Overview[edit | edit source]

Under Section 101 of the 1976 Copyright Act, 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.

Discussion of Part (1)[edit | edit source]

The definition in part (1) contemplates that groups of people will congregate in a physical location. With the Intranet, part (1) raises the issue of whether a "virtual" gathering of individuals outside a family and social acquaintances constitutes a "public."

A simple illustration would be a meeting of a corporate Board of Directors, first as a physical gathering, and then as an electronic one. Suppose that a corporation's Board of Directors were meeting face-to-face and that as part of the meeting, a musical composition were played. Assuming that the Board meets at a place that is not generally "open to the public," the question whether the performance of the music was "public" would turn on whether the meeting was at a place "where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered."

If the Board were small, it is possible that it would not constitute a "substantial number of persons," and the performance would therefore be private.[1] But even groups with as few as 21 persons and their guests have been found to be "substantial,"[2] so a larger Board meeting might well be considered public. If the face-to-face gathering is large enough to be "public," unless some other exemption such as fair use applied, the group would need a license for the composition’s performance because it would be, by hypothesis, a public performance.

Now suppose the same Board members were to meet electronically online, in an interactive chat room or by means of interactive video conferencing. Suppose again that the same musical work were played electronically. Whatever policy justifications applied to cause the first, face-to-face meeting to be considered "public" would seem to apply here as well. By hypothesis, nothing of apparent copyright significant would have changed — not the number of people, the purpose of the meeting, the purpose for using the music, or anything else except the physical presence of the individuals in question. Would the electronic music performance still be "public?"

Presumably an electronic Board of Directors' meeting would not be at a "place" open to the public. Even an online meeting would typically be confined to Board members and others authorized by the Board. So again, that part of the statutory definition would not be satisfied.

Discussion of Part (2)[edit | edit source]

But unlike the physical meeting, the virtual meeting might also fail the second part of the test: a meeting "at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered." Here, the problem is that "place" is the crucial word but "place" does not readily apply to an online meeting where all the participants are in physically different locations.

One might argue that "place" should be taken metaphorically as a virtual place. The "place" could therefore be said to be "cyberspace." That interpretation would make sense because it would result in comparable treatment of the two meetings, the one physical, the other virtual. Both would be public, or if the numbers were small, both would be private, but in any event they would be treated the same way.

Unfortunately, the notion of "place" in the statute is listed in contrast to part (2) of the definition, which defines "public performance" as also meaning "to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1)" — that is, a public performance includes a transmission to a place where there are gathered a substantial number of persons. The fact that Congress chose to refer to "transmit" in this context means that it contemplated electronic transmissions of at least the radio-television type. The fact that it spoke of "transmitting to a place" suggests that it did not consider the transmission itself to constitute a "place" (else the wording would be redundant), or that a "place" could be anything other than a physical place (else it would not make sense to transmit "to a place").

If that interpretation of "place" as being confined to physical place is correct, then the electronic meeting would not be a public one, even though precisely the same meeting accomplished face-to-face would be public. Consequently the performance of the music during the electronic meeting would not constitute a public performance.

The definition offers yet a third way that the music performed for an electronic meeting might be "publicly performed." The definition quoted above notes that to perform a work publicly includes "to transmit or otherwise communicate a performance . . . to the public." This part, "to transmit . . . to the public," is ambiguous. "The public" appears to refer to "the public generally,"[3] and hence would exclude a meeting of a board of directors. On the other hand, "public" might be used as a term of art, but if so, then the definition is circular: a public performance is a performance made to the public.

To avoid that circularity, one must fall back on the notion that "the public" here means the larger public and not just "a public." In short, a careful reading of the statute on this point supports the conclusion that music played to a physical meeting of a board of directors might be a public performance, but the same music played to a "virtual" meeting of the same board might not be.

At least one case has held that it does not matter if members of the public receive the performance at the same time or different times, at the same place or different places. Making a work available to be received or viewed by the public over an electronic network is a public performance or display of the work.[4]

Although there are differing interpretations of "transmit," "one must conclude that under the transmit clause, a public performance at least involves sending out some sort of signal . . . ."[5] Thus, to have violated the right of public performance, an alleged infringer must, at the very least, send out some form of a signal.[6] To aid in the determination of whether a website has sent out some form of signal, the Ninth Circuit has adopted the "server test," articulated by the Central District of California in Perfect 10, Inc. v. Amazon.com, Inc..[7] Under this test, the transmitting website must actually host and store the digital format of the copyrighted material.[8]

References[edit | edit source]

  1. "Routine meetings of businesses and governmental personnel would [not be public] because they do not represent the gathering of a 'substantial number of persons.'" H.R. Rep. No. 1476, 94th Cong., 2d Sess. 64 (1976)], reprinted in 1976 U.S.C.C.A.N. 5668 (hereinafter "House Rpt.").
  2. See Fermata Int'l Melodies, Inc. v. Champions Golf Club, Inc., 712 F.Supp. 1257, 1260 (S.D. Tex. 1989) (full-text),
  3. See House Rpt., at 64-65 ("a performance made available by transmission to the public at large is 'public'. . . .") (emphasis added).
  4. Playboy Enters., Inc. v. Frena, 839 F. Supp. 1552 (M.D. Fla. 1993) (full-text).
  5. Columbia Pictures Indus., Inc. v. Professional Real Estate Investors, Inc., 866 F.2d 278, 282 (Cal. 1989) (full-text) (italics added).
  6. Id.
  7. 487 F.3d 701, 715-16 (9th Cir. 2007) (full-text).
  8. Id.

Source[edit | edit source]

  • This page uses content from I. Trotter Hardy, Project Looking Forward: Sketching the Future of Copyright in a Networked World (Final Report May 1998) (full-text) (prepared for the U.S. Copyright Office).
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