612 Date of Publication
This Section discusses the U.S. Copyright Office’s practices and procedures regarding the date and nation of first publication for a work of authorship (if any).
For a general discussion of publication, see Chapter 1900.
612.1 General Policy
If the work described in the application has been published, the applicant must specify the date of publication and nation of first publication for that work. 17 U.S.C. § 409(8).
612.2 What Constitutes Publication?
For purposes of U.S. copyright law, “[p]ublication is 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.” 17 U.S.C. § 101 (definition of “publication”).
For instance, a book is published when copies of the work are distributed online or in bookstores. A newspaper is distributed when copies are sold at newsstands or delivered to subscribers’ doorsteps. A song is distributed when print copies or phonorecords are sold (e.g., on sheet music or in mp3 format). Software is distributed when copies are distributed by purchase or license, whether in CD-ROM format or online (provided that the copies are actually downloaded and not merely accessed online). On the other hand, a draft dissertation or other manuscript that is sent to a dozen people for peer review with a note stating that the copy should not be shared with other parties is not considered publication.
Likewise, “offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication.” Id. For example, when a motion picture distribution company offers copies of a motion picture to movie theaters for public showing in the theater, the movie is published.
“A public performance or display of a work does not of itself constitute publication.” Id.
For a general discussion of publication and for specific guidance on determining whether a particular work has been published, see Chapter 1900.
612.3 Determining whether the Work Is Published or Unpublished
The applicant – not the U.S. Copyright Office – must determine whether the work is published or unpublished. This determination should be based on the facts that exist at the time the application is filed with the Office, and it should be based on the definition of publication under U.S. copyright law, even if the work was created or published in another country.
As a general rule, the Office will accept the applicant’s representation that the work is published or unpublished, unless that statement is implausible or is contradicted by
