Section 101 of the Copyright Act defines “publication” as a distribution of copies or phonorecords to the public by sale or other transfer of ownership or by rental, lease, or lending. Copies and phonorecords in turn are defined as material objects. Together, these definitions embody two principal requirements for a work to be deemed published.
- First, the distribution must be “to the public.” A work may be considered published as long as the general public has the opportunity to acquire copies, even if only a small number of copies, or no copies, are actually distributed.
- Second, the distribution must involve the transfer of “material” copies. Works that are distributed to the public without a transfer of a material copy, such as works disseminated by broadcast or online streaming, do not qualify as published.
The material copies requirement of publication does not necessarily mean that a copy must actually change hands for the work to be published. Courts have found a publication to have taken place when the public (with the authorization of the rights holder) has the ability to produce material copies of copyrighted works, such as through downloading an electronic copy or printing a copy of a work distributed through the Internet. In a succession of cases, courts have ruled that the unauthorized dissemination of works such as sound recordings, photographs, and software through the Internet infringes the rights holder’s distribution right because the public obtains the ability to make material copies of the protected works.
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