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.

Reader Comments

Subscribe: RSS

View by: Time | Thread


  1. icon
    Crosbie Fitch (profile), 20 Nov 2010 @ 5:10am

    Re: Re: Re: Okay.

    Andrew, the context of my discussion is clearly concerned what the law should be regarding 'making available' and I explain my reasoning based on the salient 'principles' of copyright. If I refer to specific legislation in a specific jurisdiction it will be obvious.

    You've clearly noticed that this site is not primarily for lawyers to discuss what the law is, but for anyone to discuss the impact of legislation on society and to what extent it is about exploiting people vs protecting them.

    Adding 'making available' to copyright legislation starts to distort copyright from concerning distribution/communication and toward controlling access. Should books be prohibited from libraries without payment of a license fee because this makes them available to the public?

    Copyright started being about copies, then included performance and communication, and now includes access/availability and rent/resale. It was supposedly only to be concerned with fixed expression, but now covers the ideas too. It was supposed to be purely a civil matter, but is steadily becoming a criminal one. It used to require evidence, but now guilt can be presumed if the accused is given the opportunity to pay for an appeal tribunal. It used to cover just a single actor in terms of infringement, but now covers intermediaries, facilitators, inducers, etc. Where does it stop?

    Are you only concerned with what copyright law is in any particular jurisdiction, or are you also concerned with the ethics of the law too?

    Regarding imprisonment of folk who iPhone the cinema screen see my comments to this article: "Whoa Shelly Roche…Stealing Does Not Equal Free Speech".

Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here
Get Techdirt’s Daily Email
Use markdown for basic formatting. HTML is no longer supported.
  Save me a cookie
Follow Techdirt
Techdirt Gear
Show Now: Takedown
Advertisement
Report this ad  |  Hide Techdirt ads
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Advertisement
Report this ad  |  Hide Techdirt ads
Recent Stories

Close

Email This

This feature is only available to registered users. Register or sign in to use it.