Digital Media Licensing Association Submits Comments to Copyright Office On Making Available Right

September 28, 2014


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 by Nancy Wolff, PACA Counsel

On September 15, 2014, Nancy Wolf, on behalf of the Digital Media Licensing Association, Inc., together with various visual arts associations (The National Press Photographers Association (“NPPA”), American Society of Media Photographers, (“ASMP”), Graphic Artists Guild (“GAG”)) who signed on to the letter, responded to the Copyright Office’s Notice of Inquiry concerning its study on the right of making available.

Congress asked the Copyright Office to study whether the United States meets its obligations under various copyright treaties that require members to provide authors certain exclusive rights, including the exclusive right to make a work available to the public and to communicate to the public, including on the internet. For those of you that are familiar with the exclusive rights a copyright owner has under US law, you will say,” but I never heard of that right!”. You would be correct. The Copyright Act under 17 U.S.C. § 106 provides an author with various exclusive rights such as the  right to reproduce a work, to distribute a work publicly, to display a work publicly, to transmit or perform a work publicly and to make or authorize derivative works. But the Copyright Act has no express making a work available or communicating a work to the public right.

What the Copyright Office and others have maintained is that the making available right is implicitly included in the bundle of exclusive rights provided in 17 U.S.C. § 106.  The comments submitted specifically focused on the making available right and communication to the public right in connection with displaying images on the internet.

In sum, the comments raised a concern that some courts have misinterpreted the display right in such a way that effectively swallows up visual artists’ making available right and communication to the public right online and that this interpretation is inconsistent with Congress’ intent. In particular, the comments focused on the “server test,” established by the Ninth Circuit in Perfect 10, Inc. v. Amazon, which coupled the display right with the reproduction right.  A series of court decisions adopting the server test, hold that a website only infringes the display right if the copyrighted image is stored on the website’s server, and then displayed using that stored copy.  Under the Copyright Act, however, the display right and reproduction right are independent and, as such, it should be irrelevant whether the one possesses or controls the physical copy from which the display or communication is made.

One of the unfortunate results of these recent decisions is that a website can circumvent the need to obtain a license to use a copyrighted image by implementing certain technological processes that enable a website to display an image without storing a copy on its server.  As this technological slight-of-hand, used to circumvent licensing requirements becomes more prevalent, the loss of control by visual artists over their images increases exponentially. The comments conclude that the courts’ interpretation of the display right eviscerates visual artists’ right to make their images available online and their parallel right to prevent others from doing so.  Websites can circumvent licensing which in turns is causing real economic harm to image libraries and individual creators who rely on the ability to license their works to earn a living.

The recommendations include having the Copyright Office draft guidelines regarding the interaction between the rights of communication to the public and making available, and the exclusive rights set forth in the Copyright Act.  Importantly,  the guidelines should clarify that each of the exclusive rights are distinct – that there can be a violation of the public right to display without also having a reproduction.  The guidelines should further articulate the definition of “display” to include new technological ways of displaying images online.  Lastly, if the courts’ misinterpretation of the display right for visual artists persists, the response supports Congressional action.

The complete response is available here