The Making Available Right and Online Communication: Doctrinal Analysis and Commercial Implications under the WIPO Copyright Treaty

Abstract

When the distribution of creative content shifted from physical formats to decentralized digital networks, it completely upended traditional copyright frameworks, forcing international lawmakers to build new legal baselines for interactive data transmission. This paper looks closely at the "making available" right created by Article 8 of the WIPO Copyright Treaty (WCT), exploring both its underlying theoretical foundations and its everyday commercial application. The methodology relies heavily on a rigorous doctrinal analysis of the statutes themselves, paired with a comprehensive comparative look at international case law. Specifically, the analytical focus centers on the Court of Justice of the European Union (CJEU) doctrine alongside corresponding United States copyright applications. To see how these rules play out, the study tests them against modern digital realities and emerging technological paradigms. The WCT's umbrella solution initially gave member countries significant legislative flexibility. Yet, enforcing the making available right in practice leans almost entirely on how domestic courts choose to interpret evolving concepts, such as the "new public" and individually chosen temporal criteria. Ultimately, strictly enforcing this right along traditional territorial lines creates massive structural headaches for global digital platforms operating across borders. Building a sustainable digital economy means stakeholders urgently need to rethink this outdated framework. Policymakers must balance strong intellectual property enforcement with actual jurisdictional predictability, making sure that fragmented territorial licensing does not end up suffocating technological growth and cross-border cultural exchange.