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, 1957.​

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 phonorecords 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 right."

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 nature. 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 is a new Delhi-based lawyer and is managing partner of full service Law Firm, Diwan Advocates.