Performance and Display: Libraries and Other Organizations

Two of the exclusive rights of the copyright holder are public performance and public display. To "perform" is defined in section 101 of the Copyright Act and means "to recite, render, play, dance or act it, either directly or by the means of any device or process, or in the case of a motion picture or other audiovisual work, to show its images in any sequence to make the sounds accompanying it audible." The same section defines display as "to show a copy of it, either directly 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." A public performance or display is any performance or display outside the normal circle of family and friends, any performance in a public place, or a performance or display that is transmitted. Private performances do not require permission of the copyright owner but public ones do. Transmitted performances or displays are still public, even though they are experienced at different times by people who are geographically dispersed.

There are statutory exceptions for some types of public performances that would otherwise require permission. There is an exception for nonprofit performances outside of the nonprofit educational setting. Section 110(4) of the Copyright Act provides that public performances of nondramatic literary and musical works (other than by transmission to the public) are excused if the following conditions are met. First, either there is no admission charge, or if there is one, proceeds go to charitable, religious, or educational purposes. Second, there is no payment of fees to promoters, organizers, or performers. Another exception, section 110(5), permits small establishments (including libraries) to play radio and television broadcasts on the equivalent of a "home receiving set." There must be no charge to see or hear the performance, however.

This chapter covers performances in public libraries, corporations, and nonprofit organizations. Nonprofit educational performances and displays are covered in chapter 6. Section 109(c) permits the display of lawfully made copies of works (projecting no more than one image at a time), but no transmission beyond the place where the copy is located. Libraries lend and play videos, music recordings, and mixed media works. Some lend playback equipment also. Questions in this chapter address displays of record album covers, book dust jackets, cartoons, and other images. Performance-related questions cover story hours for children where books are read aloud, playing background music to enliven the physical environment, and for-profit dance schools performing copyrighted music.

May a library book club show a commercial motion picture to its members and still comply with copyright?

Certainly it is possible for a library book club to view a movie together, but the viewing is a public performance. Therefore, the library must seek permission and pay performance royalties, if required. If the library acquired the public performance rights when it purchased the copy of the movie, however, then no further permission is required. But simply purchasing the movie on DVD does not typically provide the public performance rights.

A consortium of health facilities pools its money to purchase videos selected by members of the consortium. Each member contributes a fee depending on bed size. The videos are actually purchased by the library and added to its collection. These videos are then loaned to the members for viewing at their facility at no charge. Is there a copyright problem with this consortial activity?

There are several issues here. First, when the library purchases the videos are they licensed to one institution only? If so, then the videos can be used only within that one facility. If not, then lending the videos to other facilities is no problem. Of course, the videos cannot be duplicated, but the question does not appear to involve reproduction.

There are also performance rights issues involved, however. If the videos are used only for individual patient viewing in patients' rooms, there is no problem. If, however, the videos are shown to groups or in public areas, it is a public performance, and the library must obtain the public performance rights for the consortium.

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