According to the understanding of the concept of communication from Indian
perspective, Communication to the public means making any work available for
being seen or heard or otherwise enjoyed by the public directly or by any means
of display or diffusion.
This is specifically mentioned in Section 2(ff) of the Copyright Act, 1957. It
is not necessary that any member of the public actually sees, hears or otherwise
enjoys the work so made available. With regards to establishing a
communication to public, there are various means for such communication.
Section 2, being the definition provision, defines 'broadcasting' and Section 3
defines 'publication' as two such means of communication. After attaining a
brief knowledge about the Indian aspect of communication to public, it is
pertinent to understand the laws existing prior to the Indian Copyright Act,
The concept of 'making available to public' emerged in the Article 6 and 8 of
the WIPO Copyright Treaty (WCT). Article 6 talks about 'making available' by way
of sale or other means of transfer while Article 8 talks about making available
through wire or wireless means.
This right of making available is given to the author of the work so that he
makes his work available to public only through the means desired by him. This
discretion is granted to the author in order to avoid piracy of his works. Such
an inclusion in Article 8 of WCT fills the gaps created by the Berne Convention
and includes all methods of transmissions.
The Berne Convention never talked about 'making available' or 'distribution'.
WCT specifically mention both of them so as to clarify the further confusions.
This is justified as the provision talks about 'wire or wireless means'.
Article 6 of WCT talks about the transfer of tangible copies by method of sale
or other forms of transfer of ownership. Articles 6 and 7 specifically deal with
the transfer of fixed copies that can be put into circulation. It relates to the
right of distribution of the owner of the copyrighted work. Article 8 talks
about 'communication to public'. Such a communication in this provision includes
wire as well as wireless transmissions.
This has been of a great help as it is inclusive of the present developed
technology where internet has become a vast mode of transmitting of authored
works. Even after mentioning all of the above, WCT had left behind few areas
which were necessary to be considered in order to recognize a situation of
infringement being occurred.
The US Copyright Act has stretched out its hands to extend as much understanding
as necessary for clearing of the ambiguity left by the WCT. Section 106(3) of
the US Copyright Act gives an exclusive right to the copyright owner to
distribute copies of copyrighted works to public through sale or transfer of
ownership. The statutory definition of 'publication' says:
"distribution of copies or phonorecords of a work to the public by sale or
other transfer of ownership, or by rental, lease or lending...offering to
distribute copies or phono records to a group of persons for purposes of further
distribution, public performance, of public display".
The 'copies' as referred to in this definition relate to material objects which
are fixed by any method now known or later developed and the work can be
communicated either directly or with the aid of machine or device.
The Working Group on Intellectual Property Rights in 1995 had put forth
recommendations regarding the amendment of Section 106(3) by adding "possibility
of distribution by transmission". There was a huge possibility that such an
inclusion could have helped in reducing the ambiguity and uncertainty of the
distribution rights. However, such recommendations were not accepted and further
statutory developments were left to the case laws.
In Hotaling v. Church of Jesus Chist of Latter Day Saints
, the Fourth
Circuit had held:
"The Church's addition of unauthorised copies of a copyrighted material to
its collection, listing that work in the collection, and making it available to
public to borrow constituted an infringement of the Section 106(3) distribution
In the case of In the case of In re Napster, Inc. Copyright Litigation, Judge
Marilyn Patel had held that the word 'distribution' is equal to 'publication'
and such a thing made to public at large would not constitute an infringement if
the further purpose of such distribution is not shown. If the further
distribution is being made without any specific purpose, it will not amount to
infringement of copyright.
Recent US cases have brought out that merely making available to the public,
copies of a copyrighted work can constitute distribution under Section 106(3)
without the need for there to have been an actual dissemination of a copy
thereof. In the case of Interscope v. Duty
, 'distribution' and
'publication' were again considered to be synonymous and it was said that offers
to distribute for further redistribution are to be considered infringing in
This basically related to sound recordings and the mode of transmission was file
sharing over the internet. In Capitol Records, Inc. et al v. Jammie Thomas
it was stated:
"The act of making copyrighted sound recordings available for electronic
distribution on a peer-to-peer network, without licence from the copyright
owners, violates the copyright owners' exclusive right of distribution,
regardless of whether actual distribution has been shown."
The US Copyright completely compliments the WCT with a few modifications. While
the WCT talked about the distribution of tangible copies, the US Copyright Law
included the transmission through technological development either wired or
wireless. The law in US is settled that the distribution of unauthorised
copyrighted material or redistribution of the same without permission of the
copyright owner leads to infringement.
Written By: Dr Farrukh Khan, Advocate,
- 118 F. 3d 199 (4th Cir. 1997.)
- C MDL-00-1369 MHP
- Mary W S Wong,
- No. 05-CV-3744-PHX-FJM ( Apr. 14, 2006)
- Case No. 06-cv-1497 (MJD/RLE.)
Advocate and Managing Partner of Diwan Advocates
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