Communicating/making work available to the public

Section 20 of the Copyright Designs and Patents Act 1988 (‘the Act’) provides that the communication of a copyright work to the public is an act restricted by the copyright in a literary, dramatic, musical or artistic work, a sound recording or film or a broadcast.

Communication to the public means to communicate to the public by electronic transmission such as broadcasting in a way where members of the public may access it from a place and at a time individually chosen by them. Communication includes all forms of electronic transmission.

In UEFA and Ors v Keith Briscomb and Ors [2006] EWHC 1268 (Ch) the court held that the copyright in material digitally captured and broadcast into a digital signal and disseminated over the internet infringed copyright in the works by communicating them to the public.

Section 6(1) of the Act defines broadcasting as electronically transmitting sounds, visual images etc which can be received by members of the public.

Making a work available to the public

To make copyright work available to the public such as images, sounds etc it is not necessary that they be capable of being lawfully received by the public.

The making available right in a copyright work covers on-demand or other interactive services, which are accessed at a time and place chosen by members of the public.

Therefore, making work available to the public will cover internet transmissions of a non-broadcast kind by electronic means.

In Polydor Limited and Others v Brown and Others [2005] EWHC 3191 the making available of copyright material was infringed by simply making it available on a file-sharing network regardless whether the material had been downloaded.

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