic transmission in such a way that members of the public may access it from a place and at a time individually chosen by them. (Emphasis added.)

This corresponds to the concept and right of making available to the public under the WIPO Treaties and the EU Information Society (Copyright) Directive. The UK courts apply these provisions appropriately also in cases where works are made available for downloading. Examples for this are the Newsbin cases which were followed by the international copyright community with great attention. In Fox v. Newzbin,30 the High Court described the infringing activities in this way:
Access to Newzbin is restricted to members, and the defendant accepts applications for membership only from users who have an invitation from a current member. The defendant offers two levels of membership: basic membership for which there is no fee, and premium membership for those users who agree to pay a fee of 0.30 per week, subject to discount at different times of the year. Only premium members are given the ability to download the contents of files sourced using Newzbin. Basic members are merely provided with what was described in evidence as a sample or taster of what is available to premium members. There is no doubt that the defendant has developed a very substantial business. It has a sophisticated and substantial infrastructure and in the region of 700,000 members, though not all premium. Its accounts reveal that for the year ended 31 December 2009, it had a turnover in excess of 1million, a profit in excess of 360,000 and paid dividends on ordinary shares of 415,000.
29

In another case (MyVideo Broadband S.R.L. v. CELAS GmbH), the Munich court (in decision No. 7 O 4139/08 (25 June 2009)) ruled that, under German law, it is not feasible legally to apply mechanical right for online interactive uses by neglecting the making available right. This ruling is only mentioned but it is not analyzed in detail due to its still controversial nature. For example a recent EU document refers to it as a source of doubts endangering online trans-border licensing. See Commission Staff Working Document -Impact Assessment; No SWD/2012/204. final of 7 July 2012 (Accompanying the document to the Proposal for a Directive of the European Parliament and of the Council on collective management of copyright and related rights and multiterritorial licensing of rights in musical works for online uses in the internal market), p. 26, note 121. 30 Twentieth Century Fox Film Corporation and Others v. Newzbin Ltd, [2010] EWHC 608(Ch)

18

This Court referred to the above-quoted Section 20 of the Copyright, Designs and Patents Act and adopted the following ruling: The defendant is liable to the claimants for infringement of their copyrights because it has authorized the copying of the claimants films; has procured and engaged with its premium members in a common design to copy the claimants films; and has communicated the claimants films to the public. In the context of the ruling it was clear that the Court found that the acts of making accessible films to the public for interactive transmissions and as a result for downloading of films qualified as making available to the public as a subcategory of the broad right of communication to the public as provided in Section 20(b) of the Act. In Newzbin 2 the issue was whether or not British Telecom as online service (access) provider might be obligated by injunction to block access to Newzbin2 which had been transferred off shore beyond the applicability of UK and EU law. The High Court gave an affirmative answer to this question. However, what is relevant from the viewpoint of the issues addressed in this expert opinion is that the Court confirmed that Newzbins illegal act qualified as unauthorized making available to the public under Section 20 of the Act:
In the present case Kitchin Js judgment in 20C Fox v Newzbin establishes that the operators of the Newzbin 2 website infringe the Studios copyrights in three ways. First, they authorize the users infringements. Secondly, they are jointly liable for the users infringements. Thirdly, they infringe by making available. The first two ways are different forms of accessory liability for acts committed by the users. Once it is concluded, as I have, that the users are using BTs service to infringe copyright, then it follows that the operators are too. As for the third way, this consists of the making available to the public of the work by electronic transmission in such a way that members of the public may access it from a place and a time individually chosen by them. The operators make the works available in such a way that users can access them over BTs network (among others). In my judgment that is sufficient to constitute use of BTs service to infringe.31

The Newzbin 2 ruling was adopted by Justice Arnold, and, of course, he adopted the same ruling later in a similar case where the obligation to block access to Pirate Bay, the wellknown website serving for unauthorized uploading and downloading of works and objects of related rights was at issue. His ruling stated about the illegal activity of the operators of that rough website again as follows: I consider that they make the recordings available by electronic transmission in such a way that members of the public may access the recordings from a place and at a time individually chosen by them within section 20(2)(b)32 (emphasis added). As presented below, the joint licensing practice and distribution rules of PRS and MCPS, the UK performing rights and mechanical rights societies also correspond to the fact that the interactive making accessible of works and objects of related rights for downloading is also covered by the right of making available to the public as a subcategory of the broadly construed right of communication to the public.

31

Twentieth Century Fox Film Corporation and Others v. British Telecommunication PLC, [2011] EWHC 1981 (Ch). 32 Dramatico Entertainment Limited and Others v. Sky Broadcasting Limited and Others, [2012] EWHC 208 (Ch).

