§1 (2)
recitations, cinematograph shows, and all similar transitory representations of a work are not infringements of copyright where the entertainment is obviously domestic and private. In order to constitute a public performance there must be present members of the public admitted as such. Admission by payment is not the test of publicity or non-publicity. The performance of a dramatic or musical work may be gratuitous, and yet, if it is performed in the presence of members of the general public, it is a public performance. Where a dramatic piece was represented in a room in Guy's Hospital for the entertainment of the medical officers, nurses, students and attendants, and some of their friends, it was held that there was no infringement of performing right under the Dramatic Copyright Act, 1833[1]. The tests applied in that case are equally applicable to the new law in so far as the distinction between public and private representation is concerned.
Where the makers of cinematograph films exhibited them in thieir business premises to intending customers, it was held, under the Dramatic Copyright Act, 1833, that there was no performance in a place of dramatic entertainment within the meaning of that Act[2], and, similarly, such a representation would not be a public performance within the meaning of the new Act.
The exclusive right of representation in public is modified by the provisions of sect. 2 (1) (vi) relating to the reading or recitation in public by one person of any reasonable extract from a published work. Under sect. 3 (3), proceedings for infringement of performing right may be taken against any person who, for private profit, permits a theatre or other place of entertainment to be used for an unlawful performance.
"In the case of a lecture to deliver."The specific reference to the delivery of a lecture is inserted to make it clear that this is part of the author's copyright. As, however, this right would be included in the right to perform as that is now defined, it is a little out of place as part of the general definition. The reference to the right of delivering lectures would have come more appropriately among the