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II. RIGHTS
With respect, I prefer and adopt the contrary views expressed by English, Indian, and Australian
authorities. ... They take a realistic view of the impact and effect of technological developments
and they are consistent with the plain and usual meaning of the words “in public”, that is to say
openly, without concealment and to the knowledge of all. ...
In [a 1925 Australian case, the court said]:
A performance ... is no less public because the listeners are unable to communicate
with one another or are not assembled within an enclosure or gathered together in
some open stadium or park or other public place. Nor can a performance ... be
deemed private because each listener may be alone in the privacy of his home. Radio-
broadcasting is intended and in fact does reach a very much larger number of the
public at the moment of the rendition than any other medium of performance.
This is certainly even truer of a transmission by means of television. ...
[T]he fact that the subscriber has to turn on the television set in no way alters the nature of the
transmission. The appellant is more than a mere facilitator of a public performance which
violates the Copyright Act; it is the actual performer through an innocent agent or with the
assistance of a third party who completes the final and missing link by turning on the television
set.
- A performance to persons, one at a time at different times,
may nevertheless be a public performance
More difficult questions arise where a performance occurs before a single
person at different times. An Australian court has held that a hotel’s provision to
guests of videocassettes or videodiscs of movies to view in their rooms causes
a public performance to occur. A U.S. court has, however, held the opposite.
Rank Film Ltd v. Dodds, (1983) 76 F.L.R. 351 (Australia: New South Wales
Supreme Court)
MR JUSTICE RATH:
[T]here is a market for the display of films in motel rooms. ...[A]lthough only one or two
persons saw the films, they did so as guests of the motel, that is to say, as members of a section
of the public. And though the performance was in private, it was arranged as part of a
commercial transaction. The performance could hardly be said to be a matter of family and
household concern only. The place was protected from public gaze, but it was after all a room in
a motel, not the home of the guest.
...[T]here is in this case an invitation to the public to watch in-house movies, and the provision
of such movies should be regarded as part of the consideration for the guests’ payment. ... [I]t
may be presumed that any respectable member of the public who was prepared to pay the price
charged by the defendants for a room might become a guest and look at the in-house movie. ...
It is not the restricted size of the audience, or the privacy of the surroundings, that is decisive on
the issue; the critical matter is the presentation of the movie by the occupier of the motel to his
guest in that capacity.
