Copyright question

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Copyright question

Postby purell2 » Fri Dec 07, 2012 10:50 pm

Hey all,

I'm outlining for copyright and I'm confused about the § 110 (4) exception to the public performance right. §110(4) says there is an exception for "performance of a nondramatic literary or musical work otherwise than in a transmission to the public, without any purpose of direct or indirect commercial advantage. . . "

Does this mean that if I play a CD in public (without any commercial intent), I'm ok? I'm confused about what a transmission is. Does it have to be a live performance?


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Re: Copyright question

Postby studebaker07 » Sat Dec 08, 2012 11:12 am

Setion 106(4) of the Copyright Act gives the owner of a copyright the exclusive right to perform the copyrighted work publicly, subject to the exception of 110(4), which specifies that certain performances (i.e. non-commercial) not made through a public transmission. In the case of §110(4), two factors must be present in order for the public performance to be infringing: (1) a “transmission” and (2) to the public. Under §101, to transmit a performance is to “communicate it by any device or process whereby images or sounds are received beyond the place from which they are sent”. A “public” performance is defined as a performance at a place open to the public or at any place where a substantial number of persons outside of a normal circle of family and its social acquaintances is gathered. 110(4) is written in such a way that even if you have no commercial intent, if you publicly transmit a musical work you are infringing the on the owner’s copyright in that work.

In your CD hypothetical, whether you could play the CD depends on the context. If you play the work “in public” such that a substantial number of people are present AND you somehow play the CD so that it can be heard beyond the place from which the CD was originally played (say, along different streets rigged with a sound system), then this appears to be outside the scope of §110(4) even if you lack a commercial intent. Columbia Pictures v. Aveco is a good case to look at for what constitutes a public performance. It is not an extremely high-bar to meet.

In terms of your question on whether a performance has to be live, §101 provides a definition of performance that is far broader than merely a live performance. For example, merely transmitting the performance of a work by any device or process is enough to constitute a performance.

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