Interpretive harmonisation through the use of autonomous legal concepts: autonomy in substance

This chapter analysed the substance of the autonomous legal concept of the economic right. The Act Criterion means that performance of a deliberate action that provides potential access to an object of protection qualifies as an act of communication and an act of making available. Act Criterion is therefore technical in nature. This criterion provides a ‘floor’ for the infringement assessment and gives us an answer as to whether a deliberate (copyright-relevant) action provides (potential) access to the object of protection. Conversely, Audience Criteria are flexible and can be balanced and nuanced. Nevertheless, Audience Criteria (public, specific technical means, new public, the profit-making nature of the act of communication) provide the ‘ceiling’ for the infringement assessment and inform us whether a deliberate (copyright-relevant) action has widened the audience without authorisation. They also provide for the infringement assessment of the end point of the autonomous legal concept of the economic right.