US law provides copyright owners with a bundle of rights to protect their original works, including the exclusive right to publicly perform the copyrighted work. The question of what constitutes a public performance has become increasingly complicated in our digital world. Is the transmission of a copyrighted work via miniature antenna technology a performance broadcast to the public ? What factors guide this determination? The Supreme Court’s upcoming decision in American Broadcasting Companies, Inc. v. Aereo, Inc. could put to rest a decades-long dispute over the meaning of a “public performance,” creating a new landscape for over-the-air content providers, broadcasters, and viewers.
The Public Performance Right: Creation to Cablevision -
A copyright holder’s exclusive right “to perform the copyrighted work publicly” has become one of the most valuable of the bundle of rights associated with copyright ownership and its scope has expanded dramatically over time. When the public performance right was first added to the US copyright law in 1856, its application was fairly straightforward: Copyright holders were granted the exclusive right to perform dramatic works to the public for profit. Over the next 120 years, the “dramatic works” limitation was expanded and the profit requirement was dropped, broadening the public performance right.
Originally published in IP Litigator - March/April 2014.
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