Toward a Functional Definition of Publication in Copyright Law

The questions of whether, when, and where an author has published her work of authorship traditionally has given rise to, and continues to give rise to, numerous consequences, including the protectability of the work under U.S. copyright law; the running of various time periods, including a grace period for registering the copyright and the termination of copyright in works made for hire; the applicability of fair use and other exceptions to copyright liability; and the imposition of the duty to deposit two copies of the work with the Library of Congress. Although the 1976 Copyright Act, unlike its predecessors, includes a definition of publication, controversies continue to arise concerning the meaning of this term in new and different contexts - for example, whether an author\u27s posting of material on the Internet constitutes publication giving rise to all of the various rights and duties attendant thereto. In this article, I propose a redefinition of the term publication, consistent with the statutory definition, that reconciles some of the conflicting trends in the case law and attempts to resolve some current uncertainties