Copyright Compendium

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1902 What Constitutes Publication?

1902 What Constitutes Publication?


Section 101 of the Copyright Act defines publication as “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.” 17 U.S.C. § 101. It states that “offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication.” Id. It also explains that “[a] public performance or display of a work does not of itself constitute publication.” Id.


The legislative history explains that “a work is ‘published’ if one or more copies or phonorecords embodying [the work] are distributed to the public” with “no explicit or implicit restrictions with respect to [the] disclosure of [the] contents [of that work].”

H.R. REP. NO. 94-1476, at 138 (1976), reprinted in 1976 U.S.C.C.A.N. at 5754. It also

explains that publication occurs “when copies or phonorecords are offered to a group of


wholesalers, broadcasters, motion picture theatres, etc.” for the purpose of “further

distribution, public performance, or public display.” Id.


Although it is not expressly stated in the statutory definition, the legislative history indicates that publication occurs only (I) when copies or phonorecords are distributed by or with the authority of the copyright owner, or (ii) when an offer to distribute copies or phonorecords to a group of persons for further distribution, public performance, or public display is made by or with the authority of the copyright owner. For a definition and discussion of the terms “copies” and “phonorecords,” see Chapter 300, Section 305.


Offering to distribute copies or phonorecords to a group of persons for further distribution, public performance, or public display without authorization does not constitute publication. Likewise, an unauthorized distribution of copies or phonorecords does not constitute publication. Instead it generally constitutes copyright infringement. See H.R. REP. NO. 94-1476, at 62 (1976), reprinted in 1976 U.S.C.C.A.N. at 5675-76 (explaining that Section 106 (3) of the Copyright Act gives copyright owners “the right to control the first public distribution of an authorized copy or phonorecord of [the] work, whether by sale, gift, loan, or some rental or lease arrangement”).