The Public Display of Digital Library Collections

January 8, 2013
This Article evaluates the scope of the public display right in the context of digital library collections, and suggests an interpretation of the right that tries to make sense of the practical concerns that its drafters expressed when creating it. In short, the Article focuses on the sometimes-forgotten but important fact that the unauthorized display of copyrighted works is only an infringement of the copyright owner’s exclusive right if the work is displayed to “the public.” The Copyright Act nowhere defines the term “the public,” but viewed in light of its legislative history and interpretive guidance from the courts, this Article argues that the “public” part of “public display” can be read as meaning “the public market for copies” of the work. When a display does not impact the traditional public market for copies of the work—i.e., when one exploits copies at a level of use consistent with traditional uses like library lending, for example—there is no public display and therefore no infringement of the public display right.