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"Interpreting the act: superficial analysis of a crucial element" [2019] ELECD 2277; in Foong, Cheryl (ed), "The Making Available Right" (Edward Elgar Publishing, 2019) 196

Book Title: The Making Available Right

Editor(s): Foong, Cheryl

Publisher: Edward Elgar Publishing

Section: Chapter 6

Section Title: Interpreting the act: superficial analysis of a crucial element

Number of pages: 55

Abstract/Description:

This chapter highlights the insufficient judicial scrutiny of the ‘act’ of making available. It begins by underscoring the importance of the ‘act’ of making available as a key element of the making available right and its impact on the overall scope of the right. Concepts that have been used to preclude more in-depth analysis of the ‘act’ are identified and explained. These include the elusive ‘volition’ requirement and fault-based considerations that have been incorporated into EU law on the ‘new public’. The chapter reveals how these concepts could be used to subvert copyright’s strict liability standard for primary infringement and inhibit copyright’s dissemination function. This chapter explains how such approaches to the ‘act’ amplify the problems with ‘the public’ and, in light of this, why we need a more principled and transparent approach to identifying the ‘act’ of making available as a threshold matter.