UK Court Says Making Available Online Only Happens Where The Server Is Located

from the that-may-make-things-interesting dept

There have been a series of court battles in the US over the question of whether or not simply "making available" constituted copyright infringement. That is, copyright (in the US) covers a series of specific exclusive rights held by the copyright holder:
(1) to reproduce the copyrighted work in copies or phonorecords;

(2) to prepare derivative works based upon the copyrighted work;

(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;

(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and

(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
So, here's the question that some people asked: if you only make the work available, but there is no evidence that a copy was made, then was the copyright infringed? After all, no reproduction was made. No copy was distributed. So, where's the infringement? Supporters of saying that merely "making available" is infringing claimed that it was the equivalent of distributing because you had effectively offered it up for distribution or reproduction.

It appears that over in the UK, they have been having a similar battle. Thomas O'Toole points us to a very interesting ruling from the UK High Court saying that "making available" can be copyright infringement... but only in the jurisdiction where the server resides. In this case, it involved database rights over UK football scores and other data. A German company, aggregating football data, copied some of the data from a UK firm and offered it via their servers in Germany and Austria. The original creator of the database (in the UK) claimed this was infringing. The judge felt that, if there was infringement, it happened in Germany and not the UK when it came to the "making available" right:
I have come to the conclusion that the better view is that the act of making available to the public by online transmission is committed and committed only where the transmission takes place. It is true that the placing of data on a server in one state can make the data available to the public of another state but that does not mean that the party who has made the data available has committed the act of making available by transmission in the State of reception. I consider that the better construction of the provisions is that the act only occurs in the state of transmission.
That certainly could have a major impact on other sorts of copyright lawsuits in the UK. If the content is hosted offshore, then it would suggest that no "making available" claims could be made in the UK.

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  1. icon
    Richard (profile), 19 Nov 2010 @ 5:29am

    Re:

    No I think it makes some sense - on the basis that the infringement can only occur in one place - and that is identified as the server location.
    This serves to clarify jurisdiction disputes - it doen't make any particular party liable.

    Incidentally it totally blows the National Portrait Gallery's case agains Wikipedia.

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