| Abstrakt: |
Copyright owners' exclusive right to communicate to the public includes the 'making available' of a work, as set out in the WIPO Internet Treaties of 1996. The right has been implemented in countries such as Australia and Canada, however, the overlap between the 'making available' aspect of the communication right and the reproduction right remains unresolved. The Supreme Court of Canada has sought to limit overlaps between these rights. In Society of Composers, Authors and Music Publishers of Canada v Entertainment Software Association of Canada ('SOCAN v ESA'), the Court held that when a person makes a durable copy of a work available for download, this is not a communication of a work to the public, but merely an 'authorisation' of its reproduction, and therefore an exercise of the reproduction right. The Canadian approach and sentiment towards overlaps may be contrasted with that of Australian courts, which tend to take overlaps in protection as a given, and show limited concern about double dipping or doctrinal clarity. The National Rugby League Investments Pty Ltd v Singtel Optus Pty Ltd case and relatively recent cases involving Redbubble Ltd decided by the Federal Court of Australia are examples of this. In drawing out lessons from the groundbreaking SOCAN v ESA decision, this article prompts Australian courts to interpret the communication right in a careful and considered manner that limits overlaps in protection. [ABSTRACT FROM AUTHOR] |
