Mexico: Making Available Right

Last Updated: 12 October 2016
Article by Luis Schmidt

Communication to the public is on the bundle of copyrights. It implies that works disembody for the purpose of dissemination to an audience that is present or distant from where the communication act is made. A work subject's communication vanishes instantly after the act finishes, although it can be re-embodied, especially if communication consisted in an emission or transmission.

The scope of communication to the public is wide enough to encompass activities like:

  1. "public performance" of works such as drama, dance or music, that are directly and immediately "interpreted", "danced", "acted", "played", "characterized", "recited" or "disserted", in a scenario and before an audience and without employing devices or equipment disseminates them;
  2. "public performance" of drama, dance or music works that have been previously recorded and then played by utilizing equipment, including a radio receiver or a player;
  3. "public display" of fine or similar visual arts, which are directly presented to a public, without a device or equipment;
  4. "public exhibition" or "projection" of films or other audiovisual works, in theaters or places where they can be projected with proper equipment;
  5. "broadcasting" of radio or television works, with dissemination equipment that enables their emission – by air or satellite-, transmission – by cable – or retransmission.

Works disseminate in digital networks in virtue of "transmission", which includes streaming as its principal form. They also disseminate through digital networks by upload, generally onto a website connected to digital networks like Internet. Likewise, works disseminate in digital networks by making available.

Together, making available, reproduction and transmission make the rights necessary to protect digital copyrights. During the past years, it has been discussed at a judicial, legislative and scholar level, whether linking fits the making available description and as a result, can be a form of communication to the public.

In order to qualify for copyright protection, works that are the subject of communication need to address the public. Private communications, including those made for private purposes, like a family or group of friends, are simply excluded from copyright law. Laws have provided different definitions of "public", but they have in common the idea of a plurality of persons. Accordingly, it is "public" when people are generally related to a community or society. Examples of the foregoing are audiences of performed works or of broadcasts, who watch or hear them be played. The German UhrG considers as public a communication that is intended for a group of several members of the public as anyone who does not have a personal relationship either to the exploiter of the work or to a person to whom the work is being made perceivable or accessible.

The right of communication to the public has been analyzed a number of times under the Berne Convention, adding provisions as it is reviewed. In that regard:

  1. article 11 of the original treaty recognized public performance of dramatic, dramatic-musical and musical works;
  2. article 11 of the Act of Rome of 1928, added broadcasting by means of radio or TV, with or without wire and without record of the work, as well as communication to the public by transmission to radio receivers;
  3. article 11ter, added by virtue of the Brussels Act of 1948, set a right of public recital of literary works,
  4. article 14, Act of Berlin of 1908, addressed for the first time exhibition to the public and diffusion by TV, of films as well as the rights granted for other works and that apply to films.

The World Copyright Treaty (WCT) broadened the spectrum of rights of communication to the public, adding in favor of authors the right of making available (article 8). Despite the Berne Convention's standard norms, it has not been easy to harmonize the meaning of communication to the public. The Rome Convention and other treaties sometimes define or classify it differently, same as the domestic laws of countries in world.

Authors, performers and phonogram producers hold a right of making available as an exclusive right to control access to works from the moment that they are offered to users not for reading, viewing or hearing, but for copying or transmitting, in particular when it is not a lawfully authorized copy of a work that is offered.

It relates to the communication to the public of works when applied to on-demand transmissions. The requirement of access "from a place and time individually chosen by members of the public" has to do with the nature of Internet, where the user having the means to connect takes control as opposed to broadcasting that stays with the broadcaster. Internet communications are not simultaneous as in broadcasting but are rather successive, inasmuch as the public receives works after having chosen and requested them from the website operator. Works are made available to the public when uploaded onto websites and the public has access thereto as a result of the upload. Likewise, works already in a website can be made available.

