Chapter 9

Making Available: Existential Inquiries
David Fewer 

One of the more unusual aspects of the 1996 WIPO Internet Treaties is their requirement that signatories implement an exclusive “making available” right in domestic legislation. Bill C-60, Canada’s proposed legislative implementation of this right, proposes to provide an uneasy home for this right amidst rights-holders’ communications rights. For authors, this simply carves out an exclusive making available right amidst an already exclusive communications right. For performers and sound recording makers, Bill C-60 carves an exclusive making available right out of a communication right that offers only a right to remuneration, not an exclusive right. Clearly, questions of rights administration arise, and the danger to user groups of having to compensate rights holders under multiple heads for a single dealing is apparent. The Bill raises other important questions, with little guidance to the answers. Who "makes available"? When is content made available? How does the right interact with the authorization right, and how does it combine with other rights? What are the implications for Canada’s private copying regime and for artists’ right to compensation for private copies made through peer-to-peer music file sharing? In the end, Bill C-60 leaves many questions about the nature of the making available right unanswered. 


About the Author: 

David Fewer is Staff Counsel to CIPPIC, the Canadian Internet Policy and Public Interest Clinic, Canada’s only technology law clinic. Mr. Fewer leads CIPPIC’s advocacy on intellectual property-related matters. Mr. Fewer has practised intellectual property and technology law since 1997, first with national law firms, and later with his own firm, Fewer & Company. Prior to entering private practice, Mr. Fewer completed an LL.M. at the University of Toronto, where he wrote on intellectual property policy and the application of the Charter to copyright law. Mr. Fewer clerked with the Federal Court of Canada, where he had the opportunity to work with a number of judges at both the Court of Appeal and Trial Division on intellectual property matters and related issues. He has taught and written extensively on intellectual property and technology law and frequently comments in the media on such matters.