AW: Re: DVD: public performance with an audience of only one person?

John Noble wrote:
> you can't infringe either the
> display right or the performance right by displaying a work to
> yourself or performing it without any audience at all.

John T. Mitchell wrote:
> The only type of performance that can ever be infringing is a public
> performance. Private performances are never infringing (U.S.
> copyright does not extend to them at all). So the key question is
> what makes a performance public.

I certainly agree that a license can only be issued where there is an exclusive right. However, a clear statement by the rightsholder may destroy the impression of an otherwise implied licence.

The definition of "publicly" in Section 101 CA also includes the notion of a "successive public": "to transmit or otherwise communicate a performance or display of the work [...] to the public, by means of any device or process,  whether the members of the public capable of receiving the performance or display receive it in he same place or in separate places and at the same time or at different times." This would mean that if the DVD (or other audiovisual file) is hosted on a server and streamed on demand to different client computers in an office network where the analysis is performed, it seems to be "public" because the showing of a movie to an audience of (numerous) employees in a work setting satisfies the notion of "publicly" (Section 101: "at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered"). However, when an individual DVD is handed out to one employee at the time, Section 109 seems to apply allowing the owner of a particular copy to lend it. The subsequent watching of the DVD by a single person can hardly be considered "public".

Interestingly, the Motion Picture Licensing Corporation is not all that clear in its "about copyright law"-section of its website:

"Pre-recorded home videocassettes and DVDs ("Videos") that are available for rental or purchase include the right to exhibit the movie for home use only. These motion pictures do not include a license for showing outside one's home. If you wish to show movies for any other use or in any other place, you must have a SEPARATE license which specifically authorizes such use."

John T. Mitchell wrote:
> In general, I favor a view that where the work being performed is
> merely incidental to the use (e.g., to demonstrate how well an image
> looks on a screen, or how well the sound comes through the speakers,
> or how clear the text is on a hand held book reader), then it is not
> "the work" that is being exploited for its creative value, but merely
> as representative of any work of similar characteristics and for
> purposes unrelated to the elements that made it copyrightable. In
> such cases, it should be fair use -- but I cannot case or statutory
> law authority for that view. Perhaps a few years from now.

This argument is familiar to the "one-use-input"-argument where a literary work is used for (automated) textual analysis and for this purpose is digitised (copied) (the discussion dates back to the 1960s, I don't know if there are cases that held this to be fair use).

Dominik P. Rubli, lic. iur. HSG
Rechtsanwalt/Attorney-At-Law
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Postfach 465/P.O. Box 465
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Schweiz/Switzerland
Tel. +41 (0)44 500 93 50
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mailto:drubli[_at_]rublilaw.com
www.rublilaw.com Received on Wed Sep 13 2006 - 00:55:00 GMT