Copyright Publication on the Internet

44 Pages Posted: 28 Mar 2022

See all articles by Deborah R. Gerhardt

Deborah R. Gerhardt

University of North Carolina School of Law

Date Written: March 3, 2020


This Article tackles the question of when a work distributed over the Internet is published as a matter of copyright law. Copyright publication doctrine retains significant practical importance and can have a dispositive impact on the economic value of a work. Publication can also determine whether a court has jurisdiction over a copyright claim. For many twentieth century works, publication with observance of formalities was required if copyrights were to attach to creative works at all. Publication remains relevant in determining the length of copyright protection, but duration is far from the only copyright issue that turns on this concept. The federal Copyright Act repeatedly references publication for many other purposes. Year by year, works dependent on the publication doctrine for their duration are entering the public domain. As the works of the twentieth century enter the public domain, the issue of copyright publication will fade from importance for purposes of duration analysis, and the relative impact of the doctrine will be experienced more forcefully with respect to other issues. Therefore, it is time for research on the copyright publication doctrine to shift its focus from duration to other copyright issues.

Because so many works are distributed on the Internet, it is important to understand when such distribution constitutes publication. Unfortunately, copyright law can appear hopelessly unclear on this basic issue. The federal statutory definition of publication was enacted in 1976, before the Internet existed, and therefore does not address online distribution. The Copyright Office guidelines raise the question without answering it. Judicial efforts to clarify the issue are a mixed bag of conflicting interpretations. This piece provides needed clarity on the issue of when Internet distribution constitutes publication.

Keywords: copyright, publication, intellectual property

Suggested Citation

Gerhardt, Deborah R., Copyright Publication on the Internet (March 3, 2020). IDEA: The IP Law Review, Vol. 60, No. 1, 2020, Available at SSRN:

Deborah R. Gerhardt (Contact Author)

University of North Carolina School of Law ( email )

Van Hecke-Wettach Hall, 160 Ridge Road
CB #3380
Chapel Hill, NC 27599-3380
United States
919-962-7219 (Phone)
919-962-3375 (Fax)


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