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, Third Edition longstanding practice clarifies the date of publication for a particular work, which may assist the courts in assessing the copyright owner's eligibility for statutory damages and attorney's fees in an infringement action.

Publication is defined in the U.S. Copyright Act as: "[T]he distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication." 17 U.S.C. § 101 (definition of "publication") (emphases added). The statute also states that "[a] public performance or display of a work does not in itself constitute publication." Id.

To perform or display a work "publicly" means "(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or (2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times." 17 U.S.C. § 101 (definition of "to perform or display a work 'publicly'").

Although, in the vernacular, the term "published" has acquired broad meaning, it has a much narrower meaning as a term of art within the Copyright Act. Moreover, publication was part of the copyright law long before the internet became a means of public communication and dissemination. While technological developments have blurred this traditional concept, the U.S. Copyright Office interprets publication in a manner consistent with congressional intent and with appreciation for the current factual and legal distinctions that may inform the assessment of this issue. Specifically, the Office views publication in light of the statutory definition of "publication," the legislative history for the Copyright Act, and a host of business practices premised on divisible exclusive rights. 1

U.S. copyright law has long drawn a distinction between the reproduction and distribution right, on the one hand, and the public performance and public display right on the other. Congress

1008.3

Publication Issues

1008.3(A)

What Constitutes Publication?

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