19

After the three key Member States of the EU, I also refer to the situation in my country Hungary as an example of smaller Member States. The situation is quite simple and clear; the (amended) Copyright Act provides for the right of making available to the public with in same language as the WIPO Treaties and the EU Information Society (Copyright) Directive in Article 26(8) as a subcategory of the broadly construed right of communication to the public, while in Articles 73(1), 78(1), 80(1) and 82(1) as a separate exclusive right for related rights (in performances, phonograms, broadcasts and first fixations of films, respectively. As mentioned below, the licensing practice and distribution rules of ARTISJUS, the Hungarian authors society is similar as those of the French, German and UK collecting societies. It is well known that the implementation of the right of making available to the public has been quite special in the United States. The court practice and the licensing system of the performing rights societies and the agency managing mechanical rights does not seem to have been settled yet.33 This is due to the fact that, in contrast with the EU Directive and the national laws of other Parties to the WCT and the WPPT (including Australia, Japan, China and Russia the relevant legal provisions of which are mentioned below as further examples and now also Canada), the US Copyright Act does not use the expression making available to the public in any of the ways mentioned in respect of the other Contracting Parties; the issue is left to the application of the right of distribution and the right of communication to the public the same way as existing before the ratification and the implementation of the two Treaties by the US. Since, in this case, the issues of interpretation are different from those which may emerge in the overwhelming majority of the Contracting Parties and in such a country as Canada, where the concept of making available to the public has been introduced into national laws also in view of the said still evolving nature of the US practice the complex situation in that country is not dealt with in the expert opinion. In turn, it seem necessary to refer to the way the right of making available to the public has been implemented in such key markets as Australia, Japan, China and Russia. The Copyright Act of Australia recognizes the making available right in its Section 10(1), which contains the following definition of communicate in respect of the right of communication to the public:
communicate means make available online or electronically transmit (whether over a path, or a combination of paths, provided by a material substance or otherwise) a work or other subject-matter (emphasis added).

As mentioned below, the fact that this specific form of the broadly construed right of communication to the public is applicable also in cases where the works and objects of related rights are made accessible for interactive use through transmissions for downloading is also recognized by the joint licensing practice of APRA and AMCOS, the Australian performing rights and mechanical rights societies.
33

See Eric Eric J. Schwarz David Nimmer: United States in Melville B. NimmerPaul Edward Geller (ed.): International Copyright Law and Practice, LexisNexis, Release 24, October 2012, point 8[1][b][iv][C].

20

Japan seems to have considered it so important to reflect in its law that an act of making available to the public is completed as soon as a work or object of related rights that it uses the term making transmittable. Under Article 23(1) of the Copyright Act, authors enjoy the right of public transmission including the right of making transmittable while under Arts. 92bis, 96bis, 99bis and 100quater of the act performers, phonogram producers, broadcasting organizations and wire-broadcasting organizations enjoy the right of making transmittable. As mentioned below, the licensing practice and distribution rules of JASRAC, the Japanese authors society managing both performing rights and mechanical rights also take into account that the right of making available (transmittable) also applies where the interactive use made possible takes the form of transmissions resulting in downloading. Finally, it is worthwhile mentioning the examples of China and Russia which are similar as regards the special way of providing not only for the beneficiaries of related rights but also for authors and other copyright owners a separate making available right (separate both from the traditional non-interactive performing rights and from the traditional noninteractive copy-related rights, including the mechanical rights in music). Article 10 of the Copyright Law of China provides as follows:
Copyright includes the following personal rights and property rights [only the relevant rights are quoted]: (5) the right of reproduction, that is, the right to produce one or more copies of a work by printing, photocopying, lithographing, making a sound recording or video recording, duplicating a recording, or duplicating a photographic work, or by other means; (6) the right of distribution, that is, the right to provide the original copy or reproductions of a work to the public by selling or donating; (11) the right of broadcasting, that is, the right to broadcast a work or disseminate it to the public by any wireless means, to communicate the broadcast of a work to the public by wire or by rebroadcasting, and to publicly communicate the broadcast of a work by loudspeaker or any other analogous instrument transmitting signs, sounds or images; (12) the right of communication through information network, that is, the right to make a work available to the public by wire or by wireless means, so that people may have access to the work from a place and at a time individually chosen by them (emphasis added).

