The controversy surrounding the question of whether the transmission of a work via social media violates the right of distribution has very little impact in practice. If we consider that the right of distribution only concerns physical copies, then the transmission of a work will always involve some reproduction or making something available, both of which in any case require the author’s permission.
184.108.40.206 Right of distribution
According to Art. 10 para. 2 (b) CopA, the author has the exclusive right “to offer, transfer or otherwise distribute copies of the work”. This means the author has the right to decide whether and when their work is distributed to the public. The right of distribution covers any making available (disposal or transfer of possession) of a copy of a work (Cherpillod I. in: de Werra/Guilliéron (ed.), CoRo, Propriété intellectuelle [Intellectual Property] p. 85).
When it comes to social media, it is important to find out if the transmission of a work on the network, which results in a local, temporary copy being created while a web page is being consulted, for example, or the work being downloaded onto a more permanent carrier, constitutes distribution (Cherpillod I. in: de Werra/Guilliéron (ed.), CoRo, Propriété intellectuelle [Intellectual Property] p. 86).
It is difficult to answer this question at the present time as opinions are divided on the subject. Following the revision of the law in 2007, which explicitly introduced the right to make things available, some authors believe that the right of distribution only refers to physical copies. According to this view, the various forms of communication associated with computer networks do not constitute distribution but represent a particular way of making things available which in turn encompasses distribution (Cherpillod I. in: de Werra/Guilliéron (ed.), CoRo, Propriété intellectuelle [Intellectual Property] p. 86). In other words, the user who, for example, uploads a video online is not distributing a copy of the work. There is no doubt, however, that other exclusive rights (rights to make available or reproduce) can apply (Rebetez M., Internet, les réseaux sociaux et le droit d’auteur [Internet, Social Networks and Copyright], p. 61).
Other authors assume that making something available and distributing it are two separate acts. According to this view, posting a work online on social media so third parties can consult it when they want constitutes offering a work to the public and is therefore a violation of the right of distribution.
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