public displays and performances

From: <CNICOPY[_at_]charlie.usd.edu>
Date: Thu, 23 Sep 1993 14:20:31 -0500 (CDT)

Dan Lester said that he hoped a reasonable intelligent judge would allow the display in my example about a manual on a disk in and airport, and Marilyn Snow said the following:

>Mary Brandt Jensen said that displaying an electronic item,
>in the psecific case it was a manual, in a public place
>constituted public display. If the manual were always onlne
>in that place so anyone could see it, or if it were
>broadcast on a large screen, then it seems like public
>display. But it seems that the mere fact of reading the
>electronic manual in a public area doesn't automatically
>consitute public display any more than reading the book
>in a public area (which doesn't constitute public display).

>But them I'm not an attorney, only a librarian.

We can't count on what we think a reasonable or intelligent judge would do. Most of us may think few would disagree over this particular example, but pretty soon we are no longer all in agreement on what is reasonable. Many of us think the results in reached in the recent Lotus cases are not reasonable. Same thing for Texaco.

I never said the law or the definitions were reasonable. In fact my point is that if you apply the definitions as written in the law to electronic equivalents of printed materials you sometimes get some pretty unreasonable results. Part of the reason I used this example is I thought everyone would agree that it is reasonable to expect to be able to read an electronic version of a literary work on a laptop in a public place.

But the definition of a public display is as follows:

To "display" a work means to show a copy of it, either directly or indirectly or by means of a film, slide, television image, or any other device or process or, in the case of a motion picture or other audiovisual work, to show individual images nonsequentially. Sec. 101

The legislative history states that definition of a display would include "the projection of an image on a cathode ray tube, or similar viewing apparatus ..." House Report p 64

Thus displaying a literary work on a laptop display meets the current definition of a display in the copyright law.

It doesn't say the cathode ray tube has to be read or even readable by several people. And won't the quality of those displays improve a great deal in the not very distant future?

The definition of publicly means

"to perform or display it at a place open to the public "

or

"at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered."

The airport or the doctor's office waiting room or your office all meet this definition. It doesn't say that more than one person has to be viewing the display, only that it has to occur under one of the above conditions. In fact the recent cases concerning the viewing of videotapes by small groups of people in hotel rooms when controlled from the more public area of hotels indicates that it isn't the number of people watching that matters, but the character and possibilities of the place where the display occurs.

Now take a look at section 110 which is the general section on limitations on public displays and performances. Lots of accomodations are made for reasonable uses of audiovisual works and dramatic works which is what the drafters of the 76 act comtemplated when they thought of public performances and displays. But this section doesn't cover the electronic book in the airport or office example.

Mary Brandt Jensen       		CNICOPY[_at_]CHARLIE.USD.EDU
Professor of Law                        (605) 677 6363
University of South Dakota              (605) 677 6357 fax

School of Law
414 E. Clark St.
Vermillion, SD 57069-2390 Received on Thu Sep 23 1993 - 19:20:49 GMT