Article 1270 of Part IV of the Civil Code of the Russian Federation contains the following provisions concerning exclusive right(s) in works protected by copyright [only the relevant right are quoted]:
1. The exclusive right to use a work in accordance with Article 1229 of the present Code in any form and any manner not contrary to law (the exclusive right in the work), including by the methods indicated in Paragraph 2 of the present Article shall belong to the author of the work. The rightholder may dispose of the exclusive right in the work. 2. The use of a work, regardless of whether or not the corresponding actions are taken for the purpose of extracting profit or without such a purpose shall include, in particular: 1) reproduction of the work , i.e., the creation of one or more copies of a work or of part of it in any material form, including in the form of audio or video recording, creation in three 21

dimensions of one or more copies of a two-dimensional work and in two-dimensions of one or more copies of a three dimensional work. In this case the fixation of the work on an electronic carrier, including fixation in the memory of a computer shall also be considered reproduction, except for the case when such fixation is temporary and constitutes an inseparable and essential part of a technological process having the sole purpose of lawful use of the fixation or lawful communication of the work to the public; 2) distribution of a work by sale or other alienation of its original or of copies; 4) the import of the original or of copies of a work for the purpose of distribution; 5) renting out of the original or a copy of the work; 7) communication by wireless means, i.e., communication of a work to the public (including showing or performance) by radio or television (including by way of retransmission), with the exception of communication by wire. In this case, communication means any action by which the work becomes accessible for aural and/or visual perception regardless of its actual perception by the public. In case of communication of works by wireless means via satellite, communication by wireless means the receipt of signals from a ground station by the satellite and transmission of signals from the satellite by means of which the work may be communicated to the public regardless of its actual reception by the public. Communication of coded signals is communication by wireless means if the means of decoding are granted to an unlimited group of people by the broadcasting organization or with its consent; 8) communication by cable, i.e., communication of the work to the public by radio or television with the use of a cable, wire, optical fiber, or analogous means (including by way of retransmission). Communication of coded signals is communication by cable if the means of decoding are granted to an unlimited group of people by the cablecasting organization or with its consent; 11) communicating a work to the public in such a way that any person may obtain access to the work from any place and at any time of his own choosing (communication to the public).

These provisions of the Chinese and Russian laws make it also clear that the right of making available to the public is completed as soon as a work is made accessible for interactive use irrespective of the nature of the use (whether steaming or downloading). Thus the answer to Question 3 may be summed up in the following way: In the key markets, in general (in the overwhelming majority of countries), the right of making available to the public has been implemented adequately in accordance with the nature of the right reflected in the text of the relevant provisions of the WCT and the WPPT; that is, as an exclusive right to control the inclusion of works and objects of related rights by offering interactive access irrespective of the nature/purpose of the use (streaming and/or downloading) and irrespective of whether or not actual interactive transmissions take place. Question 4: How is the making available right in musical works licensed in other countries, and how the remuneration is distributed depending on the nature/purpose of the transmission (streaming or downloading)? As mentioned above, in the Contracting States which, in accordance with Article 8 of the WCT, provide for a right of making available to the public, the collecting societies both in those cases where the same society manages both performing (or representation) rights and mechanical rights and in the cases where two societies manage those rights, in principle, separately but they act together the licensing practices and the relevant
22

distribution rules of those societies corresponds to the inseparable nature of the right of making available in the sense that it is also applicable where the interactive use made possible by providing access to the musical works take the form of transmissions for downloading. In France, SACEM (the society managing representation rights) and SDRM (the mechanical rights society) license making available to the public in respect of both streaming and downloading. The remuneration collected on the basis of the jointly granted licenses is distributed as follows: (i) in the case of streaming (sites dcoute en ligne), 75% for representation rights and 25% for mechanical rights; and (ii) in the case of downloading (tlchargements de fichiers musicaux), 25% for representation rights; and 75% for mechanical rights.34 In Germany, GEMA manages and licenses making available to the public both in respect of streaming and in respect of downloading. Under the distribution rules of the society, the remuneration collected is distributed in this way: (i) in the case of streaming (zum bloen Anhren), 66, 67% for performing rights and 33,33% for mechanical rights; and (ii) in the case of downloading (zum Herunterladen), 33,33% for performing rights and 66, 67% for mechanical rights .35 In the United Kingdom, PRS (the society managing performing rights) and MCPS (the mechanical rights society) license making available to the public in respect of both streaming and downloading. The remuneration collected on the basis of the jointly granted license is distributed in this way: (i) in the case of streaming, 50% for performing rights and 50% for mechanical rights; and (ii) in the case of downloading, 25% for performing rights and 75% for mechanical rights.36 In Hungary, ARTISJUS manages and licenses making available to the public both in respect of streaming and in respect of downloading. Under the distribution rules of the society, the remuneration collected is distributed in this way: (i) in the case of streaming, 75% for performing rights and 25% for mechanical rights; and (ii) in the case of downloading, 25% for performing rights and 75% for mechanical rights .37 In Australia, APRA (the society managing performing rights) and AMCOS (the mechanical rights society) license making available to the public in respect of both streaming and downloading. For the time being, the remuneration collected on the basis of the jointly granted license is distributed in equal shares 50%-50% in the case both streaming and downloading.38

34

See Rgles de rpartition at www.sacem.fr/files/content/sites/fr/files/mediateque/createur/Regles_reprartition_2010_s.pdf., p. 41 35 See Werteilunsgplan at www.gema.de/filadmin/user_upload/Presse/Publicationed/Jahrbuch/Jahrbuch_aktuel/Werteilugsplan.pdf., p. 352. 36 PRS for Music PRS Distribution Policy Rules Feb. 2012. pdf., p. 58. 37 Felosztsi szablyzat at www.artisjus.hu/_eserfiles/file/egyesulet/szabalyzatok/felosztasi_szabalyzat_hatalyos.pdf., pp. 31-32. 38 Source: e-mail of 27 February 2013 from Richard Mallet, Head of Revenue, APRA/AMCOS.

