Is an Internet posting of a work a world-wide publication for copyright purposes?

June 16th, 2011 by Barry Sookman Leave a reply »

Is a work published worldwide for copyright purposes when it is posted on a publically available internet web site? That issue was just canvassed by a US District Court in Kernal Records Oy v. Mosley2011WL 2223422 (S.D.Fla. Jun. 7, 2011). The Court ruled that making a music file available  on a website in Australia was an act tantamount to global and simultaneous publication of the work which brought the work within the definition of a “United States work” under § 101(1)(C) of the US Copyright Act. The effect of the holding was that the copyright infringement suit brought in the US was dismissed for failure to meet that legislation’s registration requirement for a “United States work”.

The court’s reasons are summarized below:

We next concluded that publishing AJE on a website in Australia was an act tantamount to global and simultaneous dissemination of the work, rendering it a “United States work” subject to § 411(a)’s registration requirement…

A “United States work” is defined in the copyright statute as a work that “was first published . . . simultaneously in the United States and a foreign nation that is not a treaty party.” 17 U.S.C. § 101(1)(c). We have already determined that AJE was “published” on the Internet in Australia. Was it published simultaneously in the United States and elsewhere?…

“Simultaneous” is defined in relevant part as “existing or occurring at the same time: exactly coincident.” Merriam-Webster Dictionary online, http://www.merriam-webster.com/dictionary/simultaneous (June 1, 2011). Absent evidence of Congressional intent to the contrary, the term “simultaneously” should be given its ordinary and plain meaning.

There can be little dispute that posting material on the Internet makes it available at the same time — simultaneously — to anyone with access to the Internet. There is nothing in the text of the statute to suggest that Congress intended to except works published on the Internet from the phrase “first published . . . simultaneously” or that certain works should be excluded from the definition of “United States work” based solely on the manner in which they are published. Nor has Plaintiff identified anything in the statutory provisions or legislative history that suggests Congress intended such an exception.

If Congress had intended to exclude works published on the Internet from the definitions of “United States work” or “publication” in § 101, it easily could have done so. See, e.g., Consumer Product Safety Comm’n, 447 U.S. at 109 (Congress could have included the disclosure of information in response to a FOIA request in the list of exceptions set out in the Consumer Product Safety Act, but it did not). The copyright provisions at issue here were modified in 1998 as part of the Digital Millennium definition of “United States work” to its current form) & § 102(d) (same for registration requirements for foreign works). We must presume that Congress was fully aware of the Berne Convention and other international treaties as well as the global nature of the Internet when it enacted the 1998 Act. Yet it evidenced no intent to treat Internet-published works differently from works published in another manner….

We hold that publishing AJE on a website in Australia was an act tantamount to global and simultaneous publication of the work, bringing AJE within the definition of a “United States work” under § 101(1)(C) and subject to § 411(a)’s registration requirement. Gallefoss elected to publish AJE on the Internet and the legal consequences of that decision must apply. Plaintiff was therefore required to register AJE prior to seeking judicial enforcement of its copyright rights.

The concept of publication is an important one in copyright law. For example, in Canada, the term of protection for some works, such as anonymous works depends on when a work is published[1]. As well, subsistence of copyright can depend on whether a work was first published in a treaty country.[2]  It is therefore a matter of some importance in Canada, like it is in the U.S., to consider whether a Canadian court would consider an online distribution of a work over the Internet as a publication of the work.

The term publication is defined in the Copyright Act in section 2.2:

2.2(1) For the purposes of this Act, “publication” means

(a) in relation to works,

(i) making copies of a work available to the public,

(ii) the construction of an architectural work, and

(iii) the incorporation of an artistic work into an architectural work, and

(b) in relation to sound recordings, making copies of a sound recording available to the public,

but does not include

(c) the performance in public, or the communication to the public by telecommunication, of a literary, dramatic, musical or artistic work or a sound recording, or

(d) the exhibition in public of an artistic work.

It is obvious from the above definition that if a work is distributed on a tangible medium like a CD or DVD in Canada it would meet the requirement for publication.

However, a work is not published if it is communicated to the public by telecommunication. The Federal Court of Appeal has ruled in several cases that a work is communicated to the public over the Internet when copies are distributed to the public using that medium of telecommunication. Bell Canada v. Society of Composers, Authors and Music Publishers of Canada, 2010 FCA 220, Entertainment Software Association and the Entertainment Software Association of Canada v. CMRRA/SODRAC Inc., 2010 FCA 221, Canadian Wireless Telecommunications Association v. Society of Composers, Authors and Music Publishers of Canada, 2008 FCA 6 If the logic of these cases is applied to determine when a work is published, Canadian law would reach the anomalous, technologically non-neutral  result that a work is published when it is distributed on tangible media, but not when copies are distributed in electronic form.

The Supreme Court granted leave in the Bell v SOCAN and ESA v CMRRA/SODRAC cases to determine whether, and in what circumstances, a download of a musical work is a communication to the public. We will have to wait and see whether the Court’s decision in these cases alters the current law on this issue.


[1] Section 6.1 and 6.2

[2] Section 5(c) and 5(1.1)

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