Publication was the key to obtaining federal copyright under the Copyright Act of 1909. Publication is still important to copyright owners but it is no longer the key. Publication is defined in the Copyright Act of 1976 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. 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.”
Publication Under the 1909 Act
Under the 1909 Act, publication constituted the dividing line between common law copyright and statutory copyright. As long as an unpublished work remained unpublished, it was protected by common law copyright. Once a work was published with the requisite notice affixed to each copy, federal statutory copyright protection attached. However, if a work was published without notice, it was forfeited to the public domain.
Publication Under the Copyright Act of 1976
United States works that were in the public domain on January 1, 1978, remain in the public domain under the 1976 Copyright Act. Unpublished works are protected under the Copyright Act of 1976, regardless of the nationality or domicile of the author, while published works by foreign authors are protected only under certain circumstances.
Importance of Publication
Publication is an important concept in copyright for the following reasons:
- Works that are published in the United States are subject to mandatory deposit with the Library of Congress.
- Publication of a work can affect the limitations on the exclusive rights of the copyright owner.
- The year of publication may determine the duration of copyright protection for anonymous and pseudonymous works and for works made for hire.
- Deposit requirements for registration of published works differ from those for registration of unpublished works.
- 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.
What Constitutes Publication
The sale of phonorecords constitutes publication of the underlying work, for example, the musical, dramatic or literary work embodied in a phonorecord. 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.