These court decisions illustrate that you should look at the place where the performance occurs as a whole, not just at a particular room or space within a building when determining whether a performance is public. Stores, restaurants, and hotels (though not a particular room, once it is rented) are open to the general public or to a large number of people outside of one’s family and friends. They are public places, and performances that take place in these places are public performances.
Now let’s discuss libraries. You may contend that some libraries—those in private corporations or trade associations, for example—are not open to the public, and that in any case, performances to groups of employees or to board members are not public performances. You are correct. As noted earlier, the legislative history of the Copyright Act states that “[r]outine meetings of businesses and governmental personnel would be excluded because they do not represent the gathering or a ‘substantial number of persons.’”[1]
What about city or county public libraries, and public or private academic libraries? These certainly are places where a substantial number of persons outside of a normal family circle and its friends gather. According to the Act’s legislative history, Congress considers performances in these venues to be public performances: “[P]erformances in ‘semipublic places’ such as clubs, lodges, factories, summer camps, and schools are ‘public performances’ subject to copyright control.”[2]
Two questions come to mind. First, does a copyright owner’s public performance right prohibit a public library from showing an audiovisual work to large groups? To this question, we think the answer is yes. Unless otherwise permitted under the Copyright Act (fair use, for example, or under the section 110 exemptions, which are discussed below), a library cannot show audiovisual works to large groups. There is an alternative, of course: a public performance license.
Public performance licenses may be acquired from the copyright owner, or, more likely, from a distributor. Some distributors of educational films offer public performances licenses along with the DVDs. Many content producers also authorize the Motion Picture Licensing Corporation to convey umbrella public performance licenses to for-profit and non-
