For a detailed articulation of these definitions and a general discussion of publication, see Chapter 1900. For a general discussion of publication on the Internet, see Sections 1008.3(B) through 1008.3(F).
1008.3(B) Reproduction and Distribution Distinguished from Performance and Display
The statutory definition makes clear that publication requires (i) 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, or (ii) an offer to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display. 17 U.S.C. § 101.
As a general rule, the U.S. Copyright Office considers a work "published" when it is made available online if the copyright owner authorizes the end user to retain copies or phonorecords of that work. For example, the fact that a work is expressly authorized for reproduction or download by members of the public or is expressly authorized for distribution by the public creates a reasonable inference that copies or phonorecords have been distributed and that publication has occurred.
Likewise, the Office generally considers a work "published" when the copyright owner makes copies or phonorecords available online and offers to distribute them to a group of persons for purposes of further distribution, public performance, or public display. For instance, the fact that a sound recording has been offered for distribution to multiple online streaming or download services, or the fact that a photographer offered a photograph to multiple stock photo companies or website for purposes of further distribution or public display creates a reasonable inference that an offer to distribute to a group of persons has been made and that publication has occurred.
It may seem odd that allowing the whole world to view or hear a work does not constitute publication of a work, but the statutory definition is clear that the public performance or public display of a work does not, in and of itself, constitute publication. A mere display or performance is not a distribution, because the end user does not
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explicitly embraced the concept of divisibility of the exclusive rights of copyright when it enacted the 1976 Act. H.R. Rep. No. 94-1476, at 123 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5738-39.
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