Copyright Office Seeks Further Public Comment on "Making Available" and "Communication to the Public" Rights Post-Aereo | Practical Law

Copyright Office Seeks Further Public Comment on "Making Available" and "Communication to the Public" Rights Post-Aereo | Practical Law

The US Copyright Office is seeking additional comments on the recognition and protection of the "making available" and "communication to the public" rights under US copyright law, including comments concerning the US Supreme Court's American Broadcasting Companies, Inc. v. Aereo, Inc. decision.

Copyright Office Seeks Further Public Comment on "Making Available" and "Communication to the Public" Rights Post-Aereo

by Practical Law Intellectual Property & Technology
Published on 16 Jul 2014 • USA (National/Federal)
The US Copyright Office is seeking additional comments on the recognition and protection of the "making available" and "communication to the public" rights under US copyright law, including comments concerning the US Supreme Court's American Broadcasting Companies, Inc. v. Aereo, Inc. decision.
On July 11, 2014, the US Copyright Office issued a request for additional comments concerning its ongoing study of the recognition and protection of the "making available" and "communication to the public" rights under US copyright law to allow parties to address issues raised in previously-submitted written comments and recent legal developments, including the US Supreme Court's June 25, 2014 decision in American Broadcasting Companies, Inc. v. Aereo, Inc. (79 Fed. Reg. 41309-01 (July 11, 2014)).
After the Copyright Office published its initial notice of inquiry on February 25, 2014 for this study (see Legal Update, Copyright Office Seeks Public Comment on "Making Available" and "Communication to the Public" Rights), it received 27 written comments and conducted a public roundtable on May 5, 2014. Key issues discussed at the roundtable and in comments included:
  • Whether current US law provides rights that are equivalent to the making available and communication to the public rights required by the WIPO internet treaties.
  • Whether and how particular provisions of Title 17 may apply to various activities in the digital context.
  • Whether a digital file is a "material object" for purposes of the statutory definitions of "copies" and "phonorecords."
  • The relevance of legislative history to the construction of the distribution right.
  • The role of secondary liability theories in assessing US implementation of the relevant treaty provisions.
  • The use of evidence provided by a copyright owner's investigator in digital filesharing cases.
Details concerning the original notice, public comments, agenda for the roundtable and the transcript of the roundtable proceedings are available on the Copyright Office website.
As part of its request for additional comments, the Copyright Office also seeks views regarding the Supreme Court's decision Aereo, highlighting the following specific questions:
  • To what extent does the Supreme Court’s construction of the right of public performance in Aereo affect the scope of the US implementation of the "making available" and "communication to the public" rights?
  • How should courts consider the requirement of volitional conduct when assessing direct liability in the context of interactive transmissions of content over the internet?
  • To what extent do, or should, secondary theories of copyright liability affect the scope of the US implementation of the "making available" and "communication to the public" rights?
  • How does, or should, the language on ‘‘material objects’’ in the Section 101 definitions of ‘‘copy’’ and ‘‘phonorecord’’ interact with the exclusive right of distribution, or making available and communication to the public, in the online environment?
  • What evidentiary showing should be required to prove a copyright infringement claim against an individual user or third-party service engaged in unauthorized file sharing?
  • Any additional comments or suggestions regarding recommendations or proposals the Copyright Office might consider.
Comments are due on August 14, 2014 and should be submitted electronically through the Copyright Office's website.
For more on the Supreme Court's Aereo decision, see Legal Update, Supreme Court Holds Aereo Transmissions Are Public Performances.
Update: On August 1, 2014, the Copyright Office extended the comment period to September 15, 2014 (79 FR 44871-02).