The Making Available Right: Realizing the Potential of Copyright's Dissemination Function in the Digital Age

This thesis seeks to analyse the scope of the making available right as introduced by the WIPO Internet Treaties, and provide insights that can guide the interpretation of the right going forward. It does so by critically analysing the key elements of the making available right ― an “act” of making available that is to “the public”. The thesis evaluates current judicial approaches to the right in Australia, the US and EU, and attempts to uncover the underlying theories and justifications driving these disparate decisions. Review of current and historical approaches to “acts” of communication, performance or making available reveal superficial analysis of the “act”, and show that courts have taken expansive approaches to “the public” in key cases. An express justification in these instances tends to be the advancement of copyright’s authorship incentivising function. Unfortunately, these decisions do not adequately address copyright’s dissemination function, i.e. to encourage public access to knowledge. This thesis fills a void in copyright scholarship by expanding on copyright’s dissemination function and advancing our understanding of this important objective. It aims to produce a framework for the interpretation and development of the making available right that furthers copyright’s dissemination function, as well as its authorship function, in the internet era.