Although it is not expressly stated in the statutory definition, the legislative history indicates that publication occurs only (i) when copies or phonorecords are distributed by or with the authority of the copyright owner, or (if) when an offer to distribute copies or phonorecords to a group of persons for further distribution, public performance, or public display is made by or with the authority of the copyright owner. For a definition and discussion of the terms "copies" and "phonorecords," see Chapter 300, Section 305.
Offering to distribute copies or phonorecords to a group of persons for further distribution, public performance, or public display without authorization does not constitute publication. Likewise, an unauthorized distribution of copies or phonorecords does not constitute publication. Instead it generally constitutes copyright infringement. See H.R. Rep. No. 94-1476, at 62 (1976), reprinted in 1976 U.S.C.C.A.N. at 5675-76 (explaining that Section 106(3) of the Copyright Act gives copyright owners "the right to control the first public distribution of an authorized copy or phonorecord of [the] work, whether by sale, gift, loan, or some rental or lease arrangement").
1903 The Significance of Publication
Publication is an important concept for works created or first published after January 1, 1978 for a number of reasons:
• If the work has been published, the date and nation of first publication should be provided in the application to register that work with the U.S. Copyright Office. See 17 U.S.C. § 409(8). For guidance in completing this portion of the application, see Chapter 600, Sections 612 and 617.
• The deposit requirements for registering a published work differ from the requirements for registering an unpublished work. For information concerning these requirements, see Chapter 1500, Sections 1503 and 1505.
• Works first published in the United States may be subject to mandatory deposit with the Library of Congress. For information concerning the mandatory deposit requirements, see Chapter 1500, Section 1511.
• The year of publication may determine the length of the copyright term for a work made for hire. For a definition and discussion of works made for hire, see Chapter 500, Section 506.
• The year of publication may determine the length of the copyright term for an anonymous work or a pseudonymous work, unless the author's identity is revealed in records maintained by the U.S. Copyright Office. For a definition and discussion of anonymous works and pseudonymous works, see Chapter 600, Sections 615.1 and 615.2.
• The year of publication may determine the length of the copyright term if the work was created before January 1, 1978, and was first published between January 1, 1978 and January 1, 2003. See 17 U.S.C. § 303(a).
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