Publication is no longer the key to obtaining federal copyright as it was
under the Copyright Act of 1909. However, publication remains important to
copyright owners.
The 1976 Copyright Act defines publication as follows:
"Publication" is the 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. A public performance or display
of a work does not of itself constitute publication.
NOTE: Before 1978, federal
copyright was generally secured by the act of publication with notice
of copyright, assuming compliance with all other relevant statutory conditions.
U. S. works in the public domain on January 1, 1978, (for example, works
published without satisfying all conditions for securing federal copyright
under the Copyright Act of 1909) remain in the public domain under the
1976 Copyright Act.
Certain foreign works originally published without notice had their
copyrights restored under the Uruguay Round Agreements Act (URAA).
Federal copyright could also be secured before 1978 by the act of registration
in the case of certain unpublished works and works eligible for ad interim
copyright. The 1976 Copyright Act automatically extends to full term
(section 304 sets the term) copyright for all works, including those subject
to ad interim copyright if ad interim registration has been made on or before
June 30, 1978.
A further discussion of the definition of "publication" can be
found in the legislative history of the 1976 Copyright Act. The legislative
reports define "to the public" as distribution to persons under
no explicit or implicit restrictions with respect to disclosure of the contents.
The reports state that the definition makes it clear that the sale of phonorecords
constitutes publication of the underlying work, for example, the musical,
dramatic, or literary work embodied in a phonorecord. The reports also state
that it is clear that any form of dissemination in which the material object
does not change hands, for example, performances or displays on television,
is not a publication no matter how many people are
exposed to the work. However, when copies or phonorecords are offered for
sale or lease to a group of wholesalers, broadcasters, or motion picture theaters,
publication does take place if the purpose is further distribution, public
performance, or public display.
Publication is an important concept in the copyright law for several reasons:
Works that are published in the United States are subject to mandatory
deposit with the Library of Congress. See discussion on "Mandatory
Deposit for Works Published in the United States."
Publication of a work can affect the limitations on the exclusive rights
of the copyright owner that are set forth in sections 107 through 121 of the law.
The year of publication may determine the duration of copyright protection
for anonymous and pseudonymous works (when the author's identity is not
revealed in the records of the Copyright Office) and for works made for hire.
Deposit requirements for registration of published works differ from
those for registration of unpublished works. See discussion on
"Registration Procedures."
When a work is published, it may bear a notice of copyright to identify
the year of publication and the name of the copyright owner and to inform
the public that the work is protected by copyright. Copies of works published
before March 1, 1989, must bear the notice or risk loss of copyright protection.
See discussion on "Notice of Copyright."
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