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
    Andrew Foster (profile), 19 Nov 2010 @ 9:01am

    Okay.

    The UK law on this is in the Copyright, Designs and Patents Act 1988 (CDPA). It's available here: http://www.legislation.gov.uk/ukpga/1988/48/contents.

    In the UK, making available to the public for download IS an infringement of copyright. It's not debated: section 20 CDPA.

    [I]t should be obvious that a copyright infringement ONLY takes place where and when the copy is actually manufactured.

    In the light of the above, that's not right. There are also many, many other copyright infringements that don't involve actual copying: public performance of a work (s19), importing an infringing copy (s22) or unauthorised rental of legitimate copies (s18A). There's more if you want to read the CDPA.

    Simply instructing a server to make copies on demand doesn't actually infringe copyright (unless you want to include aiding, abetting, inducement, conspiracy, etc).

    The UK largely does. See CDPA sections 22-26 (notably on providing the means to make an infringing copy, permitting the use of premises for an infringing performance and more).

    With regard to all the points about copies necessary for the function of the internet, UK law provides that none of these will be copyright infringement: s28A.

    And it's not "football", it's soccer.

    Quiet. YOU PEOPLE KNOW NOTHING.

    ;)

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