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In Japan, JASRAC manages and licenses making available to the public both in respect of streaming and in respect of downloading. Under the distribution rules of the society, the remuneration collected is distributed in this way: (i) in the case of streaming, 85% for performing rights and 15% for mechanical rights; and (ii) in the case of downloading, 35% for performing rights and 65% for mechanical rights .39 Thus, the answer to Question 4 is this: The licensing of the making available right in musical works, in general, takes place by collecting societies managing performing (or representation) rights and mechanical rights. Where these rights are managed separately by performing rights and mechanical rights organizations, those organizations normally offer joint licenses. The nature/purpose of the interactive use (whether streaming or downloading) irrespective of whether the repertoire of same organization covers both rights or two organizations grant joint licenses is taken into account in the shares due to the owners of the respective rights; usually in a way that, in the case of streaming, a bigger share goes to performing rights, while in the case of downloading, a bigger share goes to mechanical rights (on the understanding that the making available right is applicable in all these cases). [End of expert opinion] Attachment: short biography

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Satoshi Watanabe (JASRAC): Licensing of Interactive Transmission (Online and Mobil) Services,ppt. presented at the Seminar on Collective Management Organizations, Taipei 8-9 September 2009, slide 7.

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SHORT BIOGRAPHY - Dr. Mihly Ficsor Dr. Ficsor, from 1966 to 1968, he was judge at the Central District Court of Budapest, and, from 1969 to 1975, he was Section Head at the Codification Department in the Hungarian Ministry of Justice. From 1975 to 1985 he worked Director General of the Hungarian Bureau for the Protection of Authors Rights and, in that capacity, he represented his country at the international organizations. In 1981 and 1982, he acted as the Chairman of three different important WIPO-UNESCO meetings: (i) the Working Group which adopted Model Provisions on Exceptions for the Visual and Auditory Handicapped; (ii) the Working Group which adopted Guidelines on Translation and Reproduction Compulsory Licenses for Developing Countries; and (iii) the Committee of Governmental Experts which adopted Model Provisions on the Protection of Expressions of Folklore. Between 1985 and 1999, Dr. Ficsor worked, first, as Director and, then, from 1992 as Assistant Director General of the World Intellectual Property Organization (WIPO) in charge of copyright and related rights. He was responsible for a great number of important projects. Inter alia, he is recognized as having played decisive role in the preparation, negotiation and adoption of the so-called Internet treaties: the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT). At the World Trade Organization (WTO), Dr. Ficsor is a member of the roster of intellectual property experts for dispute settlement panels. He has been a member of a panel in one of the most important intellectual property disputes (between the European Union and Canada), and, in another dispute (between the United States and Japan), the parties reached agreement in the consultation phase on the basis his expert opinion. Dr. Ficsor is a Member of the Board and Honorary President of the Hungarian Copyright Experts Council (a 200 member advisory and arbitration body appointed by the Minister of Justice and linked to the National IP Office) if which he, between 2000 and 2011, was President , Honorary Chairman of the Hungarian Copyright Forum Association, member of the Executive Committee of the International Intellectual Property Association (ALAI), and Chairman of the Central and Eastern European Copyright Alliance (CEECA) with permanent observer status at WIPO. In 2003 and 2004, Dr. Ficsor was the Chairman of the UNESCO Working Group preparing the draft UNESCO Convention on the Protection and Promotion of Diversity of Cultural Expressions, which later was adopted with several amendments in 2005. Dr. Ficsor holds a doctors degree in law and political sciences from the Law Faculty of the Etvs Lrnd University of Budapest. He has written numerous articles and books on various copyright issues, particularly on the impact of new technologies (especially digital technology and the Internet) on copyright and on collective management of copyright and related rights, and participates in a number of seminars, symposiums, workshops as a speaker throughout the world. His best-known books: The Law of Copyright and the Internet The 1996 WIPO Treaties, their Interpretation and Implementation, Oxford University Press, 2002. Collective Management of Copyright and Related Rights, WIPO publication, 2003. Guide to the Copyright and Related Rights Treaties Administered by WIPO and Glossary of Copyright and Related Rights Terms, WIPO publication, 2004.

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