Making available has provided a solution to the problem of unauthorized use of works on the Internet, since reproduction and other forms of public communication cannot help alone. It has pulled the spectrum of communication to the public to the moment when the work has been offered to users and not when it is transmitted. Users are the people who will ultimately read, see or hear the work. Nobody can be impeded getting access to information, including copyrighted works. The legal theory finds a difference between "access right" and "right-of-access". Access right protects copyright holders against those making works available to the public, whereas right-of-access regards human rights that ensure that the public has safe entry to information, including copyrighted works.

The "access right" grants the holder with the capacity to prohibit that means are provided for the trespassing of her property, specifically her intellectual property. Accordingly, the prevention scheme targets the person giving access and not those persons who get the access. By exercising the right of making available, copyright holders can rely on technical measures like DRMs or TPMs, the circumvention of which is forbidden, since that would precisely be a form of making works available to the public.

Right-of-access protects the people who have not created works or produced information, but is the recipient thereof who reads, views, or hears the works or the information. Protection is against the abuse or misuse of the power someone may have by possessing the works or information and that attempt to the rights or interests of the addressees. By no means could it be considered that copyright holders exercising their rights would ab initio be abusive of their rights. Misuse would require a conduct going beyond the statement of holding and exercising rights; for example, the creation of a barrier to prevent to information in a lawful fashion. The making available right could eventually be the subject of copyright exceptions or limitations or of rules of fair dealing or fair use. So far there are no such restrictions under international treaties, apart from the three-step-test or the specific exceptions of the Berne Convention. On the other hand, human rights of access or free speech in some manner perform as exceptions to copyrights.

In recent years, a question has been raised asking if making available extends to the linking of websites holding copyrighted works. The issue is that, by being linked, works uploaded onto websites can be made available to the public. Linking is a broad notion that encompasses hyperlinking to the first or initial page in a website; deep linking; framing; and embedding. The forms of linking share in common that they all send users from one website to another, but have variations depending on factors principally related with the chance that users activate the link –as it happens with an hyperlink or deep linking- or the link is produced automatically from one website to another, allowing works residing in the former be viewed in the latter –as it happens in framing or embedding.

The European Court of Justice (ECJ) has resolved three cases regarding linking to copyrighted works. Svensson (Nils Svensson et al v. Retriever Svergige AB. C-466/12), is the first case resolved by the ECJ addressing whether linking – specifically deep linking- may represent an act of making available and hence a communication to the public. Retriever Sverige had a website with hyperlinks to other websites, including the one where some articles had been lawfully uploaded. The ECJ analyzed that in order to be regarded communication to the public, the link needs to redirect to a new public that is different to the public to which the work was originally directed.

In Best Water (Best Water International GmbH v. Michael Mebes and Stefan potsch. C-348/13), The ECJ confirms the criterion of Svenson, but with regard to framing, by which a work is shown giving the impression that is within the linked website, although it comes from a different one. Accordingly, framing can be a form of making works available and consequently, of communication to the public – a new public. The discussion is still going at the German courts based on the lawful or unlawful character of the original upload in YouTube of a given video.

In GS Media GS Media BV v. Sanoma Media Netherlands BV et al. C-160/15, the ECJ has added to the requirement of new public that the linker intends a profit and that she knows about the unlawful character of the link. However, the added conditions have been criticized as affecting copyright holders, as a question referenced to the gravity of an infringement and not the agreement as such.

Similar cases have been decided in countries like Mexico. In particular, the Mexican Institute of Industrial Property (IMPI) decided on the BA'K hyperlinking case without imposing any sort of burden or condition, like new public or intent. In that case linker employed hyperlinks addressing a website where works had been uploaded unlawfully. IMPI found a direct infringement to the right of communication of the public, by the fact that the hyperlinks provided made works available to the public.

The recent decisions from the ECJ and of other countries have set a new trend in connection with digital copyrights. Copyright has clearly evolved based on the right of making available originally adopted under WCT. And the making available right has encountered a connection with linking in all forms. Linking as a right shall bring lots of benefits in order to fight against infringement and piracy on the Internet, at the same time that it respects rights-of-access. In the end, copyright will continue to grant adequate protection to authors, performers and producers, without to affect the rights of the public in connection with the accessing of works, performances or productions.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions