Except as otherwise provided in this title, as used in
this title, the following terms and their variant forms
mean the following:
An “anonymous work” is a work on the copies
or phonorecords of which no natural person is identified
as author.
An “architectural work” is the design of a
building as embodied in any tangible medium of expression,
including a building, architectural plans, or drawings.
The work includes the overall form as well as the arrangement
and composition of spaces and elements in the design, but
does not include individual standard features.3
”Audiovisual works” are works that consist
of a series of related images which are intrinsically
intended to be shown by the use of machines or devices such
as projectors, viewers, or electronic equipment, together
with accompanying sounds, if any, regardless of the nature
of the material objects, such as films or tapes, in which
the works are embodied.
The “Berne Convention” is the Convention for
the Protection of Literary and Artistic Works, signed at
Berne, Switzerland, on September 9, 1886, and all acts,
protocols, and revisions thereto.4
The “best edition” of a work is the edition,
published in the United States at any time before the date
of deposit, that the Library of Congress determines to be
most suitable for its purposes.
A person's “children” are that person's immediate
offspring, whether legitimate or not, and any children legally
adopted by that person.
A “collective work” is a work, such as a periodical
issue, anthology, or encyclopedia, in which a number of
contributions, constituting separate and independent works
in themselves, are assembled into a collective whole.
A “compilation” is a work formed by the collection
and assembling of preexisting materials or of data that
are selected, coordinated, or arranged in such a way that
the resulting work as a whole constitutes an original work
of authorship. The term “compilation” includes
collective works.
A “computer program” is a set of statements
or instructions to be used directly or indirectly in a computer
in order to bring about a certain result.5
”Copies” are material objects, other than phonorecords,
in which a work is fixed by any method now known or later
developed, and from which the work can be perceived, reproduced,
or otherwise communicated, either directly or with the aid
of a machine or device. The term “copies” includes
the material object, other than a phonorecord, in which
the work is first fixed.
”Copyright owner”, with respect to any one
of the exclusive rights comprised in a copyright, refers
to the owner of that particular right.
A work is “created” when it is fixed in a copy
or phonorecord for the first time; where a work is prepared
over a period of time, the portion of it that has been fixed
at any particular time constitutes the work as of that time,
and where the work has been prepared in different versions,
each version constitutes a separate work.
A “derivative work” is a work based upon one
or more preexisting works, such as a translation, musical
arrangement, dramatization, fictionalization, motion picture
version, sound recording, art reproduction, abridgment,
condensation, or any other form in which a work may be recast,
transformed, or adapted. A work consisting of editorial
revisions, annotations, elaborations, or other modifications,
which, as a whole, represent an original work of authorship,
is a “derivative work”.
A “device”, “machine”, or “process”
is one now known or later developed.
A “digital transmission” is a transmission
in whole or in part in a digital or other non-analog format.6
To “display” a work means 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.
An “establishment” is a store, shop, or any
similar place of business open to the general public for
the primary purpose of selling goods or services in which
the majority of the gross square feet of space that is nonresidential
is used for that purpose, and in which nondramatic musical
works are performed publicly.7
A “food service or drinking establishment”
is a restaurant, inn, bar, tavern, or any other similar
place of business in which the public or patrons assemble
for the primary purpose of being served food or drink, in
which the majority of the gross square feet of space that
is nonresidential is used for that purpose, and in which
nondramatic musical works are performed publicly.8
The term “financial gain” includes receipt,
or expectation of receipt, of anything of value, including
the receipt of other copyrighted works.9
A work is “fixed” in a tangible medium of expression
when its embodiment in a copy or phonorecord, by or under
the authority of the author, is sufficiently permanent or
stable to permit it to be perceived, reproduced, or otherwise
communicated for a period of more than transitory duration.
A work consisting of sounds, images, or both, that are being
transmitted, is “fixed” for purposes of this
title if a fixation of the work is being made simultaneously
with its transmission.
The “Geneva Phonograms Convention” is the Convention
for the Protection of Producers of Phonograms Against Unauthorized
Duplication of Their Phonograms, concluded at Geneva, Switzerland,
on October 29, 1971.10
The “gross square feet of space” of an establishment
means the entire interior space of that establishment, and
any adjoining outdoor space used to serve patrons, whether
on a seasonal basis or otherwise.11
The terms “including” and “such as”
are illustrative and not limitative.
A “joint work” is a work prepared by two or
more authors with the intention that their contributions
be merged into inseparable or interdependent parts of a
unitary whole.
”Literary works” are works, other than audiovisual
works, expressed in words, numbers, or other verbal or numerical
symbols or indicia, regardless of the nature of the material
objects, such as books, periodicals, manuscripts, phonorecords,
film, tapes, disks, or cards, in which they are embodied.
”Motion pictures” are audiovisual works consisting
of a series of related images which, when shown in succession,
impart an impression of motion, together with accompanying
sounds, if any.
To “perform” a work means to recite, render,
play, dance, or act it, either directly or by 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
or to make the sounds accompanying it audible.
A “performing rights society” is an association,
corporation, or other entity that licenses the public performance
of nondramatic musical works on behalf of copyright owners
of such works, such as the American Society of Composers,
Authors and Publishers (ASCAP), Broadcast Music, Inc. (BMI),
and SESAC, Inc.15
”Phonorecords” are material objects in which
sounds, other than those accompanying a motion picture or
other audiovisual work, are fixed by any method now known
or later developed, and from which the sounds can be perceived,
reproduced, or otherwise communicated, either directly or
with the aid of a machine or device. The term “phonorecords”
includes the material object in which the sounds are first
fixed.
”Pictorial, graphic, and sculptural works”
include two-dimensional and three-dimensional works of fine,
graphic, and applied art, photographs, prints and art reproductions,
maps, globes, charts, diagrams, models, and technical drawings,
including architectural plans. Such works shall include
works of artistic craftsmanship insofar as their form but
not their mechanical or utilitarian aspects are concerned;
the design of a useful article, as defined in this section,
shall be considered a pictorial, graphic, or sculptural
work only if, and only to the extent that, such design incorporates
pictorial, graphic, or sculptural features that can be identified
separately from, and are capable of existing independently
of, the utilitarian aspects of the article.16
A “pseudonymous work” is a work on the copies
or phonorecords of which the author is identified under
a fictitious name.
”Publication” is the distribution of copies
or phonorecords of a work to the public by sale or other
transfer of ownership, or by rental, lease, or lending.
The offering to distribute copies or phonorecords to a group
of persons for purposes of further distribution, public
performance, or public display, constitutes publication.
A public performance or display of a work does not of itself
constitute publication.
(1) to perform or display it at a place open to the public
or at any place where a substantial number of persons outside
of a normal circle of a family and its social acquaintances
is gathered; or
(2) to transmit or otherwise communicate a performance
or display of the work to a place specified by clause (1)
or to the public, by means of any device or process, whether
the members of the public capable of receiving the performance
or display receive it in the same place or in separate places
and at the same time or at different times.
”Sound recordings” are works that result from
the fixation of a series of musical, spoken, or other sounds,
but not including the sounds accompanying a motion picture
or other audiovisual work, regardless of the nature of the
material objects, such as disks, tapes, or other phonorecords,
in which they are embodied.
”State” includes the District of Columbia and
the Commonwealth of Puerto Rico, and any territories to
which this title is made applicable by an Act of Congress.
A “transfer of copyright ownership” is an assignment,
mortgage, exclusive license, or any other conveyance, alienation,
or hypothecation of a copyright or of any of the exclusive
rights comprised in a copyright, whether or not it is limited
in time or place of effect, but not including a nonexclusive
license.
A “transmission program” is a body of material
that, as an aggregate, has been produced for the sole purpose
of transmission to the public in sequence and as a unit.
To “transmit” a performance or display is to
communicate it by any device or process whereby images or
sounds are received beyond the place from which they are
sent.
A “treaty party” is a country or intergovernmental
organization other than the United States that is a party
to an international agreement.19
The “United States”, when used in a geographical
sense, comprises the several States, the District of Columbia
and the Commonwealth of Puerto Rico, and the organized territories
under the jurisdiction of the United States Government.
(B) simultaneously in the United States and another treaty
party or parties, whose law grants a term of copyright protection
that is the same as or longer than the term provided in
the United States;
(C) simultaneously in the United States and a foreign nation
that is not a treaty party; or
(D) in a foreign nation that is not a treaty party, and
all of the authors of the work are nationals, domiciliaries,
or habitual residents of, or in the case of an audiovisual
work legal entities with headquarters in, the United States;
(2) in the case of an unpublished work, all the authors
of the work are nationals, domiciliaries, or habitual residents
of the United States, or, in the case of an unpublished
audiovisual work, all the authors are legal entities with
headquarters in the United States; or
(3) in the case of a pictorial, graphic, or sculptural
work incorporated in a building or structure, the building
or structure is located in the United States.19
A “useful article” is an article having an
intrinsic utilitarian function that is not merely to portray
the appearance of the article or to convey information.
An article that is normally a part of a useful article is
considered a “useful article”.
The author's “widow” or “widower”
is the author's surviving spouse under the law of the author's
domicile at the time of his or her death, whether or not
the spouse has later remarried.
The “WIPO Copyright Treaty” is the WIPO Copyright
Treaty concluded at Geneva, Switzerland, on December 20,
1996.21
The “WIPO Performances and Phonograms Treaty”
is the WIPO Performances and Phonograms Treaty concluded
at Geneva, Switzerland, on December 20, 1996.22
(1) a painting, drawing, print or sculpture, existing in
a single copy, in a limited edition of 200 copies or fewer
that are signed and consecutively numbered by the author,
or, in the case of a sculpture, in multiple cast, carved,
or fabricated sculptures of 200 or fewer that are consecutively
numbered by the author and bear the signature or other identifying
mark of the author; or
(2) a still photographic image produced for exhibition
purposes only, existing in a single copy that is signed
by the author, or in a limited edition of 200 copies or
fewer that are signed and consecutively numbered by the
author.
(A)(i) any poster, map, globe, chart, technical drawing,
diagram, model, applied art, motion picture or other audiovisual
work, book, magazine, newspaper, periodical, data base,
electronic information service, electronic publication,
or similar publication;
(ii) any merchandising item or advertising, promotional,
descriptive, covering, or packaging material or container;
A “work of the United States Government” is
a work prepared by an officer or employee of the United
States Government as part of that person's official duties.
(1) a work prepared by an employee within the scope of
his or her employment; or
(2) a work specially ordered or commissioned for use as
a contribution to a collective work, as a part of a motion
picture or other audiovisual work, as a translation, as
a supplementary work, as a compilation, as an instructional
text, as a test, as answer material for a test, or as an
atlas, if the parties expressly agree in a written instrument
signed by them that the work shall be considered a work
made for hire. For the purpose of the foregoing sentence,
a “supplementary work” is a work prepared for
publication as a secondary adjunct to a work by another
author for the purpose of introducing, concluding, illustrating,
explaining, revising, commenting upon, or assisting in the
use of the other work, such as forewords, afterwords, pictorial
illustrations, maps, charts, tables, editorial notes, musical
arrangements, answer material for tests, bibliographies,
appendixes, and indexes, and an “instructional text”
is a literary, pictorial, or graphic work prepared for publication
and with the purpose of use in systematic instructional
activities.
In determining whether any work is eligible to be considered
a work made for hire under paragraph (2), neither the amendment
contained in section 1011(d) of the Intellectual Property
and Communications Omnibus Reform Act of 1999, as enacted
by section 1000(a)(9) of Public Law 106-113, nor the deletion
of the words added by that amendment —
(B) shall be interpreted to indicate congressional approval
or disapproval of, or acquiescence in, any judicial determination,
by the courts or the Copyright Office. Paragraph (2) shall
be interpreted as if both section 2(a)(1) of the Work Made
For Hire and Copyright Corrections Act of 2000 and section
1011(d) of the Intellectual Property and Communications
Omnibus Reform Act of 1999, as enacted by section 1000(a)(9)
of Public Law 106-113, were never enacted, and without regard
to any inaction or awareness by the Congress at any time
of any judicial determinations.24
The terms “WTO Agreement” and “WTO
member country” have the meanings given those terms
in paragraphs (9) and (10), respectively, of section 2
of the Uruguay Round Agreements Act.24
§ 102. Subject matter of copyright:
In general26
(a) Copyright protection subsists, in accordance with
this title, in original works of authorship fixed in any
tangible medium of expression, now known or later developed,
from which they can be perceived, reproduced, or otherwise
communicated, either directly or with the aid of a machine
or device. Works of authorship include the following categories:
(1) literary works;
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8) architectural works.
(b) In no case does copyright protection for an original
work of authorship extend to any idea, procedure, process,
system, method of operation, concept, principle, or discovery,
regardless of the form in which it is described, explained,
illustrated, or embodied in such work.
§ 103. Subject matter of copyright:
Compilations and derivative works
(a) The subject matter of copyright as specified by section
102 includes compilations and derivative works, but
protection for a work employing preexisting material in
which copyright subsists does not extend to any part of
the work in which such material has been used unlawfully.
(b) The copyright in a compilation or derivative work
extends only to the material contributed by the author
of such work, as distinguished from the preexisting material
employed in the work, and does not imply any exclusive
right in the preexisting material. The copyright in such
work is independent of, and does not affect or enlarge
the scope, duration, ownership, or subsistence of, any
copyright protection in the preexisting material.
§ 104. Subject matter of copyright:
National origin27
(a) Unpublished Works. — The
works specified by sections
102 and 103, while
unpublished, are subject to protection under this title
without regard to the nationality or domicile of the author.
(b) Published Works. — The
works specified by sections
102 and 103, when published,
are subject to protection under this title if —
(1) on the date of first publication, one or more of
the authors is a national or domiciliary of the United
States, or is a national, domiciliary, or sovereign authority
of a treaty party, or is a stateless person, wherever
that person may be domiciled; or
(2) the work is first published in the United States
or in a foreign nation that, on the date of first publication,
is a treaty party; or
(3) the work is a sound recording that was first fixed
in a treaty party; or
(4) the work is a pictorial, graphic, or sculptural work
that is incorporated in a building or other structure,
or an architectural work that is embodied in a building
and the building or structure is located in the United
States or a treaty party; or
(5) the work is first published by the United Nations
or any of its specialized agencies, or by the Organization
of American States; or
(6) the work comes within the scope of a Presidential
proclamation. Whenever the President finds that a particular
foreign nation extends, to works by authors who are nationals
or domiciliaries of the United States or to works that
are first published in the United States, copyright protection
on substantially the same basis as that on which the foreign
nation extends protection to works of its own nationals
and domiciliaries and works first published in that nation,
the President may by proclamation extend protection under
this title to works of which one or more of the authors
is, on the date of first publication, a national, domiciliary,
or sovereign authority of that nation, or which was first
published in that nation. The President may revise, suspend,
or revoke any such proclamation or impose any conditions
or limitations on protection under a proclamation.
For purposes of paragraph (2), a work that is published
in the United States or a treaty party within 30 days
after publication in a foreign nation that is not a treaty
party shall be considered to be first published in the
United States or such treaty party, as the case may be.
(c) Effect of Berne Convention. — No
right or interest in a work eligible for protection under
this title may be claimed by virtue of, or in reliance
upon, the provisions of the Berne Convention, or the adherence
of the United States thereto. Any rights in a work eligible
for protection under this title that derive from this
title, other Federal or State statutes, or the common
law, shall not be expanded or reduced by virtue of, or
in reliance upon, the provisions of the Berne Convention,
or the adherence of the United States thereto.
(d) Effect of Phonograms Treaties. — Notwithstanding
the provisions of subsection (b), no works other than
sound recordings shall be eligible for protection under
this title solely by virtue of the adherence of the United
States to the Geneva Phonograms Convention or the WIPO
Performances and Phonograms Treaty.28
§ 104A. Copyright in restored works29
(a) Automatic Protection and Term. —
(1) Term. —
(A) Copyright subsists, in accordance with this section,
in restored works, and vests automatically on the date
of restoration.
(B) Any work in which copyright is restored under this
section shall subsist for the remainder of the term of
copyright that the work would have otherwise been granted
in the United States if the work never entered the public
domain in the United States.
(2) Exception. — Any work
in which the copyright was ever owned or administered
by the Alien Property Custodian and in which the restored
copyright would be owned by a government or instrumentality
thereof, is not a restored work.
(b) Ownership of Restored Copyright. — A
restored work vests initially in the author or initial
rightholder of the work as determined by the law of the
source country of the work.
(c) Filing of Notice of Intent to Enforce Restored
Copyright Against Reliance Parties. — On
or after the date of restoration, any person who owns
a copyright in a restored work or an exclusive right therein
may file with the Copyright Office a notice of intent
to enforce that person's copyright or exclusive right
or may serve such a notice directly on a reliance party.
Acceptance of a notice by the Copyright Office is effective
as to any reliance parties but shall not create a presumption
of the validity of any of the facts stated therein. Service
on a reliance party is effective as to that reliance party
and any other reliance parties with actual knowledge of
such service and of the contents of that notice.
(d) Remedies for Infringement of Restored Copyrights. —
(1) Enforcement of copyright in restored works
in the absence of a reliance party. — As
against any party who is not a reliance party, the remedies
provided in chapter 5 of this
title shall be available on or after the date of restoration
of a restored copyright with respect to an act of infringement
of the restored copyright that is commenced on or after
the date of restoration.
(2) Enforcement of copyright in restored works
as against reliance parties. — As
against a reliance party, except to the extent provided
in paragraphs (3) and (4), the remedies provided in chapter
5 of this title shall be available, with respect to
an act of infringement of a restored copyright, on or
after the date of restoration of the restored copyright
if the requirements of either of the following subparagraphs
are met:
(A)(i) The owner of the restored copyright (or such owner's
agent) or the owner of an exclusive right therein (or
such owner's agent) files with the Copyright Office, during
the 24-month period beginning on the date of restoration,
a notice of intent to enforce the restored copyright;
and
(ii)(I) the act of infringement commenced after the end
of the 12-month period beginning on the date of publication
of the notice in the Federal Register;
(II) the act of infringement commenced before the end
of the 12-month period described in subclause (I) and
continued after the end of that 12-month period, in which
case remedies shall be available only for infringement
occurring after the end of that 12-month period; or
(III) copies or phonorecords of a work in which copyright
has been restored under this section are made after publication
of the notice of intent in the Federal Register.
(B)(i) The owner of the restored copyright (or such owner's
agent) or the owner of an exclusive right therein (or
such owner's agent) serves upon a reliance party a notice
of intent to enforce a restored copyright; and
(ii)(I) the act of infringement commenced after the end
of the 12-month period beginning on the date the notice
of intent is received;
(II) the act of infringement commenced before the end
of the 12-month period described in subclause (I) and
continued after the end of that 12-month period, in which
case remedies shall be available only for the infringement
occurring after the end of that 12-month period; or
(III) copies or phonorecords of a work in which copyright
has been restored under this section are made after receipt
of the notice of intent.
In the event that notice is provided under both subparagraphs
(A) and (B), the 12-month period referred to in such subparagraphs
shall run from the earlier of publication or service of
notice.
(3) Existing derivative works. —
(A) In the case of a derivative work that is based upon
a restored work and is created —
(i) before the date of the enactment of the Uruguay Round
Agreements Act, if the source country of the restored
work is an eligible country on such date, or
(ii) before the date on which the source country of the
restored work becomes an eligible country, if that country
is not an eligible country on such date of enactment,
a reliance party may continue to exploit that derivative
work for the duration of the restored copyright if the
reliance party pays to the owner of the restored copyright
reasonable compensation for conduct which would be subject
to a remedy for infringement but for the provisions of
this paragraph.
(B) In the absence of an agreement between the parties,
the amount of such compensation shall be determined by
an action in United States district court, and shall reflect
any harm to the actual or potential market for or value
of the restored work from the reliance party's continued
exploitation of the work, as well as compensation for
the relative contributions of expression of the author
of the restored work and the reliance party to the derivative
work.
(4) Commencement of infringement for reliance parties. — For
purposes of section 412,
in the case of reliance parties, infringement shall be
deemed to have commenced before registration when acts
which would have constituted infringement had the restored
work been subject to copyright were commenced before the
date of restoration.
(e) Notices of Intent to Enforce a Restored Copyright. —
(1) Notices of intent filed with the copyright
office. —
(A)(i) A notice of intent filed with the Copyright Office
to enforce a restored copyright shall be signed by the
owner of the restored copyright or the owner of an exclusive
right therein, who files the notice under subsection (d)(2)(A)(i)
(hereafter in this paragraph referred to as the “owner”),
or by the owner's agent, shall identify the title of the
restored work, and shall include an English translation
of the title and any other alternative titles known to
the owner by which the restored work may be identified,
and an address and telephone number at which the owner
may be contacted. If the notice is signed by an agent,
the agency relationship must have been constituted in
a writing signed by the owner before the filing of the
notice. The Copyright Office may specifically require
in regulations other information to be included in the
notice, but failure to provide such other information
shall not invalidate the notice or be a basis for refusal
to list the restored work in the Federal Register.
(ii)If a work in which copyright is restored has no formal
title, it shall be described in the notice of intent in
detail sufficient to identify it.
(iii) Minor errors or omissions may be corrected by further
notice at any time after the notice of intent is filed.
Notices of corrections for such minor errors or omissions
shall be accepted after the period established in subsection
(d)(2)(A)(i). Notices shall be published in the Federal
Register pursuant to subparagraph (B).
(B)(i) The Register of Copyrights shall publish in the
Federal Register, commencing not later than 4 months after
the date of restoration for a particular nation and every
4 months thereafter for a period of 2 years, lists identifying
restored works and the ownership thereof if a notice of
intent to enforce a restored copyright has been filed.
(ii) Not less than 1 list containing all notices of intent
to enforce shall be maintained in the Public Information
Office of the Copyright Office and shall be available
for public inspection and copying during regular business
hours pursuant to sections
705 and 708.
(C) The Register of Copyrights is authorized to fix reasonable
fees based on the costs of receipt, processing, recording,
and publication of notices of intent to enforce a restored
copyright and corrections thereto.
(D)(i) Not later than 90 days before the date the Agreement
on Trade-Related Aspects of Intellectual Property referred
to in section 101(d)(15) of the Uruguay Round Agreements
Act enters into force with respect to the United States,
the Copyright Office shall issue and publish in the Federal
Register regulations governing the filing under this subsection
of notices of intent to enforce a restored copyright.
(ii) Such regulations shall permit owners of restored
copyrights to file simultaneously for registration of
the restored copyright.
(2) Notices of intent served on a reliance party. —
(A) Notices of intent to enforce a restored copyright
may be served on a reliance party at any time after the
date of restoration of the restored copyright.
(B) Notices of intent to enforce a restored copyright
served on a reliance party shall be signed by the owner
or the owner's agent, shall identify the restored work
and the work in which the restored work is used, if any,
in detail sufficient to identify them, and shall include
an English translation of the title, any other alternative
titles known to the owner by which the work may be identified,
the use or uses to which the owner objects, and an address
and telephone number at which the reliance party may contact
the owner. If the notice is signed by an agent, the agency
relationship must have been constituted in writing and
signed by the owner before service of the notice.
(3) Effect of material false statements. — Any
material false statement knowingly made with respect to
any restored copyright identified in any notice of intent
shall make void all claims and assertions made with respect
to such restored copyright.
(f) Immunity from Warranty and Related Liability. —
(1) In general. — Any person
who warrants, promises, or guarantees that a work does
not violate an exclusive right granted in section
106 shall not be liable for legal, equitable, arbitral,
or administrative relief if the warranty, promise, or
guarantee is breached by virtue of the restoration of
copyright under this section, if such warranty, promise,
or guarantee is made before January 1, 1995.
(2) Performances. — No person
shall be required to perform any act if such performance
is made infringing by virtue of the restoration of copyright
under the provisions of this section, if the obligation
to perform was undertaken before January 1, 1995.
(g) Proclamation of Copyright Restoration. — Whenever
the President finds that a particular foreign nation extends,
to works by authors who are nationals or domiciliaries
of the United States, restored copyright protection on
substantially the same basis as provided under this section,
the President may by proclamation extend restored protection
provided under this section to any work —
(1) of which one or more of the authors is, on the date
of first publication, a national, domiciliary, or sovereign
authority of that nation; or
(2) which was first published in that nation.
The President may revise, suspend, or revoke any such
proclamation or impose any conditions or limitations on
protection under such a proclamation.
(h) Definitions. — For purposes
of this section and section
109(a):
(1) The term “date of adherence or proclamation”
means the earlier of the date on which a foreign nation
which, as of the date the WTO Agreement enters into force
with respect to the United States, is not a nation adhering
to the Berne Convention or a WTO member country, becomes —
(A) a nation adhering to the Berne Convention;
(B) a WTO member country;
(C) a nation adhering to the WIPO Copyright Treaty;30
(D) a nation adhering to the WIPO Performances and Phonograms
Treaty;31 or
(E) subject to a Presidential proclamation under subsection
(g).
(2) The “date of restoration” of a restored
copyright is —
(A) January 1, 1996, if the source country of the restored
work is a nation adhering to the Berne Convention or a
WTO member country on such date, or
(B) the date of adherence or proclamation, in the case
of any other source country of the restored work.
(3) The term “eligible country” means a nation,
other than the United States, that —
(A) becomes a WTO member country after the date of the
enactment of the Uruguay Round Agreements Act;
(B) on such date of enactment is, or after such date
of enactment becomes, a nation adhering to the Berne Convention;
(C) adheres to the WIPO Copyright Treaty;32
(D) adheres to the WIPO Performances and Phonograms Treaty;33
or
(E) after such date of enactment becomes subject to a
proclamation under subsection (g).
(4) The term “reliance party” means any person
who —
(A) with respect to a particular work, engages in acts,
before the source country of that work becomes an eligible
country, which would have violated section
106 if the restored work had been subject to copyright
protection, and who, after the source country becomes
an eligible country, continues to engage in such acts;
(B) before the source country of a particular work becomes
an eligible country, makes or acquires 1 or more copies
or phonorecords of that work; or
(C) as the result of the sale or other disposition of
a derivative work covered under subsection (d)(3), or
significant assets of a person described in subparagraph
(A) or (B), is a successor, assignee, or licensee of that
person.
(5) The term “restored copyright” means copyright
in a restored work under this section.
(6) The term “restored work” means an original
work of authorship that —
(A) is protected under subsection (a);
(B) is not in the public domain in its source country
through expiration of term of protection;
(C) is in the public domain in the United States due
to —
(i) noncompliance with formalities imposed at any time
by United States copyright law, including failure of renewal,
lack of proper notice, or failure to comply with any manufacturing
requirements;
(ii) lack of subject matter protection in the case of
sound recordings fixed before February 15, 1972; or
(iii) lack of national eligibility;
(D) has at least one author or rightholder who was, at
the time the work was created, a national or domiciliary
of an eligible country, and if published, was first published
in an eligible country and not published in the United
States during the 30-day period following publication
in such eligible country; and
(E) if the source country for the work is an eligible
country solely by virtue of its adherence to the WIPO
Performances and Phonograms Treaty, is a sound recording.34
(7) The term “rightholder” means the person —
(A) who, with respect to a sound recording, first fixes
a sound recording with authorization, or
(B) who has acquired rights from the person described
in subparagraph (A) by means of any conveyance or by operation
of law.
(8) The “source country” of a restored work
is —
(A) a nation other than the United States;
(B) in the case of an unpublished work —
(i) the eligible country in which the author or rightholder
is a national or domiciliary, or, if a restored work has
more than 1 author or rightholder, of which the majority
of foreign authors or rightholders are nationals or domiciliaries;
or
(ii) if the majority of authors or rightholders are not
foreign, the nation other than the United States which
has the most significant contacts with the work; and
(C) in the case of a published work —
(i) the eligible country in which the work is first published,
or
(ii) if the restored work is published on the same day
in 2 or more eligible countries, the eligible country
which has the most significant contacts with the work.
§ 105. Subject matter of copyright:
United States Government works35
Copyright protection under this title is not available
for any work of the United States Government, but the
United States Government is not precluded from receiving
and holding copyrights transferred to it by assignment,
bequest, or otherwise.
§ 106. Exclusive rights in copyrighted
works36
Subject to sections 107 through
122, the owner of copyright under this title has the
exclusive rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted
work;
(3) to distribute copies or phonorecords of the copyrighted
work to the public by sale or other transfer of ownership,
or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic
works, pantomimes, and motion pictures and other audiovisual
works, to perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and choreographic
works, pantomimes, and pictorial, graphic, or sculptural
works, including the individual images of a motion picture
or other audiovisual work, to display the copyrighted
work publicly; and
(6) in the case of sound recordings, to perform the copyrighted
work publicly by means of a digital audio transmission.
§ 106A. Rights of certain authors
to attribution and integrity37
(a) Rights of Attribution and Integrity. — Subject
to section 107 and independent
of the exclusive rights provided in section
106, the author of a work of visual art —
(1) shall have the right —
(A) to claim authorship of that work, and
(B) to prevent the use of his or her name as the author
of any work of visual art which he or she did not create;
(2) shall have the right to prevent the use of his or
her name as the author of the work of visual art in the
event of a distortion, mutilation, or other modification
of the work which would be prejudicial to his or her honor
or reputation; and
(3) subject to the limitations set forth in section
113(d), shall have the right —
(A) to prevent any intentional distortion, mutilation,
or other modification of that work which would be prejudicial
to his or her honor or reputation, and any intentional
distortion, mutilation, or modification of that work is
a violation of that right, and
(B) to prevent any destruction of a work of recognized
stature, and any intentional or grossly negligent destruction
of that work is a violation of that right.
(b) Scope and Exercise of Rights. — Only
the author of a work of visual art has the rights conferred
by subsection (a) in that work, whether or not the author
is the copyright owner. The authors of a joint work of
visual art are coowners of the rights conferred by subsection
(a) in that work.
(c) Exceptions. — (1) The
modification of a work of visual art which is the result
of the passage of time or the inherent nature of the materials
is not a distortion, mutilation, or other modification
described in subsection (a)(3)(A).
(2) The modification of a work of visual art which is
the result of conservation, or of the public presentation,
including lighting and placement, of the work is not a
destruction, distortion, mutilation, or other modification
described in subsection (a)(3) unless the modification
is caused by gross negligence.
(3) The rights described in paragraphs (1) and (2) of
subsection (a) shall not apply to any reproduction, depiction,
portrayal, or other use of a work in, upon, or in any
connection with any item described in subparagraph (A)
or (B) of the definition of “work of visual art”
in section 101, and any
such reproduction, depiction, portrayal, or other use
of a work is not a destruction, distortion, mutilation,
or other modification described in paragraph (3) of subsection
(a).
(d) Duration of Rights. — (1)
With respect to works of visual art created on or after
the effective date set forth in section 610(a) of the
Visual Artists Rights Act of 1990, the rights conferred
by subsection (a) shall endure for a term consisting of
the life of the author.
(2) With respect to works of visual art created before
the effective date set forth in section 610(a) of the
Visual Artists Rights Act of 1990, but title to which
has not, as of such effective date, been transferred from
the author, the rights conferred by subsection (a) shall
be coextensive with, and shall expire at the same time
as, the rights conferred by section
106.
(3) In the case of a joint work prepared by two or more
authors, the rights conferred by subsection (a) shall
endure for a term consisting of the life of the last surviving
author.
(4) All terms of the rights conferred by subsection (a)
run to the end of the calendar year in which they would
otherwise expire.
(e) Transfer and Waiver. — (1)
The rights conferred by subsection (a) may not be transferred,
but those rights may be waived if the author expressly
agrees to such waiver in a written instrument signed by
the author. Such instrument shall specifically identify
the work, and uses of that work, to which the waiver applies,
and the waiver shall apply only to the work and uses so
identified. In the case of a joint work prepared by two
or more authors, a waiver of rights under this paragraph
made by one such author waives such rights for all such
authors.
(2) Ownership of the rights conferred by subsection (a)
with respect to a work of visual art is distinct from
ownership of any copy of that work, or of a copyright
or any exclusive right under a copyright in that work.
Transfer of ownership of any copy of a work of visual
art, or of a copyright or any exclusive right under a
copyright, shall not constitute a waiver of the rights
conferred by subsection (a). Except as may otherwise be
agreed by the author in a written instrument signed by
the author, a waiver of the rights conferred by subsection
(a) with respect to a work of visual art shall not constitute
a transfer of ownership of any copy of that work, or of
ownership of a copyright or of any exclusive right under
a copyright in that work.
§ 107. Limitations on exclusive rights:
Fair use38
Notwithstanding the provisions of sections
106 and 106A, the
fair use of a copyrighted work, including such use by
reproduction in copies or phonorecords or by any other
means specified by that section, for purposes such as
criticism, comment, news reporting, teaching (including
multiple copies for classroom use), scholarship, or research,
is not an infringement of copyright. In determining whether
the use made of a work in any particular case is a fair
use the factors to be considered shall include —
(1) the purpose and character of the use, including whether
such use is of a commercial nature or is for nonprofit
educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used
in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for
or value of the copyrighted work.
The fact that a work is unpublished shall not itself
bar a finding of fair use if such finding is made upon
consideration of all the above factors.
§ 108. Limitations on exclusive rights:
Reproduction by libraries and archives39
(a) Except as otherwise provided in this title and notwithstanding
the provisions of section 106,
it is not an infringement of copyright for a library or
archives, or any of its employees acting within the scope
of their employment, to reproduce no more than one copy
or phonorecord of a work, except as provided in subsections
(b) and (c), or to distribute such copy or phonorecord,
under the conditions specified by this section, if —
(1) the reproduction or distribution is made without
any purpose of direct or indirect commercial advantage;
(2) the collections of the library or archives are (i)
open to the public, or (ii) available not only to researchers
affiliated with the library or archives or with the institution
of which it is a part, but also to other persons doing
research in a specialized field; and
(3) the reproduction or distribution of the work includes
a notice of copyright that appears on the copy or phonorecord
that is reproduced under the provisions of this section,
or includes a legend stating that the work may be protected
by copyright if no such notice can be found on the copy
or phonorecord that is reproduced under the provisions
of this section.
(b) The rights of reproduction and distribution under
this section apply to three copies or phonorecords of
an unpublished work duplicated solely for purposes of
preservation and security or for deposit for research
use in another library or archives of the type described
by clause (2) of subsection (a), if —
(1) the copy or phonorecord reproduced is currently in
the collections of the library or archives; and
(2) any such copy or phonorecord that is reproduced in
digital format is not otherwise distributed in that format
and is not made available to the public in that format
outside the premises of the library or archives.
(c) The right of reproduction under this section applies
to three copies or phonorecords of a published work duplicated
solely for the purpose of replacement of a copy or phonorecord
that is damaged, deteriorating, lost, or stolen, or if
the existing format in which the work is stored has become
obsolete, if —
(1) the library or archives has, after a reasonable effort,
determined that an unused replacement cannot be obtained
at a fair price; and
(2) any such copy or phonorecord that is reproduced in
digital format is not made available to the public in
that format outside the premises of the library or archives
in lawful possession of such copy.
For purposes of this subsection, a format shall be considered
obsolete if the machine or device necessary to render
perceptible a work stored in that format is no longer
manufactured or is no longer reasonably available in the
commercial marketplace.
(d) The rights of reproduction and distribution under
this section apply to a copy, made from the collection
of a library or archives where the user makes his or her
request or from that of another library or archives, of
no more than one article or other contribution to a copyrighted
collection or periodical issue, or to a copy or phonorecord
of a small part of any other copyrighted work, if —
(1) the copy or phonorecord becomes the property of the
user, and the library or archives has had no notice that
the copy or phonorecord would be used for any purpose
other than private study, scholarship, or research; and
(2) the library or archives displays prominently, at
the place where orders are accepted, and includes on its
order form, a warning of copyright in accordance with
requirements that the Register of Copyrights shall prescribe
by regulation.
(e) The rights of reproduction and distribution under
this section apply to the entire work, or to a substantial
part of it, made from the collection of a library or archives
where the user makes his or her request or from that of
another library or archives, if the library or archives
has first determined, on the basis of a reasonable investigation,
that a copy or phonorecord of the copyrighted work cannot
be obtained at a fair price, if —
(1) the copy or phonorecord becomes the property of the
user, and the library or archives has had no notice that
the copy or phonorecord would be used for any purpose
other than private study, scholarship, or research; and
(2) the library or archives displays prominently, at
the place where orders are accepted, and includes on its
order form, a warning of copyright in accordance with
requirements that the Register of Copyrights shall prescribe
by regulation.
(f) Nothing in this section —
(1) shall be construed to impose liability for copyright
infringement upon a library or archives or its employees
for the unsupervised use of reproducing equipment located
on its premises: Provided, That such equipment
displays a notice that the making of a copy may be subject
to the copyright law;
(2) excuses a person who uses such reproducing equipment
or who requests a copy or phonorecord under subsection
(d) from liability for copyright infringement for any
such act, or for any later use of such copy or phonorecord,
if it exceeds fair use as provided by section
107;
(3) shall be construed to limit the reproduction and
distribution by lending of a limited number of copies
and excerpts by a library or archives of an audiovisual
news program, subject to clauses (1), (2), and (3) of
subsection (a); or
(4) in any way affects the right of fair use as provided
by section 107, or any
contractual obligations assumed at any time by the library
or archives when it obtained a copy or phonorecord of
a work in its collections.
(g) The rights of reproduction and distribution under
this section extend to the isolated and unrelated reproduction
or distribution of a single copy or phonorecord of the
same material on separate occasions, but do not extend
to cases where the library or archives, or its employee —
(1) is aware or has substantial reason to believe that
it is engaging in the related or concerted reproduction
or distribution of multiple copies or phonorecords of
the same material, whether made on one occasion or over
a period of time, and whether intended for aggregate use
by one or more individuals or for separate use by the
individual members of a group; or
(2) engages in the systematic reproduction or distribution
of single or multiple copies or phonorecords of material
described in subsection (d): Provided, That nothing
in this clause prevents a library or archives from participating
in interlibrary arrangements that do not have, as their
purpose or effect, that the library or archives receiving
such copies or phonorecords for distribution does so in
such aggregate quantities as to substitute for a subscription
to or purchase of such work.
(h)(1) For purposes of this section, during the last
20 years of any term of copyright of a published work,
a library or archives, including a nonprofit educational
institution that functions as such, may reproduce, distribute,
display, or perform in facsimile or digital form a copy
or phonorecord of such work, or portions thereof, for
purposes of preservation, scholarship, or research, if
such library or archives has first determined, on the
basis of a reasonable investigation, that none of the
conditions set forth in subparagraphs (A), (B), and (C)
of paragraph (2) apply.
(2) No reproduction, distribution, display, or performance
is authorized under this subsection if —
(A) the work is subject to normal commercial exploitation;
(B) a copy or phonorecord of the work can be obtained
at a reasonable price; or
(C) the copyright owner or its agent provides notice
pursuant to regulations promulgated by the Register of
Copyrights that either of the conditions set forth in
subparagraphs (A) and (B) applies.
(3) The exemption provided in this subsection does not
apply to any subsequent uses by users other than such
library or archives.
(i) The rights of reproduction and distribution under
this section do not apply to a musical work, a pictorial,
graphic or sculptural work, or a motion picture or other
audiovisual work other than an audiovisual work dealing
with news, except that no such limitation shall apply
with respect to rights granted by subsections (b) and
(c), or with respect to pictorial or graphic works published
as illustrations, diagrams, or similar adjuncts to works
of which copies are reproduced or distributed in accordance
with subsections (d) and (e).
§ 109. Limitations on exclusive rights:
Effect of transfer of particular copy or phonorecord40
(a) Notwithstanding the provisions of section
106(3), the owner of a particular copy or phonorecord
lawfully made under this title, or any person authorized
by such owner, is entitled, without the authority of the
copyright owner, to sell or otherwise dispose of the possession
of that copy or phonorecord. Notwithstanding the preceding
sentence, copies or phonorecords of works subject to restored
copyright under section 104A
that are manufactured before the date of restoration of
copyright or, with respect to reliance parties, before
publication or service of notice under section
104A(e), may be sold or otherwise disposed of without
the authorization of the owner of the restored copyright
for purposes of direct or indirect commercial advantage
only during the 12-month period beginning on —
(1) the date of the publication in the Federal Register
of the notice of intent filed with the Copyright Office
under section 104A(d)(2)(A),
or
(2) the date of the receipt of actual notice served under
section 104A(d)(2)(B),
whichever occurs first.
(b)(1)(A) Notwithstanding the provisions of subsection
(a), unless authorized by the owners of copyright in the
sound recording or the owner of copyright in a computer
program (including any tape, disk, or other medium embodying
such program), and in the case of a sound recording in
the musical works embodied therein, neither the owner
of a particular phonorecord nor any person in possession
of a particular copy of a computer program (including
any tape, disk, or other medium embodying such program),
may, for the purposes of direct or indirect commercial
advantage, dispose of, or authorize the disposal of, the
possession of that phonorecord or computer program (including
any tape, disk, or other medium embodying such program)
by rental, lease, or lending, or by any other act or practice
in the nature of rental, lease, or lending. Nothing in
the preceding sentence shall apply to the rental, lease,
or lending of a phonorecord for nonprofit purposes by
a nonprofit library or nonprofit educational institution.
The transfer of possession of a lawfully made copy of
a computer program by a nonprofit educational institution
to another nonprofit educational institution or to faculty,
staff, and students does not constitute rental, lease,
or lending for direct or indirect commercial purposes
under this subsection.
(B) This subsection does not apply to —
(i) a computer program which is embodied in a machine
or product and which cannot be copied during the ordinary
operation or use of the machine or product; or
(ii) a computer program embodied in or used in conjunction
with a limited purpose computer that is designed for playing
video games and may be designed for other purposes.
(C) Nothing in this subsection affects any provision
of chapter 9 of this title.
(2)(A) Nothing in this subsection shall apply to the
lending of a computer program for nonprofit purposes by
a nonprofit library, if each copy of a computer program
which is lent by such library has affixed to the packaging
containing the program a warning of copyright in accordance
with requirements that the Register of Copyrights shall
prescribe by regulation.
(B) Not later than three years after the date of the
enactment of the Computer Software Rental Amendments Act
of 1990, and at such times thereafter as the Register
of Copyrights considers appropriate, the Register of Copyrights,
after consultation with representatives of copyright owners
and librarians, shall submit to the Congress a report
stating whether this paragraph has achieved its intended
purpose of maintaining the integrity of the copyright
system while providing nonprofit libraries the capability
to fulfill their function. Such report shall advise the
Congress as to any information or recommendations that
the Register of Copyrights considers necessary to carry
out the purposes of this subsection.
(3) Nothing in this subsection shall affect any provision
of the antitrust laws. For purposes of the preceding sentence,
“antitrust laws” has the meaning given that
term in the first section of the Clayton Act and includes
section 5 of the Federal Trade Commission Act to the extent
that section relates to unfair methods of competition.
(4) Any person who distributes a phonorecord or a copy
of a computer program (including any tape, disk, or other
medium embodying such program) in violation of paragraph
(1) is an infringer of copyright under section
501 of this title and is subject to the remedies set
forth in sections 502,
503, 504,
505, and
509. Such violation shall not be a criminal offense
under section 506 or cause
such person to be subject to the criminal penalties set
forth in section 2319 of title 18.
(c) Notwithstanding the provisions of section
106(5), the owner of a particular copy lawfully made
under this title, or any person authorized by such owner,
is entitled, without the authority of the copyright owner,
to display that copy publicly, either directly or by the
projection of no more than one image at a time, to viewers
present at the place where the copy is located.
(d) The privileges prescribed by subsections (a) and
(c) do not, unless authorized by the copyright owner,
extend to any person who has acquired possession of the
copy or phonorecord from the copyright owner, by rental,
lease, loan, or otherwise, without acquiring ownership
of it.
(e) Notwithstanding the provisions of sections
106(4) and 106(5), in the case of an electronic audiovisual
game intended for use in coin-operated equipment, the
owner of a particular copy of such a game lawfully made
under this title, is entitled, without the authority of
the copyright owner of the game, to publicly perform or
display that game in coin-operated equipment, except that
this subsection shall not apply to any work of authorship
embodied in the audiovisual game if the copyright owner
of the electronic audiovisual game is not also the copyright
owner of the work of authorship.
§ 110. Limitations on exclusive rights:
Exemption of certain performances and displays41
Notwithstanding the provisions of section
106, the following are not infringements of copyright:
(1) performance or display of a work by instructors or
pupils in the course of face-to-face teaching activities
of a nonprofit educational institution, in a classroom
or similar place devoted to instruction, unless, in the
case of a motion picture or other audiovisual work, the
performance, or the display of individual images, is given
by means of a copy that was not lawfully made under this
title, and that the person responsible for the performance
knew or had reason to believe was not lawfully made;
(2) except with respect to a work produced or marketed
primarily for performance or display as part of mediated
instructional activities transmitted via digital networks,
or a performance or display that is given by means of
a copy or phonorecord that is not lawfully made and acquired
under this title, and the transmitting government body
or accredited nonprofit educational institution knew or
had reason to believe was not lawfully made and acquired,
the performance of a nondramatic literary or musical work
or reasonable and limited portions of any other work,
or display of a work in an amount comparable to that which
is typically displayed in the course of a live classroom
session, by or in the course of a transmission, if —
(A) the performance or display is made by, at the direction
of, or under the actual supervision of an instructor as
an integral part of a class session offered as a regular
part of the systematic mediated instructional activities
of a governmental body or an accredited nonprofit educational
institution;
(B) the performance or display is directly related and
of material assistance to the teaching content of the
transmission;
(C) the transmission is made solely for, and, to the
extent technologically feasible, the reception of such
transmission is limited to —
(i) students officially enrolled in the course for which
the transmission is made; or
(ii) officers or employees of governmental bodies as
a part of their official duties or employment; and
(D) the transmitting body or institution —
(i) institutes policies regarding copyright, provides
informational materials to faculty, students, and relevant
staff members that accurately describe, and promote compliance
with, the laws of the United States relating to copyright,
and provides notice to students that materials used in
connection with the course may be subject to copyright
protection; and
(ii) in the case of digital transmissions —
(I) applies technological measures that reasonably prevent —
(aa) retention of the work in accessible form by recipients
of the transmission from the transmitting body or institution
for longer than the class session; and
(bb) unauthorized further dissemination of the work
in accessible form by such recipients to others; and
(II) does not engage in conduct that could reasonably
be expected to interfere with technological measures used
by copyright owners to prevent such retention or unauthorized
further dissemination;
(3) performance of a nondramatic literary or musical
work or of a dramatico-musical work of a religious nature,
or display of a work, in the course of services at a place
of worship or other religious assembly;
(4) performance of a nondramatic literary or musical
work otherwise than in a transmission to the public, without
any purpose of direct or indirect commercial advantage
and without payment of any fee or other compensation for
the performance to any of its performers, promoters, or
organizers, if —
(A) there is no direct or indirect admission charge;
or
(B) the proceeds, after deducting the reasonable costs
of producing the performance, are used exclusively for
educational, religious, or charitable purposes and not
for private financial gain, except where the copyright
owner has served notice of objection to the performance
under the following conditions:
(i) the notice shall be in writing and signed by the
copyright owner or such owner's duly authorized agent;
and
(ii) the notice shall be served on the person responsible
for the performance at least seven days before the date
of the performance, and shall state the reasons for the
objection; and
(iii) the notice shall comply, in form, content, and
manner of service, with requirements that the Register
of Copyrights shall prescribe by regulation;
(5)(A) except as provided in subparagraph (B), communication
of a transmission embodying a performance or display of
a work by the public reception of the transmission on
a single receiving apparatus of a kind commonly used in
private homes, unless —
(i) a direct charge is made to see or hear the transmission;
or
(ii) the transmission thus received is further transmitted
to the public;
(B) communication by an establishment of a transmission
or retransmission embodying a performance or display of
a nondramatic musical work intended to be received by
the general public, originated by a radio or television
broadcast station licensed as such by the Federal Communications
Commission, or, if an audiovisual transmission, by a cable
system or satellite carrier, if —
(i) in the case of an establishment other than a food
service or drinking establishment, either the establishment
in which the communication occurs has less than 2,000
gross square feet of space (excluding space used for customer
parking and for no other purpose), or the establishment
in which the communication occurs has 2,000 or more gross
square feet of space (excluding space used for customer
parking and for no other purpose) and —
(I) if the performance is by audio means only, the performance
is communicated by means of a total of not more than 6
loudspeakers, of which not more than 4 loudspeakers are
located in any 1 room or adjoining outdoor space; or
(II) if the performance or display is by audiovisual
means, any visual portion of the performance or display
is communicated by means of a total of not more than 4
audiovisual devices, of which not more than 1 audiovisual
device is located in any 1 room, and no such audiovisual
device has a diagonal screen size greater than 55 inches,
and any audio portion of the performance or display is
communicated by means of a total of not more than 6 loudspeakers,
of which not more than 4 loudspeakers are located in any
1 room or adjoining outdoor space;
(ii) in the case of a food service or drinking establishment,
either the establishment in which the communication occurs
has less than 3,750 gross square feet of space (excluding
space used for customer parking and for no other purpose),
or the establishment in which the communication occurs
has 3,750 gross square feet of space or more (excluding
space used for customer parking and for no other purpose)
and —
(I) if the performance is by audio means only, the performance
is communicated by means of a total of not more than 6
loudspeakers, of which not more than 4 loudspeakers are
located in any 1 room or adjoining outdoor space; or
(II) if the performance or display is by audiovisual
means, any visual portion of the performance or display
is communicated by means of a total of not more than 4
audiovisual devices, of which not more than 1 audiovisual
device is located in any 1 room, and no such audiovisual
device has a diagonal screen size greater than 55 inches,
and any audio portion of the performance or display is
communicated by means of a total of not more than 6 loudspeakers,
of which not more than 4 loudspeakers are located in any
1 room or adjoining outdoor space;
(iii) no direct charge is made to see or hear the transmission
or retransmission;
(iv) the transmission or retransmission is not further
transmitted beyond the establishment where it is received;
and
(v) the transmission or retransmission is licensed by
the copyright owner of the work so publicly performed
or displayed;
(6) performance of a nondramatic musical work by a governmental
body or a nonprofit agricultural or horticultural organization,
in the course of an annual agricultural or horticultural
fair or exhibition conducted by such body or organization;
the exemption provided by this clause shall extend to
any liability for copyright infringement that would otherwise
be imposed on such body or organization, under doctrines
of vicarious liability or related infringement, for a
performance by a concessionnaire, business establishment,
or other person at such fair or exhibition, but shall
not excuse any such person from liability for the performance;
(7) performance of a nondramatic musical work by a vending
establishment open to the public at large without any
direct or indirect admission charge, where the sole purpose
of the performance is to promote the retail sale of copies
or phonorecords of the work, or of the audiovisual or
other devices utilized in such performance, and the performance
is not transmitted beyond the place where the establishment
is located and is within the immediate area where the
sale is occurring;
(8) performance of a nondramatic literary work, by or
in the course of a transmission specifically designed
for and primarily directed to blind or other handicapped
persons who are unable to read normal printed material
as a result of their handicap, or deaf or other handicapped
persons who are unable to hear the aural signals accompanying
a transmission of visual signals, if the performance is
made without any purpose of direct or indirect commercial
advantage and its transmission is made through the facilities
of: (i) a governmental body; or (ii) a noncommercial educational
broadcast station (as defined in section 397 of title
47); or (iii) a radio subcarrier authorization (as defined
in 47 CFR 73.293–73.295 and 73.593–73.595);
or (iv) a cable system (as defined in section
111 (f));
(9) performance on a single occasion of a dramatic literary
work published at least ten years before the date of the
performance, by or in the course of a transmission specifically
designed for and primarily directed to blind or other
handicapped persons who are unable to read normal printed
material as a result of their handicap, if the performance
is made without any purpose of direct or indirect commercial
advantage and its transmission is made through the facilities
of a radio subcarrier authorization referred to in clause
(8) (iii), Provided, That the provisions of this
clause shall not be applicable to more than one performance
of the same work by the same performers or under the auspices
of the same organization; and
(10) notwithstanding paragraph (4), the following is
not an infringement of copyright: performance of a nondramatic
literary or musical work in the course of a social function
which is organized and promoted by a nonprofit veterans'
organization or a nonprofit fraternal organization to
which the general public is not invited, but not including
the invitees of the organizations, if the proceeds from
the performance, after deducting the reasonable costs
of producing the performance, are used exclusively for
charitable purposes and not for financial gain. For purposes
of this section the social functions of any college or
university fraternity or sorority shall not be included
unless the social function is held solely to raise funds
for a specific charitable purpose.
The exemptions provided under paragraph (5) shall not
be taken into account in any administrative, judicial,
or other governmental proceeding to set or adjust the
royalties payable to copyright owners for the public performance
or display of their works. Royalties payable to copyright
owners for any public performance or display of their
works other than such performances or displays as are
exempted under paragraph (5) shall not be diminished in
any respect as a result of such exemption.
In paragraph (2), the term “mediated instructional
activities” with respect to the performance or display
of a work by digital transmission under this section refers
to activities that use such work as an integral part of
the class experience, controlled by or under the actual
supervision of the instructor and analogous to the type
of performance or display that would take place in a live
classroom setting. The term does not refer to activities
that use, in 1 or more class sessions of a single course,
such works as textbooks, course packs, or other material
in any media, copies or phonorecords of which are typically
purchased or acquired by the students in higher education
for their independent use and retention or are typically
purchased or acquired for elementary and secondary students
for their possession and independent use.
For purposes of paragraph (2), accreditation —
(A) with respect to an institution providing post-secondary
education, shall be as determined by a regional or national
accrediting agency recognized by the Council on Higher
Education Accreditation or the United States Department
of Education; and
(B) with respect to an institution providing elementary
or secondary education, shall be as recognized by the
applicable state certification or licensing procedures.
For purposes of paragraph (2), no governmental body
or accredited nonprofit educational institution shall
be liable for infringement by reason of the transient
or temporary storage of material carried out through the
automatic technical process of a digital transmission
of the performance or display of that material as authorized
under paragraph (2). No such material stored on the system
or network controlled or operated by the transmitting
body or institution under this paragraph shall be maintained
on such system or network in a manner ordinarily accessible
to anyone other than anticipated recipients. No such copy
shall be maintained on the system or network in a manner
ordinarily accessible to such anticipated recipients for
a longer period than is reasonably necessary to facilitate
the transmissions for which it was made.
§ 111. Limitations on exclusive rights:
Secondary transmissions42
(a) Certain Secondary Transmissions Exempted. — The
secondary transmission of a performance or display of
a work embodied in a primary transmission is not an infringement
of copyright if —
(1) the secondary transmission is not made by a cable
system, and consists entirely of the relaying, by the
management of a hotel, apartment house, or similar establishment,
of signals transmitted by a broadcast station licensed
by the Federal Communications Commission, within the local
service area of such station, to the private lodgings
of guests or residents of such establishment, and no direct
charge is made to see or hear the secondary transmission;
or
(2) the secondary transmission is made solely for the
purpose and under the conditions specified by clause (2)
of section 110; or
(3) the secondary transmission is made by any carrier
who has no direct or indirect control over the content
or selection of the primary transmission or over the particular
recipients of the secondary transmission, and whose activities
with respect to the secondary transmission consist solely
of providing wires, cables, or other communications channels
for the use of others: Provided, That the provisions
of this clause extend only to the activities of said carrier
with respect to secondary transmissions and do not exempt
from liability the activities of others with respect to
their own primary or secondary transmissions;
(4) the secondary transmission is made by a satellite
carrier for private home viewing pursuant to a statutory
license under section 119;
or
(5) the secondary transmission is not made by a cable
system but is made by a governmental body, or other nonprofit
organization, without any purpose of direct or indirect
commercial advantage, and without charge to the recipients
of the secondary transmission other than assessments necessary
to defray the actual and reasonable costs of maintaining
and operating the secondary transmission service.
(b) Secondary Transmission of Primary Transmission
to Controlled Group. — Notwithstanding
the provisions of subsections (a) and (c), the secondary
transmission to the public of a performance or display
of a work embodied in a primary transmission is actionable
as an act of infringement under section
501, and is fully subject to the remedies provided
by sections 502 through
506 and 509,
if the primary transmission is not made for reception
by the public at large but is controlled and limited to
reception by particular members of the public: Provided,
however, That such secondary transmission is not actionable
as an act of infringement if —
(1) the primary transmission is made by a broadcast station
licensed by the Federal Communications Commission; and
(2) the carriage of the signals comprising the secondary
transmission is required under the rules, regulations,
or authorizations of the Federal Communications Commission;
and
(3) the signal of the primary transmitter is not altered
or changed in any way by the secondary transmitter.
(c) Secondary Transmissions by Cable Systems. —
(1) Subject to the provisions of clauses (2), (3), and
(4) of this subsection and section
114(d), secondary transmissions to the public by a
cable system of a performance or display of a work embodied
in a primary transmission made by a broadcast station
licensed by the Federal Communications Commission or by
an appropriate governmental authority of Canada or Mexico
shall be subject to statutory licensing upon compliance
with the requirements of subsection (d) where the carriage
of the signals comprising the secondary transmission is
permissible under the rules, regulations, or authorizations
of the Federal Communications Commission.
(2) Notwithstanding the provisions of clause (1) of this
subsection, the willful or repeated secondary transmission
to the public by a cable system of a primary transmission
made by a broadcast station licensed by the Federal Communications
Commission or by an appropriate governmental authority
of Canada or Mexico and embodying a performance or display
of a work is actionable as an act of infringement under
section 501, and is fully
subject to the remedies provided by sections
502 through 506 and
509, in the following cases:
(A) where the carriage of the signals comprising the
secondary transmission is not permissible under the rules,
regulations, or authorizations of the Federal Communications
Commission; or
(B) where the cable system has not deposited the statement
of account and royalty fee required by subsection (d).
(3) Notwithstanding the provisions of clause (1) of this
subsection and subject to the provisions of subsection
(e) of this section, the secondary transmission to the
public by a cable system of a performance or display of
a work embodied in a primary transmission made by a broadcast
station licensed by the Federal Communications Commission
or by an appropriate governmental authority of Canada
or Mexico is actionable as an act of infringement under
section 501, and is fully
subject to the remedies provided by sections
502 through 506 and
sections 509 and 510,
if the content of the particular program in which the
performance or display is embodied, or any commercial
advertising or station announcements transmitted by the
primary transmitter during, or immediately before or after,
the transmission of such program, is in any way willfully
altered by the cable system through changes, deletions,
or additions, except for the alteration, deletion, or
substitution of commercial advertisements performed by
those engaged in television commercial advertising market
research: >Provided, That the research company
has obtained the prior consent of the advertiser who has
purchased the original commercial advertisement, the television
station broadcasting that commercial advertisement, and
the cable system performing the secondary transmission:
And provided further, That such commercial alteration,
deletion, or substitution is not performed for the purpose
of deriving income from the sale of that commercial time.
(4) Notwithstanding the provisions of clause (1) of this
subsection, the secondary transmission to the public by
a cable system of a performance or display of a work embodied
in a primary transmission made by a broadcast station
licensed by an appropriate governmental authority of Canada
or Mexico is actionable as an act of infringement under
section 501, and is fully
subject to the remedies provided by sections
502 through 506 and
section 509, if (A) with
respect to Canadian signals, the community of the cable
system is located more than 150 miles from the United
States–Canadian border and is also located south
of the forty-second parallel of latitude, or (B) with
respect to Mexican signals, the secondary transmission
is made by a cable system which received the primary transmission
by means other than direct interception of a free space
radio wave emitted by such broadcast television station,
unless prior to April 15, 1976, such cable system was
actually carrying, or was specifically authorized to carry,
the signal of such foreign station on the system pursuant
to the rules, regulations, or authorizations of the Federal
Communications Commission.
(d) Statutory License for Secondary Transmissions
by Cable Systems.43 —
(1) A cable system whose secondary transmissions have
been subject to statutory licensing under subsection (c)
shall, on a semiannual basis, deposit with the Register
of Copyrights, in accordance with requirements that the
Register shall prescribe by regulation —
(A) a statement of account, covering the six months next
preceding, specifying the number of channels on which
the cable system made secondary transmissions to its subscribers,
the names and locations of all primary transmitters whose
transmissions were further transmitted by the cable system,
the total number of subscribers, the gross amounts paid
to the cable system for the basic service of providing
secondary transmissions of primary broadcast transmitters,
and such other data as the Register of Copyrights may
from time to time prescribe by regulation. In determining
the total number of subscribers and the gross amounts
paid to the cable system for the basic service of providing
secondary transmissions of primary broadcast transmitters,
the cable system shall not include subscribers and amounts
collected from subscribers receiving secondary transmissions
for private home viewing pursuant to section
119. Such statement shall also include a special statement
of account covering any nonnetwork television programming
that was carried by the cable system in whole or in part
beyond the local service area of the primary transmitter,
under rules, regulations, or authorizations of the Federal
Communications Commission permitting the substitution
or addition of signals under certain circumstances, together
with logs showing the times, dates, stations, and programs
involved in such substituted or added carriage; and
(B) except in the case of a cable system whose royalty
is specified in subclause (C) or (D), a total royalty
fee for the period covered by the statement, computed
on the basis of specified percentages of the gross receipts
from subscribers to the cable service during said period
for the basic service of providing secondary transmissions
of primary broadcast transmitters, as follows:
(i) 0.675 of 1 per centum of such gross receipts for
the privilege of further transmitting any nonnetwork programming
of a primary transmitter in whole or in part beyond the
local service area of such primary transmitter, such amount
to be applied against the fee, if any, payable pursuant
to paragraphs (ii) through (iv);
(ii) 0.675 of 1 per centum of such gross receipts for
the first distant signal equivalent;
(iii) 0.425 of 1 per centum of such gross receipts for
each of the second, third, and fourth distant signal equivalents;
(iv) 0.2 of 1 per centum of such gross receipts for the
fifth distant signal equivalent and each additional distant
signal equivalent thereafter; and
in computing the amounts payable under paragraph (ii)
through (iv), above, any fraction of a distant signal
equivalent shall be computed at its fractional value and,
in the case of any cable system located partly within
and partly without the local service area of a primary
transmitter, gross receipts shall be limited to those
gross receipts derived from subscribers located without
the local service area of such primary transmitter; and
(C) if the actual gross receipts paid by subscribers
to a cable system for the period covered by the statement
for the basic service of providing secondary transmissions
of primary broadcast transmitters total $80,000 or less,
gross receipts of the cable system for the purpose of
this subclause shall be computed by subtracting from such
actual gross receipts the amount by which $80,000 exceeds
such actual gross receipts, except that in no case shall
a cable system's gross receipts be reduced to less than
$3,000. The royalty fee payable under this subclause shall
be 0.5 of 1 per centum, regardless of the number of distant
signal equivalents, if any; and
(D) if the actual gross receipts paid by subscribers
to a cable system for the period covered by the statement,
for the basic service of providing secondary transmissions
of primary broadcast transmitters, are more than $80,000
but less than $160,000, the royalty fee payable under
this subclause shall be
(i) 0.5 of 1 per centum of any gross receipts up to $80,000;
and
(ii) 1 per centum of any gross receipts in excess of
$80,000 but less than $160,000, regardless of the number
of distant signal equivalents, if any.
(2) The Register of Copyrights shall receive all fees
deposited under this section and, after deducting the
reasonable costs incurred by the Copyright Office under
this section, shall deposit the balance in the Treasury
of the United States, in such manner as the Secretary
of the Treasury directs. All funds held by the Secretary
of the Treasury shall be invested in interest-bearing
United States securities for later distribution with interest
by the Librarian of Congress in the event no controversy
over distribution exists, or by a copyright arbitration
royalty panel in the event a controversy over such distribution
exists.
(3) The royalty fees thus deposited shall, in accordance
with the procedures provided by clause (4), be distributed
to those among the following copyright owners who claim
that their works were the subject of secondary transmissions
by cable systems during the relevant semiannual period:
(A) any such owner whose work was included in a secondary
transmission made by a cable system of a nonnetwork television
program in whole or in part beyond the local service area
of the primary transmitter; and
(B) any such owner whose work was included in a secondary
transmission identified in a special statement of account
deposited under clause (1) (A); and
(C) any such owner whose work was included in nonnetwork
programming consisting exclusively of aural signals carried
by a cable system in whole or in part beyond the local
service area of the primary transmitter of such programs.
(4) The royalty fees thus deposited
shall be distributed in accordance with the following
procedures:
(A) During the month of July in each year, every person
claiming to be entitled to statutory license fees for
secondary transmissions shall file a claim with the Librarian
of Congress, in accordance with requirements that the
Librarian of Congress shall prescribe by regulation. Notwithstanding
any provisions of the antitrust laws, for purposes of
this clause any claimants may agree among themselves as
to the proportionate division of statutory licensing fees
among them, may lump their claims together and file them
jointly or as a single claim, or may designate a common
agent to receive payment on their behalf.
(B) After the first day of August of each year, the Librarian
of Congress shall, upon the recommendation of the Register
of Copyrights, determine whether there exists a controversy
concerning the distribution of royalty fees. If the Librarian
determines that no such controversy exists, the Librarian
shall, after deducting reasonable administrative costs
under this section, distribute such fees to the copyright
owners entitled to such fees, or to their designated agents.
If the Librarian finds the existence of a controversy,
the Librarian shall, pursuant to chapter
8 of this title, convene a copyright arbitration royalty
panel to determine the distribution of royalty fees.
(C) During the pendency of any proceeding under this
subsection, the Librarian of Congress shall withhold from
distribution an amount sufficient to satisfy all claims
with respect to which a controversy exists, but shall
have discretion to proceed to distribute any amounts that
are not in controversy.
(e) Nonsimultaneous Secondary Transmissions by
Cable Systems. —
(1) Notwithstanding those provisions of the second paragraph
of subsection (f) relating to nonsimultaneous secondary
transmissions by a cable system, any such transmissions
are actionable as an act of infringement under section
501, and are fully subject to the remedies provided
by sections 502 through
506 and sections
509 and 510, unless —
(A) the program on the videotape is transmitted no more
than one time to the cable system's subscribers; and
(B) the copyrighted program, episode, or motion picture
videotape, including the commercials contained within
such program, episode, or picture, is transmitted without
deletion or editing; and
(C) an owner or officer of the cable system
(i) prevents the duplication of the videotape while in
the possession of the system,
(ii) prevents unauthorized duplication while in the possession
of the facility making the videotape for the system if
the system owns or controls the facility, or takes reasonable
precautions to prevent such duplication if it does not
own or control the facility,
(iii) takes adequate precautions to prevent duplication
while the tape is being transported, and
(iv) subject to clause (2), erases or destroys, or causes
the erasure or destruction of, the videotape; and
(D) within forty-five days after the end of each calendar
quarter, an owner or officer of the cable system executes
an affidavit attesting
(i) to the steps and precautions taken to prevent duplication
of the videotape, and
(ii) subject to clause (2), to the erasure or destruction
of all videotapes made or used during such quarter; and
(E) such owner or officer places or causes each such
affidavit, and affidavits received pursuant to clause
(2) (C), to be placed in a file, open to public inspection,
at such system's main office in the community where the
transmission is made or in the nearest community where
such system maintains an office; and
(F) the nonsimultaneous transmission is one that the
cable system would be authorized to transmit under the
rules, regulations, and authorizations of the Federal
Communications Commission in effect at the time of the
nonsimultaneous transmission if the transmission had been
made simultaneously, except that this subclause shall
not apply to inadvertent or accidental transmissions.
(2) If a cable system transfers to any person a videotape
of a program nonsimultaneously transmitted by it, such
transfer is actionable as an act of infringement under
section 501, and is fully
subject to the remedies provided by sections
502 through 506 and
509, except that, pursuant
to a written, nonprofit contract providing for the equitable
sharing of the costs of such videotape and its transfer,
a videotape nonsimultaneously transmitted by it, in accordance
with clause (1), may be transferred by one cable system
in Alaska to another system in Alaska, by one cable system
in Hawaii permitted to make such nonsimultaneous transmissions
to another such cable system in Hawaii, or by one cable
system in Guam, the Northern Mariana Islands, or the Trust
Territory of the Pacific Islands, to another cable system
in any of those three territories, if —
(A) each such contract is available for public inspection
in the offices of the cable systems involved, and a copy
of such contract is filed, within thirty days after such
contract is entered into, with the Copyright Office (which
Office shall make each such contract available for public
inspection); and
(B) the cable system to which the videotape is transferred
complies with clause (1) (A), (B), (C) (i), (iii), and
(iv), and (D) through (F); and
(C) such system provides a copy of the affidavit required
to be made in accordance with clause (1) (D) to each cable
system making a previous nonsimultaneous transmission
of the same videotape.
(3) This subsection shall not be construed to supersede
the exclusivity protection provisions of any existing
agreement, or any such agreement hereafter entered into,
between a cable system and a television broadcast station
in the area in which the cable system is located, or a
network with which such station is affiliated.
(4) As used in this subsection, the term “videotape”,
and each of its variant forms, means the reproduction
of the images and sounds of a program or programs broadcast
by a television broadcast station licensed by the Federal
Communications Commission, regardless of the nature of
the material objects, such as tapes or films, in which
the reproduction is embodied.
(f) Definitions. — As used
in this section, the following terms and their variant
forms mean the following:
A “primary transmission” is a transmission
made to the public by the transmitting facility whose
signals are being received and further transmitted by
the secondary transmission service, regardless of where
or when the performance or display was first transmitted.
A “secondary transmission” is the further
transmitting of a primary transmission simultaneously
with the primary transmission, or nonsimultaneously with
the primary transmission if by a “cable system”
not located in whole or in part within the boundary of
the forty-eight contiguous States, Hawaii, or Puerto Rico:
Provided, however, That a nonsimultaneous further
transmission by a cable system located in Hawaii of a
primary transmission shall be deemed to be a secondary
transmission if the carriage of the television broadcast
signal comprising such further transmission is permissible
under the rules, regulations, or authorizations of the
Federal Communications Commission.
A “cable system” is a facility, located in
any State, Territory, Trust Territory, or Possession,
that in whole or in part receives signals transmitted
or programs broadcast by one or more television broadcast
stations licensed by the Federal Communications Commission,
and makes secondary transmissions of such signals or programs
by wires, cables, microwave, or other communications channels
to subscribing members of the public who pay for such
service. For purposes of determining the royalty fee under
subsection (d)(1), two or more cable systems in contiguous
communities under common ownership or control or operating
from one headend shall be considered as one system.
The “local service area of a primary transmitter”,
in the case of a television broadcast station, comprises
the area in which such station is entitled to insist upon
its signal being retransmitted by a cable system pursuant
to the rules, regulations, and authorizations of the Federal
Communications Commission in effect on April 15, 1976,
or such station's television market as defined in section
76.55(e) of title 47, Code of Federal Regulations (as
in effect on September 18, 1993), or any modifications
to such television market made, on or after September
18, 1993, pursuant to section 76.55(e) or 76.59 of title
47 of the Code of Federal Regulations, or in the case
of a television broadcast station licensed by an appropriate
governmental authority of Canada or Mexico, the area in
which it would be entitled to insist upon its signal being
retransmitted if it were a television broadcast station
subject to such rules, regulations, and authorizations.
In the case of a low power television station, as defined
by the rules and regulations of the Federal Communications
Commission, the “local service area of a primary
transmitter” comprises the area within 35 miles
of the transmitter site, except that in the case of such
a station located in a standard metropolitan statistical
area which has one of the 50 largest populations of all
standard metropolitan statistical areas (based on the
1980 decennial census of population taken by the Secretary
of Commerce), the number of miles shall be 20 miles. The
“local service area of a primary transmitter”,
in the case of a radio broadcast station, comprises the
primary service area of such station, pursuant to the
rules and regulations of the Federal Communications Commission.
A “distant signal equivalent” is the value
assigned to the secondary transmission of any nonnetwork
television programming carried by a cable system in whole
or in part beyond the local service area of the primary
transmitter of such programming. It is computed by assigning
a value of one to each independent station and a value
of one-quarter to each network station and noncommercial
educational station for the nonnetwork programming so
carried pursuant to the rules, regulations, and authorizations
of the Federal Communications Commission. The foregoing
values for independent, network, and noncommercial educational
stations are subject, however, to the following exceptions
and limitations. Where the rules and regulations of the
Federal Communications Commission require a cable system
to omit the further transmission of a particular program
and such rules and regulations also permit the substitution
of another program embodying a performance or display
of a work in place of the omitted transmission, or where
such rules and regulations in effect on the date of enactment
of this Act permit a cable system, at its election, to
effect such deletion and substitution of a nonlive program
or to carry additional programs not transmitted by primary
transmitters within whose local service area the cable
system is located, no value shall be assigned for the
substituted or additional program; where the rules, regulations,
or authorizations of the Federal Communications Commission
in effect on the date of enactment of this Act permit
a cable system, at its election, to omit the further transmission
of a particular program and such rules, regulations, or
authorizations also permit the substitution of another
program embodying a performance or display of a work in
place of the omitted transmission, the value assigned
for the substituted or additional program shall be, in
the case of a live program, the value of one full distant
signal equivalent multiplied by a fraction that has as
its numerator the number of days in the year in which
such substitution occurs and as its denominator the number
of days in the year. In the case of a station carried
pursuant to the late-night or specialty programming rules
of the Federal Communications Commission, or a station
carried on a part-time basis where full-time carriage
is not possible because the cable system lacks the activated
channel capacity to retransmit on a full-time basis all
signals which it is authorized to carry, the values for
independent, network, and noncommercial educational stations
set forth above, as the case may be, shall be multiplied
by a fraction which is equal to the ratio of the broadcast
hours of such station carried by the cable system to the
total broadcast hours of the station.
A “network station” is a television broadcast
station that is owned or operated by, or affiliated with,
one or more of the television networks in the United States
providing nationwide transmissions, and that transmits
a substantial part of the programming supplied by such
networks for a substantial part of that station's typical
broadcast day.
An “independent station” is a commercial
television broadcast station other than a network station.
A “noncommercial educational station” is
a television station that is a noncommercial educational
broadcast station as defined in section 397 of title 47.
§ 112. Limitations on exclusive rights:
Ephemeral recordings44
(a)(1) Notwithstanding the provisions of section
106, and except in the case of a motion picture or
other audiovisual work, it is not an infringement of copyright
for a transmitting organization entitled to transmit to
the public a performance or display of a work, under a
license, including a statutory license under section
114(f), or transfer of the copyright or under the
limitations on exclusive rights in sound recordings specified
by section 114 (a) or for
a transmitting organization that is a broadcast radio
or television station licensed as such by the Federal
Communications Commission and that makes a broadcast transmission
of a performance of a sound recording in a digital format
on a nonsubscription basis, to make no more than one copy
or phonorecord of a particular transmission program embodying
the performance or display, if —
(A) the copy or phonorecord is retained and used solely
by the transmitting organization that made it, and no
further copies or phonorecords are reproduced from it;
and
(B) the copy or phonorecord is used solely for the transmitting
organization's own transmissions within its local service
area, or for purposes of archival preservation or security;
and
(C) unless preserved exclusively for archival purposes,
the copy or phonorecord is destroyed within six months
from the date the transmission program was first transmitted
to the public.
(2) In a case in which a transmitting organization entitled
to make a copy or phonorecord under paragraph (1) in connection
with the transmission to the public of a performance or
display of a work is prevented from making such copy or
phonorecord by reason of the application by the copyright
owner of technical measures that prevent the reproduction
of the work, the copyright owner shall make available
to the transmitting organization the necessary means for
permitting the making of such copy or phonorecord as permitted
under that paragraph, if it is technologically feasible
and economically reasonable for the copyright owner to
do so. If the copyright owner fails to do so in a timely
manner in light of the transmitting organization's reasonable
business requirements, the transmitting organization shall
not be liable for a violation of section
1201(a)(1) of this title for engaging in such activities
as are necessary to make such copies or phonorecords as
permitted under paragraph (1) of this subsection.
(b) Notwithstanding the provisions of section
106, it is not an infringement of copyright for a
governmental body or other nonprofit organization entitled
to transmit a performance or display of a work, under
section 110(2) or under
the limitations on exclusive rights in sound recordings
specified by section 114(a),
to make no more than thirty copies or phonorecords of
a particular transmission program embodying the performance
or display, if —
(1) no further copies or phonorecords are reproduced
from the copies or phonorecords made under this clause;
and
(2) except for one copy or phonorecord that may be preserved
exclusively for archival purposes, the copies or phonorecords
are destroyed within seven years from the date the transmission
program was first transmitted to the public.
(c) Notwithstanding the provisions of section
106, it is not an infringement of copyright for a
governmental body or other nonprofit organization to make
for distribution no more than one copy or phonorecord,
for each transmitting organization specified in clause
(2) of this subsection, of a particular transmission program
embodying a performance of a nondramatic musical work
of a religious nature, or of a sound recording of such
a musical work, if —
(1) there is no direct or indirect charge for making
or distributing any such copies or phonorecords; and
(2) none of such copies or phonorecords is used for any
performance other than a single transmission to the public
by a transmitting organization entitled to transmit to
the public a performance of the work under a license or
transfer of the copyright; and
(3) except for one copy or phonorecord that may be preserved
exclusively for archival purposes, the copies or phonorecords
are all destroyed within one year from the date the transmission
program was first transmitted to the public.
(d) Notwithstanding the provisions of section
106, it is not an infringement of copyright for a
governmental body or other nonprofit organization entitled
to transmit a performance of a work under section
110(8) to make no more than ten copies or phonorecords
embodying the performance, or to permit the use of any
such copy or phonorecord by any governmental body or nonprofit
organization entitled to transmit a performance of a work
under section 110(8), if —
(1) any such copy or phonorecord is retained and used
solely by the organization that made it, or by a governmental
body or nonprofit organization entitled to transmit a
performance of a work under section
110(8), and no further copies or phonorecords are
reproduced from it; and
(2) any such copy or phonorecord is used solely for transmissions
authorized under section 110(8),
or for purposes of archival preservation or security;
and
(3) the governmental body or nonprofit organization permitting
any use of any such copy or phonorecord by any governmental
body or nonprofit organization under this subsection does
not make any charge for such use.
(e) Statutory License. — (1) A transmitting
organization entitled to transmit to the public a performance
of a sound recording under the limitation on exclusive
rights specified by section
114(d)(1)(C)(iv) or under a statutory license in accordance
with section 114(f) is
entitled to a statutory license, under the conditions
specified by this subsection, to make no more than 1 phonorecord
of the sound recording (unless the terms and conditions
of the statutory license allow for more), if the following
conditions are satisfied:
(A) The phonorecord is retained and used solely by the
transmitting organization that made it, and no further
phonorecords are reproduced from it.
(B) The phonorecord is used solely for the transmitting
organization's own transmissions originating in the United
States under a statutory license in accordance with section
114(f) or the limitation on exclusive rights specified
by section 114(d)(1)(C)(iv).
(C) Unless preserved exclusively for purposes of archival
preservation, the phonorecord is destroyed within 6 months
from the date the sound recording was first transmitted
to the public using the phonorecord.
(D) Phonorecords of the sound recording have been distributed
to the public under the authority of the copyright owner
or the copyright owner authorizes the transmitting entity
to transmit the sound recording, and the transmitting
entity makes the phonorecord under this subsection from
a phonorecord lawfully made and acquired under the authority
of the copyright owner.
(2) Notwithstanding any provision of the antitrust laws,
any copyright owners of sound recordings and any transmitting
organizations entitled to a statutory license under this
subsection may negotiate and agree upon royalty rates
and license terms and conditions for making phonorecords
of such sound recordings under this section and the proportionate
division of fees paid among copyright owners, and may
designate common agents to negotiate, agree to, pay, or
receive such royalty payments.
(3) No later than 30 days after the date of the enactment
of the Digital Millennium Copyright Act, the Librarian
of Congress shall cause notice to be published in the
Federal Register of the initiation of voluntary negotiation
proceedings for the purpose of determining reasonable
terms and rates of royalty payments for the activities
specified by paragraph (1) of this subsection during the
period beginning on the date of the enactment of such
Act and ending on December 31, 2000, or such other date
as the parties may agree. Such rates shall include a minimum
fee for each type of service offered by transmitting organizations.
Any copyright owners of sound recordings or any transmitting
organizations entitled to a statutory license under this
subsection may submit to the Librarian of Congress licenses
covering such activities with respect to such sound recordings.
The parties to each negotiation proceeding shall bear
their own costs.
(4) In the absence of license agreements negotiated under
paragraph (2), during the 60-day period commencing 6 months
after publication of the notice specified in paragraph
(3), and upon the filing of a petition in accordance with
section 803(a)(1), the
Librarian of Congress shall, pursuant to chapter
8, convene a copyright arbitration royalty panel to
determine and publish in the Federal Register a schedule
of reasonable rates and terms which, subject to paragraph
(5), shall be binding on all copyright owners of sound
recordings and transmitting organizations entitled to
a statutory license under this subsection during the period
beginning on the date of the enactment of the Digital
Millennium Copyright Act and ending on December 31, 2000,
or such other date as the parties may agree. Such rates
shall include a minimum fee for each type of service offered
by transmitting organizations. The copyright arbitration
royalty panel shall establish rates that most clearly
represent the fees that would have been negotiated in
the marketplace between a willing buyer and a willing
seller. In determining such rates and terms, the copyright
arbitration royalty panel shall base its decision on economic,
competitive, and programming information presented by
the parties, including —
(A) whether use of the service may substitute for or
may promote the sales of phonorecords or otherwise interferes
with or enhances the copyright owner's traditional streams
of revenue; and
(B) the relative roles of the copyright owner and the
transmitting organization in the copyrighted work and
the service made available to the public with respect
to relative creative contribution, technological contribution,
capital investment, cost, and risk.
In establishing such rates and terms, the copyright arbitration
royalty panel may consider the rates and terms under voluntary
license agreements negotiated as provided in paragraphs
(2) and (3). The Librarian of Congress shall also establish
requirements by which copyright owners may receive reasonable
notice of the use of their sound recordings under this
section, and under which records of such use shall be
kept and made available by transmitting organizations
entitled to obtain a statutory license under this subsection.
(5) License agreements voluntarily negotiated at any
time between 1 or more copyright owners of sound recordings
and 1 or more transmitting organizations entitled to obtain
a statutory license under this subsection shall be given
effect in lieu of any determination by a copyright arbitration
royalty panel or decision by the Librarian of Congress.
(6) Publication of a notice of the initiation of voluntary
negotiation proceedings as specified in paragraph (3)
shall be repeated, in accordance with regulations that
the Librarian of Congress shall prescribe, in the first
week of January 2000, and at 2-year intervals thereafter,
except to the extent that different years for the repeating
of such proceedings may be determined in accordance with
paragraph (3). The procedures specified in paragraph (4)
shall be repeated, in accordance with regulations that
the Librarian of Congress shall prescribe, upon filing
of a petition in accordance with section
803(a)(1), during a 60-day period commencing on July
1, 2000, and at 2-year intervals thereafter, except to
the extent that different years for the repeating of such
proceedings may be determined in accordance with paragraph
(3). The procedures specified in paragraph (4) shall be
concluded in accordance with section
802.
(7)(A) Any person who wishes to make a phonorecord of
a sound recording under a statutory license in accordance
with this subsection may do so without infringing the
exclusive right of the copyright owner of the sound recording
under section 106(1) —
(i) by complying with such notice requirements as the
Librarian of Congress shall prescribe by regulation and
by paying royalty fees in accordance with this subsection;
or
(ii) if such royalty fees have not been set, by agreeing
to pay such royalty fees as shall be determined in accordance
with this subsection.
(B) Any royalty payments in arrears shall be made on
or before the 20th day of the month next succeeding the
month in which the royalty fees are set.
(8) If a transmitting organization entitled to make a
phonorecord under this subsection is prevented from making
such phonorecord by reason of the application by the copyright
owner of technical measures that prevent the reproduction
of the sound recording, the copyright owner shall make
available to the transmitting organization the necessary
means for permitting the making of such phonorecord as
permitted under this subsection, if it is technologically
feasible and economically reasonable for the copyright
owner to do so. If the copyright owner fails to do so
in a timely manner in light of the transmitting organization's
reasonable business requirements, the transmitting organization
shall not be liable for a violation of section
1201(a)(1) of this title for engaging in such activities
as are necessary to make such phonorecords as permitted
under this subsection.
(9) Nothing in this subsection annuls, limits, impairs,
or otherwise affects in any way the existence or value
of any of the exclusive rights of the copyright owners
in a sound recording, except as otherwise provided in
this subsection, or in a musical work, including the exclusive
rights to reproduce and distribute a sound recording or
musical work, including by means of a digital phonorecord
delivery, under section 106(1),
106(3), and 115, and
the right to perform publicly a sound recording or musical
work, including by means of a digital audio transmission,
under sections 106(4) and
106(6).
(f)(1) Notwithstanding the provisions of section 106,
and without limiting the application of subsection (b),
it is not an infringement of copyright for a governmental
body or other nonprofit educational institution entitled
under section 110(2) to
transmit a performance or display to make copies or phonorecords
of a work that is in digital form and, solely to the extent
permitted in paragraph (2), of a work that is in analog
form, embodying the performance or display to be used
for making transmissions authorized under section 110(2),
if —
(A) such copies or phonorecords are retained and used
solely by the body or institution that made them, and
no further copies or phonorecords are reproduced from
them, except as authorized under section 110(2); and
(B) such copies or phonorecords are used solely for
transmissions authorized under section 110(2).
(2) This subsection does not authorize the conversion
of print or other analog versions of works into digital
formats, except that such conversion is permitted hereunder,
only with respect to the amount of such works authorized
to be performed or displayed under section 110(2), if —
(A) no digital version of the work is available to the
institution; or
(B) the digital version of the work that is available
to the institution is subject to technological protection
measures that prevent its use for section 110(2).
(g) The transmission program embodied in a copy or phonorecord
made under this section is not subject to protection as
a derivative work under this title except with the express
consent of the owners of copyright in the preexisting
works employed in the program.
§ 113. Scope of exclusive rights in
pictorial, graphic, and sculptural works45
(a) Subject to the provisions of subsections (b) and
(c) of this section, the exclusive right to reproduce
a copyrighted pictorial, graphic, or sculptural work in
copies under section 106,
includes the right to reproduce the work in or on any
kind of article, whether useful or otherwise.
(b) This title does not afford, to the owner of copyright
in a work that portrays a useful article as such, any
greater or lesser rights with respect to the making, distribution,
or display of the useful article so portrayed than those
afforded to such works under the law, whether title 17
or the common law or statutes of a State, in effect on
December 31, 1977, as held applicable and construed by
a court in an action brought under this title.
(c) In the case of a work lawfully reproduced in useful
articles that have been offered for sale or other distribution
to the public, copyright does not include any right to
prevent the making, distribution, or display of pictures
or photographs of such articles in connection with advertisements
or commentaries related to the distribution or display
of such articles, or in connection with news reports.
(d)(1) In a case in which —
(A) a work of visual art has been incorporated in or
made part of a building in such a way that removing the
work from the building will cause the destruction, distortion,
mutilation, or other modification of the work as described
in section 106A(a)(3),
and
(B) the author consented to the installation of the work
in the building either before the effective date set forth
in section 610(a) of the Visual Artists Rights Act of
1990, or in a written instrument executed on or after
such effective date that is signed by the owner of the
building and the author and that specifies that installation
of the work may subject the work to destruction, distortion,
mutilation, or other modification, by reason of its removal,
then the rights conferred by paragraphs (2) and (3) of
section 106A(a) shall
not apply.
(2) If the owner of a building wishes to remove a work
of visual art which is a part of such building and which
can be removed from the building without the destruction,
distortion, mutilation, or other modification of the work
as described in section 106A(a)(3),
the author's rights under paragraphs (2) and (3) of section
106A(a) shall apply unless —
(A) the owner has made a diligent, good faith attempt
without success to notify the author of the owner's intended
action affecting the work of visual art, or
(B) the owner did provide such notice in writing and
the person so notified failed, within 90 days after receiving
such notice, either to remove the work or to pay for its
removal.
For purposes of subparagraph (A), an owner shall be presumed
to have made a diligent, good faith attempt to send notice
if the owner sent such notice by registered mail to the
author at the most recent address of the author that was
recorded with the Register of Copyrights pursuant to paragraph
(3). If the work is removed at the expense of the author,
title to that copy of the work shall be deemed to be in
the author.
(3) The Register of Copyrights shall establish a system
of records whereby any author of a work of visual art
that has been incorporated in or made part of a building,
may record his or her identity and address with the Copyright
Office. The Register shall also establish procedures under
which any such author may update the information so recorded,
and procedures under which owners of buildings may record
with the Copyright Office evidence of their efforts to
comply with this subsection.
§ 114. Scope of exclusive rights in
sound recordings46
(a) The exclusive rights of the owner of copyright in
a sound recording are limited to the rights specified
by clauses (1), (2), (3) and (6) of section
106, and do not include any right of performance under
section 106(4).
(b) The exclusive right of the owner of copyright in
a sound recording under clause (1) of section
106 is limited to the right to duplicate the sound
recording in the form of phonorecords or copies that directly
or indirectly recapture the actual sounds fixed in the
recording. The exclusive right of the owner of copyright
in a sound recording under clause (2) of section
106 is limited to the right to prepare a derivative
work in which the actual sounds fixed in the sound recording
are rearranged, remixed, or otherwise altered in sequence
or quality. The exclusive rights of the owner of copyright
in a sound recording under clauses (1) and (2) of section
106 do not extend to the making or duplication of
another sound recording that consists entirely of an independent
fixation of other sounds, even though such sounds imitate
or simulate those in the copyrighted sound recording.
The exclusive rights of the owner of copyright in a sound
recording under clauses (1), (2), and (3) of section
106 do not apply to sound recordings included in educational
television and radio programs (as defined in section 397
of title 47) distributed or transmitted by or through
public broadcasting entities (as defined by section
118(g)): Provided, That copies or phonorecords
of said programs are not commercially distributed by or
through public broadcasting entities to the general public.
(c) This section does not limit or impair the exclusive
right to perform publicly, by means of a phonorecord,
any of the works specified by section
106(4).
(d) Limitations on Exclusive Right. — Notwithstanding
the provisions of section 106(6) —
(1) Exempt transmissions and retransmissions. — The
performance of a sound recording publicly by means of
a digital audio transmission, other than as a part of
an interactive service, is not an infringement of section
106(6) if the performance is part of —
(A) a nonsubscription broadcast transmission;
(B) a retransmission of a nonsubscription broadcast transmission:
Provided, That, in the case of a retransmission
of a radio station's broadcast transmission —
(i) the radio station's broadcast transmission is not
willfully or repeatedly retransmitted more than a radius
of 150 miles from the site of the radio broadcast transmitter,
however —
(I) the 150 mile limitation under this clause shall not
apply when a nonsubscription broadcast transmission by
a radio station licensed by the Federal Communications
Commission is retransmitted on a non-subscription basis
by a terrestrial broadcast station, terrestrial translator,
or terrestrial repeater licensed by the Federal Communications
Commission; and
(II) in the case of a subscription retransmission of
a non-subscription broadcast retransmission covered by
subclause (I), the 150 mile radius shall be measured from
the transmitter site of such broadcast retransmitter;
(ii) the retransmission is of radio station broadcast
transmissions that are —
(I) obtained by the retransmitter over the air;
(II) not electronically processed by the retransmitter
to deliver separate and discrete signals; and
(III) retransmitted only within the local communities
served by the retransmitter;
(iii) the radio station's broadcast transmission was
being retransmitted to cable systems (as defined in section
111(f)) by a satellite carrier on January 1, 1995,
and that retransmission was being retransmitted by cable
systems as a separate and discrete signal, and the satellite
carrier obtains the radio station's broadcast transmission
in an analog format: Provided, That the broadcast
transmission being retransmitted may embody the programming
of no more than one radio station; or
(iv) the radio station's broadcast transmission is made
by a noncommercial educational broadcast station funded
on or after January 1, 1995, under section 396(k) of the
Communications Act of 1934 (47 U.S.C. 396(k)), consists
solely of noncommercial educational and cultural radio
programs, and the retransmission, whether or not simultaneous,
is a nonsubscription terrestrial broadcast retransmission;
or
(C) a transmission that comes within any of the following
categories —
(i) a prior or simultaneous transmission incidental to
an exempt transmission, such as a feed received by and
then retransmitted by an exempt transmitter: Provided,
That such incidental transmissions do not include any
subscription transmission directly for reception by members
of the public;
(ii) a transmission within a business establishment,
confined to its premises or the immediately surrounding
vicinity;
(iii) a retransmission by any retransmitter, including
a multichannel video programming distributor as defined
in section 602(12) of the Communications Act of 1934 (47
U.S.C. 522 (12)), of a transmission by a transmitter licensed
to publicly perform the sound recording as a part of that
transmission, if the retransmission is simultaneous with
the licensed transmission and authorized by the transmitter;
or
(iv) a transmission to a business establishment for use
in the ordinary course of its business: Provided,
That the business recipient does not retransmit the transmission
outside of its premises or the immediately surrounding
vicinity, and that the transmission does not exceed the
sound recording performance complement. Nothing in this
clause shall limit the scope of the exemption in clause
(ii).
(2) Statutory licensing of certain transmissions. —
The performance of a sound recording publicly by means
of a subscription digital audio transmission not exempt
under paragraph (1), an eligible nonsubscription transmission,
or a transmission not exempt under paragraph (1) that
is made by a preexisting satellite digital audio radio
service shall be subject to statutory licensing, in accordance
with subsection (f) if —
(A)(i) the transmission is not part of an interactive
service;
(ii) except in the case of a transmission to a business
establishment, the transmitting entity does not automatically
and intentionally cause any device receiving the transmission
to switch from one program channel to another; and
(iii) except as provided in section
1002(e), the transmission of the sound recording is
accompanied, if technically feasible, by the information
encoded in that sound recording, if any, by or under the
authority of the copyright owner of that sound recording,
that identifies the title of the sound recording, the
featured recording artist who performs on the sound recording,
and related information, including information concerning
the underlying musical work and its writer;
(B) in the case of a subscription transmission not exempt
under paragraph (1) that is made by a preexisting subscription
service in the same transmission medium used by such service
on July 31, 1998, or in the case of a transmission not
exempt under paragraph (1) that is made by a preexisting
satellite digital audio radio service —
(i) the transmission does not exceed the sound recording
performance complement; and
(ii) the transmitting entity does not cause to be published
by means of an advance program schedule or prior announcement
the titles of the specific sound recordings or phonorecords
embodying such sound recordings to be transmitted; and
(C) in the case of an eligible nonsubscription transmission
or a subscription transmission not exempt under paragraph
(1) that is made by a new subscription service or by a
preexisting subscription service other than in the same
transmission medium used by such service on July 31, 1998 —
(i) the transmission does not exceed the sound recording
performance complement, except that this requirement shall
not apply in the case of a retransmission of a broadcast
transmission if the retransmission is made by a transmitting
entity that does not have the right or ability to control
the programming of the broadcast station making the broadcast
transmission, unless —
(I) the broadcast station makes broadcast transmissions —
(aa) in digital format that regularly exceed the sound
recording performance complement; or
(bb) in analog format, a substantial portion of which,
on a weekly basis, exceed the sound recording performance
complement; and
(II) the sound recording copyright owner or its representative
has notified the transmitting entity in writing that broadcast
transmissions of the copyright owner's sound recordings
exceed the sound recording performance complement as provided
in this clause;
(ii) the transmitting entity does not cause to be published,
or induce or facilitate the publication, by means of an
advance program schedule or prior announcement, the titles
of the specific sound recordings to be transmitted, the
phonorecords embodying such sound recordings, or, other
than for illustrative purposes, the names of the featured
recording artists, except that this clause does not disqualify
a transmitting entity that makes a prior announcement
that a particular artist will be featured within an unspecified
future time period, and in the case of a retransmission
of a broadcast transmission by a transmitting entity that
does not have the right or ability to control the programming
of the broadcast transmission, the requirement of this
clause shall not apply to a prior oral announcement by
the broadcast station, or to an advance program schedule
published, induced, or facilitated by the broadcast station,
if the transmitting entity does not have actual knowledge
and has not received written notice from the copyright
owner or its representative that the broadcast station
publishes or induces or facilitates the publication of
such advance program schedule, or if such advance program
schedule is a schedule of classical music programming
published by the broadcast station in the same manner
as published by that broadcast station on or before September
30, 1998;
(iii) the transmission —
(I) is not part of an archived program of less than 5
hours duration;
(II) is not part of an archived program of 5 hours or
greater in duration that is made available for a period
exceeding 2 weeks;
(III) is not part of a continuous program which is of
less than 3 hours duration; or
(IV) is not part of an identifiable program in which
performances of sound recordings are rendered in a predetermined
order, other than an archived or continuous program, that
is transmitted at —
(aa) more than 3 times in any 2-week period that have
been publicly announced in advance, in the case of a program
of less than 1 hour in duration, or
(bb) more than 4 times in any 2-week period that have
been publicly announced in advance, in the case of a program
of 1 hour or more in duration, except that the requirement
of this subclause shall not apply in the case of a retransmission
of a broadcast transmission by a transmitting entity that
does not have the right or ability to control the programming
of the broadcast transmission, unless the transmitting
entity is given notice in writing by the copyright owner
of the sound recording that the broadcast station makes
broadcast transmissions that regularly violate such requirement;
(iv) the transmitting entity does not knowingly perform
the sound recording, as part of a service that offers
transmissions of visual images contemporaneously with
transmissions of sound recordings, in a manner that is
likely to cause confusion, to cause mistake, or to deceive,
as to the affiliation, connection, or association of the
copyright owner or featured recording artist with the
transmitting entity or a particular product or service
advertised by the transmitting entity, or as to the origin,
sponsorship, or approval by the copyright owner or featured
recording artist of the activities of the transmitting
entity other than the performance of the sound recording
itself;
(v) the transmitting entity cooperates to prevent, to
the extent feasible without imposing substantial costs
or burdens, a transmission recipient or any other person
or entity from automatically scanning the transmitting
entity's transmissions alone or together with transmissions
by other transmitting entities in order to select a particular
sound recording to be transmitted to the transmission
recipient, except that the requirement of this clause
shall not apply to a satellite digital audio service that
is in operation, or that is licensed by the Federal Communications
Commission, on or before July 31, 1998;
(vi) the transmitting entity takes no affirmative steps
to cause or induce the making of a phonorecord by the
transmission recipient, and if the technology used by
the transmitting entity enables the transmitting entity
to limit the making by the transmission recipient of phonorecords
of the transmission directly in a digital format, the
transmitting entity sets such technology to limit such
making of phonorecords to the extent permitted by such
technology;
(vii) phonorecords of the sound recording have been distributed
to the public under the authority of the copyright owner
or the copyright owner authorizes the transmitting entity
to transmit the sound recording, and the transmitting
entity makes the transmission from a phonorecord lawfully
made under the authority of the copyright owner, except
that the requirement of this clause shall not apply to
a retransmission of a broadcast transmission by a transmitting
entity that does not have the right or ability to control
the programming of the broadcast transmission, unless
the transmitting entity is given notice in writing by
the copyright owner of the sound recording that the broadcast
station makes broadcast transmissions that regularly violate
such requirement;
(viii) the transmitting entity accommodates and does
not interfere with the transmission of technical measures
that are widely used by sound recording copyright owners
to identify or protect copyrighted works, and that are
technically feasible of being transmitted by the transmitting
entity without imposing substantial costs on the transmitting
entity or resulting in perceptible aural or visual degradation
of the digital signal, except that the requirement of
this clause shall not apply to a satellite digital audio
service that is in operation, or that is licensed under
the authority of the Federal Communications Commission,
on or before July 31, 1998, to the extent that such service
has designed, developed, or made commitments to procure
equipment or technology that is not compatible with such
technical measures before such technical measures are
widely adopted by sound recording copyright owners; and
(ix) the transmitting entity identifies in textual data
the sound recording during, but not before, the time it
is performed, including the title of the sound recording,
the title of the phonorecord embodying such sound recording,
if any, and the featured recording artist, in a manner
to permit it to be displayed to the transmission recipient
by the device or technology intended for receiving the
service provided by the transmitting entity, except that
the obligation in this clause shall not take effect until
1 year after the date of the enactment of the Digital
Millennium Copyright Act and shall not apply in the case
of a retransmission of a broadcast transmission by a transmitting
entity that does not have the right or ability to control
the programming of the broadcast transmission, or in the
case in which devices or technology intended for receiving
the service provided by the transmitting entity that have
the capability to display such textual data are not common
in the marketplace.
(3) Licenses for transmissions by interactive services. —
(A) No interactive service shall be granted an exclusive
license under section 106(6)
for the performance of a sound recording publicly by means
of digital audio transmission for a period in excess of
12 months, except that with respect to an exclusive license
granted to an interactive service by a licensor that holds
the copyright to 1,000 or fewer sound recordings, the
period of such license shall not exceed 24 months: Provided,
however, That the grantee of such exclusive license
shall be ineligible to receive another exclusive license
for the performance of that sound recording for a period
of 13 months from the expiration of the prior exclusive
license.
(B) The limitation set forth in subparagraph (A) of this
paragraph shall not apply if —
(i) the licensor has granted and there remain in effect
licenses under section 106(6)
for the public performance of sound recordings by means
of digital audio transmission by at least 5 different
interactive services; Provided, however, That each
such license must be for a minimum of 10 percent of the
copyrighted sound recordings owned by the licensor that
have been licensed to interactive services, but in no
event less than 50 sound recordings; or
(ii) the exclusive license is granted to perform publicly
up to 45 seconds of a sound recording and the sole purpose
of the performance is to promote the distribution or performance
of that sound recording.
(C) Notwithstanding the grant of an exclusive or nonexclusive
license of the right of public performance under section
106(6), an interactive service may not publicly perform
a sound recording unless a license has been granted for
the public performance of any copyrighted musical work
contained in the sound recording: Provided, That
such license to publicly perform the copyrighted musical
work may be granted either by a performing rights society
representing the copyright owner or by the copyright owner.
(D) The performance of a sound recording by means of
a retransmission of a digital audio transmission is not
an infringement of section
106(6) if —
(i) the retransmission is of a transmission by an interactive
service licensed to publicly perform the sound recording
to a particular member of the public as part of that transmission;
and
(ii) the retransmission is simultaneous with the licensed
transmission, authorized by the transmitter, and limited
to that particular member of the public intended by the
interactive service to be the recipient of the transmission.
(E) For the purposes of this paragraph —
(i) a “licensor” shall include the licensing
entity and any other entity under any material degree
of common ownership, management, or control that owns
copyrights in sound recordings; and
(ii) a “performing rights society” is an
association or corporation that licenses the public performance
of nondramatic musical works on behalf of the copyright
owner, such as the American Society of Composers, Authors
and Publishers, Broadcast Music, Inc., and SESAC, Inc.
(4) Rights not otherwise limited. —
(A) Except as expressly provided in this section, this
section does not limit or impair the exclusive right to
perform a sound recording publicly by means of a digital
audio transmission under section
106(6).
(B) Nothing in this section annuls or limits in any way —
(i) the exclusive right to publicly perform a musical
work, including by means of a digital audio transmission,
under section 106(4);
(ii) the exclusive rights in a sound recording or the
musical work embodied therein under sections
106(1), 106(2) and 106(3);
or
(iii) any other rights under any other clause of section
106, or remedies available under this title as such
rights or remedies exist either before or after the date
of enactment of the Digital Performance Right in Sound
Recordings Act of 1995.
(C) Any limitations in this section on the exclusive
right under section 106(6)
apply only to the exclusive right under section
106(6) and not to any other exclusive rights under
section 106. Nothing in
this section shall be construed to annul, limit, impair
or otherwise affect in any way the ability of the owner
of a copyright in a sound recording to exercise the rights
under sections 106(1), 106(2)
and 106(3), or to obtain
the remedies available under this title pursuant to such
rights, as such rights and remedies exist either before
or after the date of enactment of the Digital Performance
Right in Sound Recordings Act of 1995.
(e) Authority for Negotiations. —
(1) Notwithstanding any provision of the antitrust laws,
in negotiating statutory licenses in accordance with subsection
(f), any copyright owners of sound recordings and any
entities performing sound recordings affected by this
section may negotiate and agree upon the royalty rates
and license terms and conditions for the performance of
such sound recordings and the proportionate division of
fees paid among copyright owners, and may designate common
agents on a nonexclusive basis to negotiate, agree to,
pay, or receive payments.
(2) For licenses granted under section
106(6), other than statutory licenses, such as for
performances by interactive services or performances that
exceed the sound recording performance complement —
(A) copyright owners of sound recordings affected by
this section may designate common agents to act on their
behalf to grant licenses and receive and remit royalty
payments: Provided, That each copyright owner shall
establish the royalty rates and material license terms
and conditions unilaterally, that is, not in agreement,
combination, or concert with other copyright owners of
sound recordings; and
(B) entities performing sound recordings affected by
this section may designate common agents to act on their
behalf to obtain licenses and collect and pay royalty
fees: Provided, That each entity performing sound
recordings shall determine the royalty rates and material
license terms and conditions unilaterally, that is, not
in agreement, combination, or concert with other entities
performing sound recordings.
(f) Licenses for Certain Nonexempt Transmissions.47
(1)(A) 48 No later than
30 days after the enactment of the Digital Performance
Right in Sound Recordings Act of 1995, the Librarian of
Congress shall cause notice to be published in the Federal
Register of the initiation of voluntary negotiation proceedings
for the purpose of determining reasonable terms and rates
of royalty payments for subscription transmissions by
preexisting subscription services and transmissions by
preexisting satellite digital audio radio services specified
by subsection (d)(2) of this section during the period
beginning on the effective date of such Act and ending
on December 31, 2001, or, if a copyright arbitration royalty
panel is convened, ending 30 days after the Librarian
issues and publishes in the Federal Register an order
adopting the determination of the copyright arbitration
royalty panel or an order setting the terms and rates
(if the Librarian rejects the panel's determination).
Such terms and rates shall distinguish among the different
types of digital audio transmission services then in operation.
Any copyright owners of sound recordings, preexisting
subscription services, or preexisting satellite digital
audio radio services may submit to the Librarian of Congress
licenses covering such subscription transmissions with
respect to such sound recordings. The parties to each
negotiation proceeding shall bear their own costs.
(B) In the absence of license agreements negotiated under
subparagraph (A), during the 60-day period commencing
6 months after publication of the notice specified in
subparagraph (A), and upon the filing of a petition in
accordance with section 803(a)(1),
the Librarian of Congress shall, pursuant to chapter
8, convene a copyright arbitration royalty panel to
determine and publish in the Federal Register a schedule
of rates and terms which, subject to paragraph (3), shall
be binding on all copyright owners of sound recordings
and entities performing sound recordings affected by this
paragraph. In establishing rates and terms for preexisting
subscription services and preexisting satellite digital
audio radio services, in addition to the objectives set
forth in section 801(b)(1),
the copyright arbitration royalty panel may consider the
rates and terms for comparable types of subscription digital
audio transmission services and comparable circumstances
under voluntary license agreements negotiated as provided
in subparagraph (A).
(C)(i) Publication of a notice of the initiation of voluntary
negotiation proceedings as specified in subparagraph (A)
shall be repeated, in accordance with regulations that
the Librarian of Congress shall prescribe —
(I) no later than 30 days after a petition is filed by
any copyright owners of sound recordings, any preexisting
subscription services, or any preexisting satellite digital
audio radio services indicating that a new type of subscription
digital audio transmission service on which sound recordings
are performed is or is about to become operational; and
(II) in the first week of January 2001, and at 5-year
intervals thereafter.
(ii) The procedures specified in subparagraph (B) shall
be repeated, in accordance with regulations that the Librarian
of Congress shall prescribe, upon filing of a petition
in accordance with section
803(a)(1) during a 60-day period commencing —
(I) 6 months after publication of a notice of the initiation
of voluntary negotiation proceedings under subparagraph
(A) pursuant to a petition under clause (i)(I) of this
subparagraph; or
(II) on July 1, 2001, and at 5-year intervals thereafter.
(iii) The procedures specified in subparagraph (B) shall
be concluded in accordance with section
802.
(2)(A) No later than 30 days after the date of the enactment
of the Digital Millennium Copyright Act, the Librarian
of Congress shall cause notice to be published in the
Federal Register of the initiation of voluntary negotiation
proceedings for the purpose of determining reasonable
terms and rates of royalty payments for public performances
of sound recordings by means of eligible nonsubscription
transmissions and transmissions by new subscription services
specified by subsection (d)(2) during the period beginning
on the date of the enactment of such Act and ending on
December 31, 2000, or such other date as the parties may
agree. Such rates and terms shall distinguish among the
different types of eligible nonsubscription transmission
services and new subscription services then in operation
and shall include a minimum fee for each such type of
service. Any copyright owners of sound recordings or any
entities performing sound recordings affected by this
paragraph may submit to the Librarian of Congress licenses
covering such eligible nonsubscription transmissions and
new subscription services with respect to such sound recordings.
The parties to each negotiation proceeding shall bear
their own costs.
(B) In the absence of license agreements negotiated under
subparagraph (A), during the 60-day period commencing
6 months after publication of the notice specified in
subparagraph (A), and upon the filing of a petition in
accordance with section 803(a)(1),
the Librarian of Congress shall, pursuant to chapter
8, convene a copyright arbitration royalty panel to
determine and publish in the Federal Register a schedule
of rates and terms which, subject to paragraph (3), shall
be binding on all copyright owners of sound recordings
and entities performing sound recordings affected by this
paragraph during the period beginning on the date of the
enactment of the Digital Millennium Copyright Act and
ending on December 31, 2000, or such other date as the
parties may agree. Such rates and terms shall distinguish
among the different types of eligible nonsubscription
transmission services then in operation and shall include
a minimum fee for each such type of service, such differences
to be based on criteria including, but not limited to,
the quantity and nature of the use of sound recordings
and the degree to which use of the service may substitute
for or may promote the purchase of phonorecords by consumers.
In establishing rates and terms for transmissions by eligible
nonsubscription services and new subscription services,
the copyright arbitration royalty panel shall establish
rates and terms that most clearly represent the rates
and terms that would have been negotiated in the marketplace
between a willing buyer and a willing seller. In determining
such rates and terms, the copyright arbitration royalty
panel shall base its decision on economic, competitive
and programming information presented by the parties,
including —
(i) whether use of the service may substitute for or
may promote the sales of phonorecords or otherwise may
interfere with or may enhance the sound recording copyright
owner's other streams of revenue from its sound recordings;
and
(ii) the relative roles of the copyright owner and the
transmitting entity in the copyrighted work and the service
made available to the public with respect to relative
creative contribution, technological contribution, capital
investment, cost, and risk.
In establishing such rates and terms, the copyright arbitration
royalty panel may consider the rates and terms for comparable
types of digital audio transmission services and comparable
circumstances under voluntary license agreements negotiated
under subparagraph (A).
(C)(i) Publication of a notice of the initiation of voluntary
negotiation proceedings as specified in subparagraph (A)
shall be repeated in accordance with regulations that
the Librarian of Congress shall prescribe —
(I) no later than 30 days after a petition is filed by
any copyright owners of sound recordings or any eligible
nonsubscription service or new subscription service indicating
that a new type of eligible nonsubscription service or
new subscription service on which sound recordings are
performed is or is about to become operational; and
(II) in the first week of January 2000, and at 2-year
intervals thereafter, except to the extent that different
years for the repeating of such proceedings may be determined
in accordance with subparagraph (A).
(ii) The procedures specified in subparagraph (B) shall
be repeated, in accordance with regulations that the Librarian
of Congress shall prescribe, upon filing of a petition
in accordance with section
803(a)(1) during a 60-day period commencing —
(I) 6 months after publication of a notice of the initiation
of voluntary negotiation proceedings under subparagraph
(A) pursuant to a petition under clause (i)(I); or
(II) on July 1, 2000, and at 2-year intervals thereafter,
except to the extent that different years for the repeating
of such proceedings may be determined in accordance with
subparagraph (A).
(iii) The procedures specified in subparagraph (B) shall
be concluded in accordance with section
802.
(3) License agreements voluntarily negotiated at any
time between 1 or more copyright owners of sound recordings
and 1 or more entities performing sound recordings shall
be given effect in lieu of any determination by a copyright
arbitration royalty panel or decision by the Librarian
of Congress.
(4)(A) The Librarian of Congress shall also establish
requirements by which copyright owners may receive reasonable
notice of the use of their sound recordings under this
section, and under which records of such use shall be
kept and made available by entities performing sound recordings.
(B) Any person who wishes to perform a sound recording
publicly by means of a transmission eligible for statutory
licensing under this subsection may do so without infringing
the exclusive right of the copyright owner of the sound
recording —
(i) by complying with such notice requirements as the
Librarian of Congress shall prescribe by regulation and
by paying royalty fees in accordance with this subsection;
or
(ii) if such royalty fees have not been set, by agreeing
to pay such royalty fees as shall be determined in accordance
with this subsection.
(C) Any royalty payments in arrears shall be made on
or before the twentieth day of the month next succeeding
the month in which the royalty fees are set.
(5)(A) Notwithstanding section 112(e) and the other provisions
of this subsection, the receiving agent may enter into
agreements for the reproduction and performance of sound
recordings under section 112(e) and this section by any
1 or more small commercial webcasters or noncommercial
webcasters during the period beginning on October 28,
1998, and ending on December 31, 2004, that, once published
in the Federal Register pursuant to subparagraph (B),
shall be binding on all copyright owners of sound recordings
and other persons entitled to payment under this section,
in lieu of any determination by a copyright arbitration
royalty panel or decision by the Librarian of Congress.
Any such agreement for small commercial webcasters shall
include provisions for payment of royalties on the basis
of a percentage of revenue or expenses, or both, and include
a minimum fee. Any such agreement may include other terms
and conditions, including requirements by which copyright
owners may receive notice of the use of their sound recordings
and under which records of such use shall be kept and
made available by small commercial webcasters or noncommercial
webcasters. The receiving agent shall be under no obligation
to negotiate any such agreement. The receiving agent shall
have no obligation to any copyright owner of sound recordings
or any other person entitled to payment under this section
in negotiating any such agreement, and no liability to
any copyright owner of sound recordings or any other person
entitled to payment under this section for having entered
into such agreement.
(B) The Copyright Office shall cause to be published
in the Federal Register any agreement entered into pursuant
to subparagraph (A). Such publication shall include a
statement containing the substance of subparagraph (C).
Such agreements shall not be included in the Code of Federal
Regulations. Thereafter, the terms of such agreement shall
be available, as an option, to any small commercial webcaster
or noncommercial webcaster meeting the eligibility conditions
of such agreement.
(C) Neither subparagraph (A) nor any provisions of any
agreement entered into pursuant to subparagraph (A), including
any rate structure, fees, terms, conditions, or notice
and recordkeeping requirements set forth therein, shall
be admissible as evidence or otherwise taken into account
in any administrative, judicial, or other government proceeding
involving the setting or adjustment of the royalties payable
for the public performance or reproduction in ephemeral
phonorecords or copies of sound recordings, the determination
of terms or conditions related thereto, or the establishment
of notice or recordkeeping requirements by the Librarian
of Congress under paragraph (4) or section 112(e)(4).
It is the intent of Congress that any royalty rates, rate
structure, definitions, terms, conditions, or notice and
recordkeeping requirements, included in such agreements
shall be considered as a compromise motivated by the unique
business, economic and political circumstances of small
webcasters, copyright owners, and performers rather than
as matters that would have been negotiated in the marketplace
between a willing buyer and a willing seller, or otherwise
meet the objectives set forth in section
801(b).
(D) Nothing in the Small Webcaster Settlement Act of
2002 or any agreement entered into pursuant to subparagraph
(A) shall be taken into account by the United States Court
of Appeals for the District of Columbia Circuit in its
review of the determination by the Librarian of Congress
of July 8, 2002, of rates and terms for the digital performance
of sound recordings and ephemeral recordings, pursuant
to sections 112 and 114.
(E) As used in this paragraph —
(i) the term “noncommercial webcaster” means
a webcaster that —
(I) is exempt from taxation under section 501 of the
Internal Revenue Code of 1986 (26 U.S.C. 501);
(II) has applied in good faith to the Internal Revenue
Service for exemption from taxation under section 501
of the Internal Revenue Code and has a commercially reasonable
expectation that such exemption shall be granted; or
(III) is operated by a State or possession or any governmental
entity or subordinate thereof, or by the United States
or District of Columbia, for exclusively public purposes;
(ii) the term “receiving agent” shall have
the meaning given that term in section 261.2 of title
37, Code of Federal Regulations, as published in the Federal
Register on July 8, 2002; and
(iii) the term “webcaster” means a person
or entity that has obtained a compulsory license under
section 112 or 114 and the implementing regulations therefor
to make eligible nonsubscription transmissions and ephemeral
recordings.
(F) The authority to make settlements pursuant to subparagraph
(A) shall expire December 15, 2002, except with respect
to noncommercial webcasters for whom the authority shall
expire May 31, 2003.
(g) Proceeds from Licensing of Transmissions. —
(1) Except in the case of a transmission licensed under
a statutory license in accordance with subsection (f)
of this section —
(A) a featured recording artist who performs on a sound
recording that has been licensed for a transmission shall
be entitled to receive payments from the copyright owner
of the sound recording in accordance with the terms of
the artist's contract; and
(B) a nonfeatured recording artist who performs on a
sound recording that has been licensed for a transmission
shall be entitled to receive payments from the copyright
owner of the sound recording in accordance with the terms
of the nonfeatured recording artist's applicable contract
or other applicable agreement.
(2) An agent designated to distribute receipts from the
licensing of transmissions in accordance with subsection
(f) shall distribute such receipts as follows:
(A) 50 percent of the receipts shall be paid to the
copyright owner of the exclusive right under section 106(6)
of this title to publicly perform a sound recording by
means of a digital audio transmission.
(B) 2 ½ percent of the receipts shall be deposited
in an escrow account managed by an independent administrator
jointly appointed by copyright owners of sound recordings
and the American Federation of Musicians (or any successor
entity) to be distributed to nonfeatured musicians (whether
or not members of the American Federation of Musicians)
who have performed on sound recordings.
(C) 2 ½ percent of the receipts shall be deposited
in an escrow account managed by an independent administrator
jointly appointed by copyright owners of sound recordings
and the American Federation of Television and Radio Artists
(or any successor entity) to be distributed to nonfeatured
vocalists (whether or not members of the American Federation
of Television and Radio Artists) who have performed on
sound recordings.
(D) 45 percent of the receipts shall be paid, on a per
sound recording basis, to the recording artist or artists
featured on such sound recording (or the persons conveying
rights in the artists' performance in the sound recordings).
(3) A nonprofit agent designated to distribute receipts
from the licensing of transmissions in accordance with
subsection (f) may deduct from any of its receipts, prior
to the distribution of such receipts to any person or
entity entitled thereto other than copyright owners and
performers who have elected to receive royalties from
another designated agent and have notified such nonprofit
agent in writing of such election, the reasonable costs
of such agent incurred after November 1, 1995, in —
(A) the administration of the collection, distribution,
and calculation of the royalties;
(B) the settlement of disputes relating to the collection
and calculation of the royalties; and
(C) the licensing and enforcement of rights with respect
to the making of ephemeral recordings and performances
subject to licensing under section 112 and this section,
including those incurred in participating in negotiations
or arbitration proceedings under section 112 and this
section, except that all costs incurred relating to the
section 112 ephemeral recordings right may only be deducted
from the royalties received pursuant to section 112.
(4) Notwithstanding paragraph (3), any designated agent
designated to distribute receipts from the licensing of
transmissions in accordance with subsection (f) may deduct
from any of its receipts, prior to the distribution of
such receipts, the reasonable costs identified in paragraph
(3) of such agent incurred after November 1, 1995, with
respect to such copyright owners and performers who have
entered with such agent a contractual relationship that
specifies that such costs may be deducted from such royalty
receipts.
(h) Licensing to Affiliates. —
(1) If the copyright owner of a sound recording licenses
an affiliated entity the right to publicly perform a sound
recording by means of a digital audio transmission under
section 106(6), the copyright
owner shall make the licensed sound recording available
under section 106(6) on
no less favorable terms and conditions to all bona fide
entities that offer similar services, except that, if
there are material differences in the scope of the requested
license with respect to the type of service, the particular
sound recordings licensed, the frequency of use, the number
of subscribers served, or the duration, then the copyright
owner may establish different terms and conditions for
such other services.
(2) The limitation set forth in paragraph (1) of this
subsection shall not apply in the case where the copyright
owner of a sound recording licenses —
(A) an interactive service; or
(B) an entity to perform publicly up to 45 seconds of
the sound recording and the sole purpose of the performance
is to promote the distribution or performance of that
sound recording.
(i) No Effect on Royalties for Underlying Works. — License
fees payable for the public performance of sound recordings
under section 106(6) shall
not be taken into account in any administrative, judicial,
or other governmental proceeding to set or adjust the
royalties payable to copyright owners of musical works
for the public performance of their works. It is the intent
of Congress that royalties payable to copyright owners
of musical works for the public performance of their works
shall not be diminished in any respect as a result of
the rights granted by section
106(6).
(j) Definitions. — As used
in this section, the following terms have the following
meanings:
(l) An “affiliated entity” is an entity engaging
in digital audio transmissions covered by section
106(6), other than an interactive service, in which
the licensor has any direct or indirect partnership or
any ownership interest amounting to 5 percent or more
of the outstanding voting or non-voting stock.
(2) An “archived program” is a predetermined
program that is available repeatedly on the demand of
the transmission recipient and that is performed in the
same order from the beginning, except that an archived
program shall not include a recorded event or broadcast
transmission that makes no more than an incidental use
of sound recordings, as long as such recorded event or
broadcast transmission does not contain an entire sound
recording or feature a particular sound recording.
(3) A “broadcast” transmission is a transmission
made by a terrestrial broadcast station licensed as such
by the Federal Communications Commission.
(4) A “continuous program” is a predetermined
program that is continuously performed in the same order
and that is accessed at a point in the program that is
beyond the control of the transmission recipient.
(5) A “digital audio transmission” is a digital
transmission as defined in section
101, that embodies the transmission of a sound recording.
This term does not include the transmission of any audiovisual
work.
(6) An “eligible nonsubscription transmission”
is a noninteractive nonsubscription digital audio transmission
not exempt under subsection (d)(1) that is made as part
of a service that provides audio programming consisting,
in whole or in part, of performances of sound recordings,
including retransmissions of broadcast transmissions,
if the primary purpose of the service is to provide to
the public such audio or other entertainment programming,
and the primary purpose of the service is not to sell,
advertise, or promote particular products or services
other than sound recordings, live concerts, or other music-related
events.
(7) An “interactive service” is one that
enables a member of the public to receive a transmission
of a program specially created for the recipient, or on
request, a transmission of a particular sound recording,
whether or not as part of a program, which is selected
by or on behalf of the recipient. The ability of individuals
to request that particular sound recordings be performed
for reception by the public at large, or in the case of
a subscription service, by all subscribers of the service,
does not make a service interactive, if the programming
on each channel of the service does not substantially
consist of sound recordings that are performed within
1 hour of the request or at a time designated by either
the transmitting entity or the individual making such
request. If an entity offers both interactive and noninteractive
services (either concurrently or at different times),
the noninteractive component shall not be treated as part
of an interactive service.
(8) A “new subscription service” is a service
that performs sound recordings by means of noninteractive
subscription digital audio transmissions and that is not
a preexisting subscription service or a preexisting satellite
digital audio radio service.
(9) A “nonsubscription” transmission is any
transmission that is not a subscription transmission.
(10) A “preexisting satellite digital audio radio
service” is a subscription satellite digital audio
radio service provided pursuant to a satellite digital
audio radio service license issued by the Federal Communications
Commission on or before July 31, 1998, and any renewal
of such license to the extent of the scope of the original
license, and may include a limited number of sample channels
representative of the subscription service that are made
available on a nonsubscription basis in order to promote
the subscription service.
(11) A “preexisting subscription service”
is a service that performs sound recordings by means of
noninteractive audio-only subscription digital audio transmissions,
which was in existence and was making such transmissions
to the public for a fee on or before July 31, 1998, and
may include a limited number of sample channels representative
of the subscription service that are made available on
a nonsubscription basis in order to promote the subscription
service.
(12) A “retransmission” is a further transmission
of an initial transmission, and includes any further retransmission
of the same transmission. Except as provided in this section,
a transmission qualifies as a “retransmission”
only if it is simultaneous with the initial transmission.
Nothing in this definition shall be construed to exempt
a transmission that fails to satisfy a separate element
required to qualify for an exemption under section
114(d)(1).
(13) The “sound recording performance complement”
is the transmission during any 3-hour period, on a particular
channel used by a transmitting entity, of no more than —
(A) 3 different selections of sound recordings from any
one phonorecord lawfully distributed for public performance
or sale in the United States, if no more than 2 such selections
are transmitted consecutively; or
(B) 4 different selections of sound recordings —
(i) by the same featured recording artist; or
(ii) from any set or compilation of phonorecords lawfully
distributed together as a unit for public performance
or sale in the United States,
if no more than three such selections are transmitted
consecutively:
Provided, That the transmission of selections
in excess of the numerical limits provided for in clauses
(A) and (B) from multiple phonorecords shall nonetheless
qualify as a sound recording performance complement if
the programming of the multiple phonorecords was not willfully
intended to avoid the numerical limitations prescribed
in such clauses.
(14) A “subscription” transmission is a transmission
that is controlled and limited to particular recipients,
and for which consideration is required to be paid or
otherwise given by or on behalf of the recipient to receive
the transmission or a package of transmissions including
the transmission.
(15) A “transmission” is either an initial
transmission or a retransmission.
§ 115. Scope of exclusive rights in
nondramatic musical works: Compulsory license for making
and distributing phonorecords49
In the case of nondramatic musical works, the exclusive
rights provided by clauses (1) and (3) of section
106, to make and to distribute phonorecords of such
works, are subject to compulsory licensing under the conditions
specified by this section.
(a) Availability and Scope of Compulsory License. —
(1) When phonorecords of a nondramatic musical work have
been distributed to the public in the United States under
the authority of the copyright owner, any other person,
including those who make phonorecords or digital phonorecord
deliveries, may, by complying with the provisions of this
section, obtain a compulsory license to make and distribute
phonorecords of the work. A person may obtain a compulsory
license only if his or her primary purpose in making phonorecords
is to distribute them to the public for private use, including
by means of a digital phonorecord delivery. A person may
not obtain a compulsory license for use of the work in
the making of phonorecords duplicating a sound recording
fixed by another, unless:
(i) such sound recording was fixed lawfully; and
(ii) the making of the phonorecords was authorized by
the owner of copyright in the sound recording or, if the
sound recording was fixed before February 15, 1972, by
any person who fixed the sound recording pursuant to an
express license from the owner of the copyright in the
musical work or pursuant to a valid compulsory license
for use of such work in a sound recording.
(2) A compulsory license includes the privilege of making
a musical arrangement of the work to the extent necessary
to conform it to the style or manner of interpretation
of the performance involved, but the arrangement shall
not change the basic melody or fundamental character of
the work, and shall not be subject to protection as a
derivative work under this title, except with the express
consent of the copyright owner.
(b) Notice of Intention to Obtain Compulsory License. —
(1) Any person who wishes to obtain a compulsory license
under this section shall, before or within thirty days
after making, and before distributing any phonorecords
of the work, serve notice of intention to do so on the
copyright owner. If the registration or other public records
of the Copyright Office do not identify the copyright
owner and include an address at which notice can be served,
it shall be sufficient to file the notice of intention
in the Copyright Office. The notice shall comply, in form,
content, and manner of service, with requirements that
the Register of Copyrights shall prescribe by regulation.
(2) Failure to serve or file the notice required by clause
(1) forecloses the possibility of a compulsory license
and, in the absence of a negotiated license, renders the
making and distribution of phonorecords actionable as
acts of infringement under section
501 and fully subject to the remedies provided by
sections 502 through 506
and 509.
(c) Royalty Payable under Compulsory License.50 —
(1) To be entitled to receive royalties under a compulsory
license, the copyright owner must be identified in the
registration or other public records of the Copyright
Office. The owner is entitled to royalties for phonorecords
made and distributed after being so identified, but is
not entitled to recover for any phonorecords previously
made and distributed.
(2) Except as provided by clause (1), the royalty under
a compulsory license shall be payable for every phonorecord
made and distributed in accordance with the license. For
this purpose, and other than as provided in paragraph
(3), a phonorecord is considered “distributed”
if the person exercising the compulsory license has voluntarily
and permanently parted with its possession. With respect
to each work embodied in the phonorecord, the royalty
shall be either two and three-fourths cents, or one-half
of one cent per minute of playing time or fraction thereof,
whichever amount is larger.51
(3)(A) A compulsory license under this section includes
the right of the compulsory licensee to distribute or
authorize the distribution of a phonorecord of a nondramatic
musical work by means of a digital transmission which
constitutes a digital phonorecord delivery, regardless
of whether the digital transmission is also a public performance
of the sound recording under section
106(6) of this title or of any nondramatic musical
work embodied therein under section
106(4) of this title. For every digital phonorecord
delivery by or under the authority of the compulsory licensee —
(i) on or before December 31, 1997, the royalty payable
by the compulsory licensee shall be the royalty prescribed
under paragraph (2) and chapter
8 of this title; and
(ii) on or after January 1, 1998, the royalty payable
by the compulsory licensee shall be the royalty prescribed
under subparagraphs (B) through (F) and chapter
8 of this title.
(B) Notwithstanding any provision of the antitrust laws,
any copyright owners of nondramatic musical works and
any persons entitled to obtain a compulsory license under
subsection (a)(1) may negotiate and agree upon the terms
and rates of royalty payments under this paragraph and
the proportionate division of fees paid among copyright
owners, and may designate common agents to negotiate,
agree to, pay or receive such royalty payments. Such authority
to negotiate the terms and rates of royalty payments includes,
but is not limited to, the authority to negotiate the
year during which the royalty rates prescribed under subparagraphs
(B) through (F) and chapter 8
of this title shall next be determined.
(C) During the period of June 30, 1996, through December
31, 1996, the Librarian of Congress shall cause notice
to be published in the Federal Register of the initiation
of voluntary negotiation proceedings for the purpose of
determining reasonable terms and rates of royalty payments
for the activities specified by subparagraph (A) during
the period beginning January 1, 1998, and ending on the
effective date of any new terms and rates established
pursuant to subparagraph (C), (D) or (F), or such other
date (regarding digital phonorecord deliveries) as the
parties may agree. Such terms and rates shall distinguish
between (i) digital phonorecord deliveries where the reproduction
or distribution of a phonorecord is incidental to the
transmission which constitutes the digital phonorecord
delivery, and (ii) digital phonorecord deliveries in general.
Any copyright owners of nondramatic musical works and
any persons entitled to obtain a compulsory license under
subsection (a)(1) may submit to the Librarian of Congress
licenses covering such activities. The parties to each
negotiation proceeding shall bear their own costs.
(D) In the absence of license agreements negotiated under
subparagraphs (B) and (C), upon the filing of a petition
in accordance with section
803(a)(1), the Librarian of Congress shall, pursuant
to chapter 8, convene a copyright
arbitration royalty panel to determine a schedule of rates
and terms which, subject to subparagraph (E), shall be
binding on all copyright owners of nondramatic musical
works and persons entitled to obtain a compulsory license
under subsection (a)(1) during the period beginning January
1, 1998, and ending on the effective date of any new terms
and rates established pursuant to subparagraph (C), (D)
or (F), or such other date (regarding digital phonorecord
deliveries) as may be determined pursuant to subparagraphs
(B) and (C). Such terms and rates shall distinguish between
(i) digital phonorecord deliveries where the reproduction
or distribution of a phonorecord is incidental to the
transmission which constitutes the digital phonorecord
delivery, and (ii) digital phonorecord deliveries in general.
In addition to the objectives set forth in section
801(b)(1), in establishing such rates and terms, the
copyright arbitration royalty panel may consider rates
and terms under voluntary license agreements negotiated
as provided in subparagraphs (B) and (C). The royalty
rates payable for a compulsory license for a digital phonorecord
delivery under this section shall be established de novo
and no precedential effect shall be given to the amount
of the royalty payable by a compulsory licensee for digital
phonorecord deliveries on or before December 31, 1997.
The Librarian of Congress shall also establish requirements
by which copyright owners may receive reasonable notice
of the use of their works under this section, and under
which records of such use shall be kept and made available
by persons making digital phonorecord deliveries.
(E)(i) License agreements voluntarily negotiated at any
time between one or more copyright owners of nondramatic
musical works and one or more persons entitled to obtain
a compulsory license under subsection (a)(1) shall be
given effect in lieu of any determination by the Librarian
of Congress. Subject to clause (ii), the royalty rates
determined pursuant to subparagraph (C), (D) or (F) shall
be given effect in lieu of any contrary royalty rates
specified in a contract pursuant to which a recording
artist who is the author of a nondramatic musical work
grants a license under that person's exclusive rights
in the musical work under paragraphs (1) and (3) of section
106 or commits another person to grant a license in
that musical work under paragraphs (1) and (3) of section
106, to a person desiring to fix in a tangible medium
of expression a sound recording embodying the musical
work.
(ii) The second sentence of clause (i) shall not apply
to —
(I) a contract entered into on or before June 22, 1995
and not modified thereafter for the purpose of reducing
the royalty rates determined pursuant to subparagraph
(C), (D) or (F) or of increasing the number of musical
works within the scope of the contract covered by the
reduced rates, except if a contract entered into on or
before June 22, 1995, is modified thereafter for the purpose
of increasing the number of musical works within the scope
of the contract, any contrary royalty rates specified
in the contract shall be given effect in lieu of royalty
rates determined pursuant to subparagraph (C), (D) or
(F) for the number of musical works within the scope of
the contract as of June 22, 1995; and
(II) a contract entered into after the date that the
sound recording is fixed in a tangible medium of expression
substantially in a form intended for commercial release,
if at the time the contract is entered into, the recording
artist retains the right to grant licenses as to the musical
work under paragraphs (1) and (3) of section
106.
(F) The procedures specified in subparagraphs (C) and
(D) shall be repeated and concluded, in accordance with
regulations that the Librarian of Congress shall prescribe,
in each fifth calendar year after 1997, except to the
extent that different years for the repeating and concluding
of such proceedings may be determined in accordance with
subparagraphs (B) and (C).
(G) Except as provided in section
1002(e) of this title, a digital phonorecord delivery
licensed under this paragraph shall be accompanied by
the information encoded in the sound recording, if any,
by or under the authority of the copyright owner of that
sound recording, that identifies the title of the sound
recording, the featured recording artist who performs
on the sound recording, and related information, including
information concerning the underlying musical work and
its writer.
(H)(i) A digital phonorecord delivery of a sound recording
is actionable as an act of infringement under section
501, and is fully subject to the remedies provided
by sections 502 through
506 and section
509, unless —
(I) the digital phonorecord delivery has been authorized
by the copyright owner of the sound recording; and
(II) the owner of the copyright in the sound recording
or the entity making the digital phonorecord delivery
has obtained a compulsory license under this section or
has otherwise been authorized by the copyright owner of
the musical work to distribute or authorize the distribution,
by means of a digital phonorecord delivery, of each musical
work embodied in the sound recording.
(ii) Any cause of action under this subparagraph shall
be in addition to those available to the owner of the
copyright in the nondramatic musical work under subsection
(c)(6) and section 106(4)
and the owner of the copyright in the sound recording
under section 106(6).
(I) The liability of the copyright owner of a sound recording
for infringement of the copyright in a nondramatic musical
work embodied in the sound recording shall be determined
in accordance with applicable law, except that the owner
of a copyright in a sound recording shall not be liable
for a digital phonorecord delivery by a third party if
the owner of the copyright in the sound recording does
not license the distribution of a phonorecord of the nondramatic
musical work.
(J) Nothing in section 1008
shall be construed to prevent the exercise of the rights
and remedies allowed by this paragraph, paragraph (6),
and chapter 5 in the event
of a digital phonorecord delivery, except that no action
alleging infringement of copyright may be brought under
this title against a manufacturer, importer or distributor
of a digital audio recording device, a digital audio recording
medium, an analog recording device, or an analog recording
medium, or against a consumer, based on the actions described
in such section.
(K) Nothing in this section annuls or limits
(i) the exclusive right to publicly perform a sound recording
or the musical work embodied therein, including by means
of a digital transmission, under sections
106(4) and 106(6),
(ii) except for compulsory licensing under the conditions
specified by this section, the exclusive rights to reproduce
and distribute the sound recording and the musical work
embodied therein under sections
106(1) and 106(3),
including by means of a digital phonorecord delivery,
or (iii) any other rights under any other provision of
section 106, or remedies
available under this title, as such rights or remedies
exist either before or after the date of enactment of
the Digital Performance Right in Sound Recordings Act
of 1995.
(L) The provisions of this section concerning digital
phonorecord deliveries shall not apply to any exempt transmissions
or retransmissions under section
114(d)(1). The exemptions created in section
114(d)(1) do not expand or reduce the rights of copyright
owners under section 106(1)
through (5) with respect to such transmissions and retransmissions.
(4) A compulsory license under this section includes
the right of the maker of a phonorecord of a nondramatic
musical work under subsection (a)(1) to distribute or
authorize distribution of such phonorecord by rental,
lease, or lending (or by acts or practices in the nature
of rental, lease, or lending). In addition to any royalty
payable under clause (2) and chapter
8 of this title, a royalty shall be payable by the
compulsory licensee for every act of distribution of a
phonorecord by or in the nature of rental, lease, or lending,
by or under the authority of the compulsory licensee.
With respect to each nondramatic musical work embodied
in the phonorecord, the royalty shall be a proportion
of the revenue received by the compulsory licensee from
every such act of distribution of the phonorecord under
this clause equal to the proportion of the revenue received
by the compulsory licensee from distribution of the phonorecord
under clause (2) that is payable by a compulsory licensee
under that clause and under chapter
8. The Register of Copyrights shall issue regulations
to carry out the purpose of this clause.
(5) Royalty payments shall be made on or before the twentieth
day of each month and shall include all royalties for
the month next preceding. Each monthly payment shall be
made under oath and shall comply with requirements that
the Register of Copyrights shall prescribe by regulation.
The Register shall also prescribe regulations under which
detailed cumulative annual statements of account, certified
by a certified public accountant, shall be filed for every
compulsory license under this section. The regulations
covering both the monthly and the annual statements of
account shall prescribe the form, content, and manner
of certification with respect to the number of records
made and the number of records distributed.
(6) If the copyright owner does not receive the monthly
payment and the monthly and annual statements of account
when due, the owner may give written notice to the licensee
that, unless the default is remedied within thirty days
from the date of the notice, the compulsory license will
be automatically terminated. Such termination renders
either the making or the distribution, or both, of all
phonorecords for which the royalty has not been paid,
actionable as acts of infringement under section
501 and fully subject to the remedies provided by
sections 502 through 506
and 509.
(d) Definition. — As used
in this section, the following term has the following
meaning: A “digital phonorecord delivery”
is each individual delivery of a phonorecord by digital
transmission of a sound recording which results in a specifically
identifiable reproduction by or for any transmission recipient
of a phonorecord of that sound recording, regardless of
whether the digital transmission is also a public performance
of the sound recording or any nondramatic musical work
embodied therein. A digital phonorecord delivery does
not result from a real-time, non-interactive subscription
transmission of a sound recording where no reproduction
of the sound recording or the musical work embodied therein
is made from the inception of the transmission through
to its receipt by the transmission recipient in order
to make the sound recording audible.
§ 116. Negotiated licenses for public
performances by means of coin-operated phonorecord players52
(a) Applicability of Section. — This
section applies to any nondramatic musical work embodied
in a phonorecord.
(b) Negotiated Licenses. —
(1) Authority for negotiations. — Any
owners of copyright in works to which this section applies
and any operators of coin-operated phonorecord players
may negotiate and agree upon the terms and rates of royalty
payments for the performance of such works and the proportionate
division of fees paid among copyright owners, and may
designate common agents to negotiate, agree to, pay, or
receive such royalty payments.
(2) Arbitration. — Parties
not subject to such a negotiation, may determine, by arbitration
in accordance with the provisions of chapter
8, the terms and rates and the division of fees described
in paragraph (1).
(c) License Agreements Superior to Copyright Arbitration
Royalty Panel Determinations. — License
agreements between one or more copyright owners and one
or more operators of coin-operated phonorecord players,
which are negotiated in accordance with subsection (b),
shall be given effect in lieu of any otherwise applicable
determination by a copyright arbitration royalty panel.
(d) Definitions. — As used
in this section, the following terms mean the following:
(1) A “coin-operated phonorecord player”
is a machine or device that —
(A) is employed solely for the performance of nondramatic
musical works by means of phonorecords upon being activated
by the insertion of coins, currency, tokens, or other
monetary units or their equivalent;
(B) is located in an establishment making no direct or
indirect charge for admission;
(C) is accompanied by a list which is comprised of the
titles of all the musical works available for performance
on it, and is affixed to the phonorecord player or posted
in the establishment in a prominent position where it
can be readily examined by the public; and
(D) affords a choice of works available for performance
and permits the choice to be made by the patrons of the
establishment in which it is located.
(2) An “operator” is any person who, alone
or jointly with others —
(A) owns a coin-operated phonorecord player;
(B) has the power to make a coin-operated phonorecord
player available for placement in an establishment for
purposes of public performance; or
(C) has the power to exercise primary control over the
selection of the musical works made available for public
performance on a coin-operated phonorecord player.
§ 117. Limitations on exclusive rights:
Computer programs53
(a) Making of Additional Copy or Adaptation by
Owner of Copy. — Notwithstanding
the provisions of section 106,
it is not an infringement for the owner of a copy of a
computer program to make or authorize the making of another
copy or adaptation of that computer program provided:
(1) that such a new copy or adaptation is created as
an essential step in the utilization of the computer program
in conjunction with a machine and that it is used in no
other manner, or
(2) that such new copy or adaptation is for archival
purposes only and that all archival copies are destroyed
in the event that continued possession of the computer
program should cease to be rightful.
(b) Lease, Sale, or Other Transfer of Additional
Copy or Adaptation. — Any exact
copies prepared in accordance with the provisions of this
section may be leased, sold, or otherwise transferred,
along with the copy from which such copies were prepared,
only as part of the lease, sale, or other transfer of
all rights in the program. Adaptations so prepared may
be transferred only with the authorization of the copyright
owner.
(c) Machine Maintenance or Repair. — Notwithstanding
the provisions of section 106,
it is not an infringement for the owner or lessee of a
machine to make or authorize the making of a copy of a
computer program if such copy is made solely by virtue
of the activation of a machine that lawfully contains
an authorized copy of the computer program, for purposes
only of maintenance or repair of that machine, if —
(1) such new copy is used in no other manner and is destroyed
immediately after the maintenance or repair is completed;
and
(2) with respect to any computer program or part thereof
that is not necessary for that machine to be activated,
such program or part thereof is not accessed or used other
than to make such new copy by virtue of the activation
of the machine.
(d) Definitions. — For purposes
of this section —
(1) the “maintenance” of a machine is the
servicing of the machine in order to make it work in accordance
with its original specifications and any changes to those
specifications authorized for that machine; and
(2) the “repair” of a machine is the restoring
of the machine to the state of working in accordance with
its original specifications and any changes to those specifications
authorized for that machine.
§ 118. Scope of exclusive rights:
Use of certain works in connection with noncommercial broadcasting54
(a) The exclusive rights provided by section
106 shall, with respect to the works specified by
subsection (b) and the activities specified by subsection
(d), be subject to the conditions and limitations prescribed
by this section.
(b) Notwithstanding any provision of the antitrust laws,
any owners of copyright in published nondramatic musical
works and published pictorial, graphic, and sculptural
works and any public broadcasting entities, respectively,
may negotiate and agree upon the terms and rates of royalty
payments and the proportionate division of fees paid among
various copyright owners, and may designate common agents
to negotiate, agree to, pay, or receive payments.
(1) Any owner of copyright in a work specified in this
subsection or any public broadcasting entity may submit
to the Librarian of Congress proposed licenses covering
such activities with respect to such works. The Librarian
of Congress shall proceed on the basis of the proposals
submitted as well as any other relevant information. The
Librarian of Congress shall permit any interested party
to submit information relevant to such proceedings.
(2) License agreements voluntarily negotiated at any
time between one or more copyright owners and one or more
public broadcasting entities shall be given effect in
lieu of any determination by the Librarian of Congress:
Provided, That copies of such agreements are filed
in the Copyright Office within thirty days of execution
in accordance with regulations that the Register of Copyrights
shall prescribe.
(3) In the absence of license agreements negotiated under
paragraph (2), the Librarian of Congress shall, pursuant
to chapter 8, convene a copyright
arbitration royalty panel to determine and publish in
the Federal Register a schedule of rates and terms which,
subject to paragraph (2), shall be binding on all owners
of copyright in works specified by this subsection and
public broadcasting entities, regardless of whether such
copyright owners have submitted proposals to the Librarian
of Congress. In establishing such rates and terms the
copyright arbitration royalty panel may consider the rates
for comparable circumstances under voluntary license agreements
negotiated as provided in paragraph (2). The Librarian
of Congress shall also establish requirements by which
copyright owners may receive reasonable notice of the
use of their works under this section, and under which
records of such use shall be kept by public broadcasting
entities.
(c) The initial procedure specified in subsection (b)
shall be repeated and concluded between June 30 and December
31, 1997, and at five-year intervals thereafter, in accordance
with regulations that the Librarian of Congress shall
prescribe.
(d) Subject to the terms of any voluntary license agreements
that have been negotiated as provided by subsection (b)
(2), a public broadcasting entity may, upon compliance
with the provisions of this section, including the rates
and terms established by a copyright arbitration royalty
panel under subsection (b) (3), engage in the following
activities with respect to published nondramatic musical
works and published pictorial, graphic, and sculptural
works:
(1) performance or display of a work by or in the course
of a transmission made by a noncommercial educational
broadcast station referred to in subsection (g); and
(2) production of a transmission program, reproduction
of copies or phonorecords of such a transmission program,
and distribution of such copies or phonorecords, where
such production, reproduction, or distribution is made
by a nonprofit institution or organization solely for
the purpose of transmissions specified in paragraph (1);
and
(3) the making of reproductions by a governmental body
or a nonprofit institution of a transmission program simultaneously
with its transmission as specified in paragraph (1), and
the performance or display of the contents of such program
under the conditions specified by paragraph (1) of section
110, but only if the reproductions are used for performances
or displays for a period of no more than seven days from
the date of the transmission specified in paragraph (1),
and are destroyed before or at the end of such period.
No person supplying, in accordance with paragraph (2),
a reproduction of a transmission program to governmental
bodies or nonprofit institutions under this paragraph
shall have any liability as a result of failure of such
body or institution to destroy such reproduction: Provided,
That it shall have notified such body or institution of
the requirement for such destruction pursuant to this
paragraph: And provided further, That if such body
or institution itself fails to destroy such reproduction
it shall be deemed to have infringed.
(e) Except as expressly provided in this subsection,
this section shall have no applicability to works other
than those specified in subsection (b). Owners of copyright
in nondramatic literary works and public broadcasting
entities may, during the course of voluntary negotiations,
agree among themselves, respectively, as to the terms
and rates of royalty payments without liability under
the antitrust laws. Any such terms and rates of royalty
payments shall be effective upon filing in the Copyright
Office, in accordance with regulations that the Register
of Copyrights shall prescribe.
(f) Nothing in this section shall be construed to permit,
beyond the limits of fair use as provided by section
107, the unauthorized dramatization of a nondramatic
musical work, the production of a transmission program
drawn to any substantial extent from a published compilation
of pictorial, graphic, or sculptural works, or the unauthorized
use of any portion of an audiovisual work.
(g) As used in this section, the term “public broadcasting
entity” means a noncommercial educational broadcast
station as defined in section 397 of title 47 and any
nonprofit institution or organization engaged in the activities
described in paragraph (2) of subsection (d).
§ 119. Limitations on exclusive rights:
Secondary transmissions of superstations and network stations
for private home viewing55
(a) Secondary Transmissions by Satellite Carriers. —
(1) Superstations and PBS satellite feed. — Subject
to the provisions of paragraphs (3), (4), and (6) of this
subsection and section 114(d),
secondary transmissions of a performance or display of
a work embodied in a primary transmission made by a superstation
or by the Public Broadcasting Service satellite feed shall
be subject to statutory licensing under this section if
the secondary transmission is made by a satellite carrier
to the public for private home viewing, with regard to
secondary transmissions the satellite carrier is in compliance
with the rules, regulations, or authorizations of the
Federal Communications Commission governing the carriage
of television broadcast station signals, and the carrier
makes a direct or indirect charge for each retransmission
service to each household receiving the secondary transmission
or to a distributor that has contracted with the carrier
for direct or indirect delivery of the secondary transmission
to the public for private home viewing. In the case of
the Public Broadcasting Service satellite feed, the statutory
license shall be effective until January 1, 2002.56
(2) Network stations. —
(A) In general. — Subject
to the provisions of subparagraphs (B) and (C) of this
paragraph and paragraphs (3), (4), (5), and (6) of this
subsection and section 114(d),
secondary transmissions of a performance or display of
a work embodied in a primary transmission made by a network
station shall be subject to statutory licensing under
this section if the secondary transmission is made by
a satellite carrier to the public for private home viewing,
with regard to secondary transmissions the satellite carrier
is in compliance with the rules, regulations, or authorizations
of the Federal Communications Commission governing the
carriage of television broadcast station signals, and
the carrier makes a direct or indirect charge for such
retransmission service to each subscriber receiving the
secondary transmission.
(B) Secondary transmissions to unserved households. —
(i) In general. — The statutory
license provided for in subparagraph (A) shall be limited
to secondary transmissions of the signals of no more than
two network stations in a single day for each television
network to persons who reside in unserved households.
(ii) Accurate determinations of eligibility. —
(I) Accurate predictive model. — In
determining presumptively whether a person resides in
an unserved household under subsection (d)(10)(A), a court
shall rely on the Individual Location Longley-Rice model
set forth by the Federal Communications Commission in
Docket No. 98-201, as that model may be amended by the
Commission over time under section 339(c)(3) of the Communications
Act of 1934 to increase the accuracy of that model.
(II) Accurate measurements. — For
purposes of site measurements to determine whether a person
resides in an unserved household under subsection (d)(10)(A),
a court shall rely on section 339(c)(4) of the Communications
Act of 1934.
(iii) C-band exemption to unserved households. —
(I) In general. — The limitations
of clause (i) shall not apply to any secondary transmissions
by C-band services of network stations that a subscriber
to C-band service received before any termination of such
secondary transmissions before October 31, 1999.
(II) Definition. — In this
clause the term “C-band service” means a service
that is licensed by the Federal Communications Commission
and operates in the Fixed Satellite Service under part
25 of title 47 of the Code of Federal Regulations.
(C) Submission of subscriber lists to networks. — A
satellite carrier that makes secondary transmissions of
a primary transmission made by a network station pursuant
to subparagraph (A) shall, 90 days after commencing such
secondary transmissions, submit to the network that owns
or is affiliated with the network station a list identifying
(by name and street address, including county and zip
code) all subscribers to which the satellite carrier makes
secondary transmissions of that primary transmission.
Thereafter, on the 15th of each month, the satellite carrier
shall submit to the network a list identifying (by name
and street address, including county and zip code) any
persons who have been added or dropped as such subscribers
since the last submission under this subparagraph. Such
subscriber information submitted by a satellite carrier
may be used only for purposes of monitoring compliance
by the satellite carrier with this subsection. The submission
requirements of this subparagraph shall apply to a satellite
carrier only if the network to whom the submissions are
to be made places on file with the Register of Copyrights
a document identifying the name and address of the person
to whom such submissions are to be made. The Register
shall maintain for public inspection a file of all such
documents.
(3) Noncompliance with reporting and payment requirements. — Notwithstanding
the provisions of paragraphs (1) and (2), the willful
or repeated secondary transmission to the public by a
satellite carrier of a primary transmission made by a
superstation or a network station and embodying a performance
or display of a work is actionable as an act of infringement
under section 501, and
is fully subject to the remedies provided by sections
502 through 506 and
509, where the satellite
carrier has not deposited the statement of account and
royalty fee required by subsection (b), or has failed
to make the submissions to networks required by paragraph
(2)(C).
(4) Willful alterations. — Notwithstanding
the provisions of paragraphs (1) and (2), the secondary
transmission to the public by a satellite carrier of a
performance or display of a work embodied in a primary
transmission made by a superstation or a network station
is actionable as an act of infringement under section
501, and is fully subject to the remedies provided
by sections 502 through
506 and sections
509 and 510, if the
content of the particular program in which the performance
or display is embodied, or any commercial advertising
or station announcement transmitted by the primary transmitter
during, or immediately before or after, the transmission
of such program, is in any way willfully altered by the
satellite carrier through changes, deletions, or additions,
or is combined with programming from any other broadcast
signal.
(5) Violation of territorial restrictions on statutory
license for network stations. —
(A) Individual violations. — The
willful or repeated secondary transmission by a satellite
carrier of a primary transmission made by a network station
and embodying a performance or display of a work to a
subscriber who does not reside in an unserved household
is actionable as an act of infringement under section
501 and is fully subject to the remedies provided
by sections 502 through
506 and 509,
except that —
(i) no damages shall be awarded for such act of infringement
if the satellite carrier took corrective action by promptly
withdrawing service from the ineligible subscriber, and
(ii) any statutory damages shall not exceed $5 for such
subscriber for each month during which the violation occurred.
(B) Pattern of violations. — If
a satellite carrier engages in a willful or repeated pattern
or practice of delivering a primary transmission made
by a network station and embodying a performance or display
of a work to subscribers who do not reside in unserved
households, then in addition to the remedies set forth
in subparagraph (A) —
(i) if the pattern or practice has been carried out on
a substantially nationwide basis, the court shall order
a permanent injunction barring the secondary transmission
by the satellite carrier, for private home viewing, of
the primary transmissions of any primary network station
affiliated with the same network, and the court may order
statutory damages of not to exceed $250,000 for each 6-month
period during which the pattern or practice was carried
out; and
(ii) if the pattern or practice has been carried out
on a local or regional basis, the court shall order a
permanent injunction barring the secondary transmission,
for private home viewing in that locality or region, by
the satellite carrier of the primary transmissions of
any primary network station affiliated with the same network,
and the court may order statutory damages of not to exceed
$250,000 for each 6-month period during which the pattern
or practice was carried out.
(C) Previous subscribers excluded. — Subparagraphs
(A) and (B) do not apply to secondary transmissions by
a satellite carrier to persons who subscribed to receive
such secondary transmissions from the satellite carrier
or a distributor before November 16, 1988.
(D) Burden of proof.57 — In
any action brought under this paragraph, the satellite
carrier shall have the burden of proving that its secondary
transmission of a primary transmission by a network station
is for private home viewing to an unserved household.
(E) Exception. — The secondary
transmission by a satellite carrier of a performance or
display of a work embodied in a primary transmission made
by a network station to subscribers who do not reside
in unserved households shall not be an act of infringement
if —
(i) the station on May 1, 1991, was retransmitted by
a satellite carrier and was not on that date owned or
operated by or affiliated with a television network that
offered interconnected program service on a regular basis
for 15 or more hours per week to at least 25 affiliated
television licensees in 10 or more States;
(ii) as of July 1, 1998, such station was retransmitted
by a satellite carrier under the statutory license of
this section; and
(iii) the station is not owned or operated by or affiliated
with a television network that, as of January 1, 1995,
offered interconnected program service on a regular basis
for 15 or more hours per week to at least 25 affiliated
television licensees in 10 or more States.
(6) Discrimination by a satellite carrier. — Notwithstanding
the provisions of paragraph (1), the willful or repeated
secondary transmission to the public by a satellite carrier
of a performance or display of a work embodied in a primary
transmission made by a superstation or a network station
is actionable as an act of infringement under section
501, and is fully subject to the remedies provided
by sections 502 through
506 and 509,
if the satellite carrier unlawfully discriminates against
a distributor.58
(7) Geographic limitation on secondary transmissions. — The
statutory license created by this section shall apply
only to secondary transmissions to households located
in the United States.
(8) Transitional signal intensity measurement procedures.59 —
(A) In general. — Subject
to subparagraph (C), upon a challenge by a network station
regarding whether a subscriber is an unserved household
within the predicted Grade B Contour of the station, the
satellite carrier shall, within 60 days after the receipt
of the challenge —
(i) terminate service to that household of the signal
that is the subject of the challenge, and within 30 days
thereafter notify the network station that made the challenge
that service to that household has been terminated; or
(ii) conduct a measurement of the signal intensity of
the subscriber's household to determine whether the household
is an unserved household after giving reasonable notice
to the network station of the satellite carrier's intent
to conduct the measurement.
(B) Effect of measurement. — If
the satellite carrier conducts a signal intensity measurement
under subparagraph (A) and the measurement indicates that —
(i) the household is not an unserved household, the satellite
carrier shall, within 60 days after the measurement is
conducted, terminate the service to that household of
the signal that is the subject of the challenge, and within
30 days thereafter notify the network station that made
the challenge that service to that household has been
terminated; or
(ii) the household is an unserved household, the station
challenging the service shall reimburse the satellite
carrier for the costs of the signal measurement within
60 days after receipt of the measurement results and a
statement of the costs of the measurement.
(C) Limitation on measurements. —
(i) Notwithstanding subparagraph (A), a satellite carrier
may not be required to conduct signal intensity measurements
during any calendar year in excess of 5 percent of the
number of subscribers within the network station's local
market that have subscribed to the service as of the effective
date of the Satellite Home Viewer Act of 1994.
(ii) If a network station challenges whether a subscriber
is an unserved household in excess of 5 percent of the
subscribers within the network station's local market
within a calendar year, subparagraph (A) shall not apply
to challenges in excess of such 5 percent, but the station
may conduct its own signal intensity measurement of the
subscriber's household after giving reasonable notice
to the satellite carrier of the network station's intent
to conduct the measurement. If such measurement indicates
that the household is not an unserved household, the carrier
shall, within 60 days after receipt of the measurement,
terminate service to the household of the signal that
is the subject of the challenge and within 30 days thereafter
notify the network station that made the challenge that
service has been terminated. The carrier shall also, within
60 days after receipt of the measurement and a statement
of the costs of the measurement, reimburse the network
station for the cost it incurred in conducting the measurement.
(D) Outside the predicted grade b contour. —
(i) If a network station challenges whether a subscriber
is an unserved household outside the predicted Grade B
Contour of the station, the station may conduct a measurement
of the signal intensity of the subscriber's household
to determine whether the household is an unserved household
after giving reasonable notice to the satellite carrier
of the network station's intent to conduct the measurement.
(ii) If the network station conducts a signal intensity
measurement under clause (i) and the measurement indicates
that —
(I) the household is not an unserved household, the station
shall forward the results to the satellite carrier who
shall, within 60 days after receipt of the measurement,
terminate the service to the household of the signal that
is the subject of the challenge, and shall reimburse the
station for the costs of the measurement within 60 days
after receipt of the measurement results and a statement
of such costs; or
(II) the household is an unserved household, the station
shall pay the costs of the measurement.
(9) Loser pays for signal intensity measurement;
recovery of measurement costs in a civil action. — In
any civil action filed relating to the eligibility of
subscribing households as unserved households —
(A) a network station challenging such eligibility shall,
within 60 days after receipt of the measurement results
and a statement of such costs, reimburse the satellite
carrier for any signal intensity measurement that is conducted
by that carrier in response to a challenge by the network
station and that establishes the household is an unserved
household; and
(B) a satellite carrier shall, within 60 days after receipt
of the measurement results and a statement of such costs,
reimburse the network station challenging such eligibility
for any signal intensity measurement that is conducted
by that station and that establishes the household is
not an unserved household.
(10) Inability to conduct measurement. — If
a network station makes a reasonable attempt to conduct
a site measurement of its signal at a subscriber's household
and is denied access for the purpose of conducting the
measurement, and is otherwise unable to conduct a measurement,
the satellite carrier shall within 60 days notice thereof,
terminate service of the station's network to that household.
(11) Service to recreational vehicles and commercial
trucks. —
(A) Exemption. —
(i) In general. — For purposes
of this subsection, and subject to clauses (ii) and (iii),
the term “unserved household” shall include —
(I) recreational vehicles as defined in regulations of
the Secretary of Housing and Urban Development under section
3282.8 of title 24 of the Code of Federal Regulations;
and
(II) commercial trucks that qualify as commercial motor
vehicles under regulations of the Secretary of Transportation
under section 383.5 of title 49 of the Code of Federal
Regulations.
(ii) Limitation. — Clause
(i) shall apply only to a recreational vehicle or commercial
truck if any satellite carrier that proposes to make a
secondary transmission of a network station to the operator
of such a recreational vehicle or commercial truck complies
with the documentation requirements under subparagraphs
(B) and (C).
(iii) Exclusion. — For purposes
of this subparagraph, the terms “recreational vehicle”
and “commercial truck” shall not include any
fixed dwelling, whether a mobile home or otherwise.
(B) Documentation requirements. — A
recreational vehicle or commercial truck shall be deemed
to be an unserved household beginning 10 days after the
relevant satellite carrier provides to the network that
owns or is affiliated with the network station that will
be secondarily transmitted to the recreational vehicle
or commercial truck the following documents:
(i) Declaration. — A signed
declaration by the operator of the recreational vehicle
or commercial truck that the satellite dish is permanently
attached to the recreational vehicle or commercial truck,
and will not be used to receive satellite programming
at any fixed dwelling.
(ii) Registration. — In
the case of a recreational vehicle, a copy of the current
State vehicle registration for the recreational vehicle.
(iii) Registration and license. — In
the case of a commercial truck, a copy of —
(I) the current State vehicle registration for the truck;
and
(II) a copy of a valid, current commercial driver's license,
as defined in regulations of the Secretary of Transportation
under section 383 of title 49 of the Code of Federal Regulations,
issued to the operator.
(C) Updated documentation requirements. — If
a satellite carrier wishes to continue to make secondary
transmissions to a recreational vehicle or commercial
truck for more than a 2-year period, that carrier shall
provide each network, upon request, with updated documentation
in the form described under subparagraph (B) during the
90 days before expiration of that 2-year period.
(12) Statutory license contingent on compliance
with FCC rules and remedial steps. — Notwithstanding
any other provision of this section, the willful or repeated
secondary transmission to the public by a satellite carrier
of a primary transmission embodying a performance or display
of a work made by a broadcast station licensed by the
Federal Communications Commission is actionable as an
act of infringement under section
501, and is fully subject to the remedies provided
by sections 502 through
506 and 509,
if, at the time of such transmission, the satellite carrier
is not in compliance with the rules, regulations, and
authorizations of the Federal Communications Commission
concerning the carriage of television broadcast station
signals.60
(b) Statutory License for Secondary Transmissions
for Private Home Viewing. —
(1) Deposits with the Register of Copyrights. — A
satellite carrier whose secondary transmissions are subject
to statutory licensing under subsection (a) shall, on
a semiannual basis, deposit with the Register of Copyrights,
in accordance with requirements that the Register shall
prescribe by regulation —
(A) a statement of account, covering the preceding 6-month
period, specifying the names and locations of all superstations
and network stations whose signals were retransmitted,
at any time during that period, to subscribers for private
home viewing as described in subsections (a)(1) and (a)(2),
the total number of subscribers that received such retransmissions,
and such other data as the Register of Copyrights may
from time to time prescribe by regulation; and
(B) a royalty fee for that 6-month period, computed by —
(i) multiplying the total number of subscribers receiving
each secondary transmission of a superstation during each
calendar month by 17.5 cents per subscriber in the case
of superstations that as retransmitted by the satellite
carrier include any program which, if delivered by any
cable system in the United States, would be subject to
the syndicated exclusivity rules of the Federal Communications
Commission, and 14 cents per subscriber in the case of
superstations that are syndex-proof as defined in section
258.2 of title 37, Code of Federal Regulations;
(ii) multiplying the number of subscribers receiving
each secondary transmission of a network station or the
Public Broadcasting Service satellite feed during each
calendar month by 6 cents;61
and
(iii) adding together the totals computed under clauses
(i) and (ii).
(2) Investment of fees. — The
Register of Copyrights shall receive all fees deposited
under this section and, after deducting the reasonable
costs incurred by the Copyright Office under this section
(other than the costs deducted under paragraph (4)), shall
deposit the balance in the Treasury of the United States,
in such manner as the Secretary of the Treasury directs.
All funds held by the Secretary of the Treasury shall
be invested in interest-bearing securities of the United
States for later distribution with interest by the Librarian
of Congress as provided by this title.
(3) Persons to whom fees are distributed. — The
royalty fees deposited under paragraph (2) shall, in accordance
with the procedures provided by paragraph (4), be distributed
to those copyright owners whose works were included in
a secondary transmission for private home viewing made
by a satellite carrier during the applicable 6-month accounting
period and who file a claim with the Librarian of Congress
under paragraph (4).
(4) Procedures for distribution. — The
royalty fees deposited under paragraph (2) shall be distributed
in accordance with the following procedures:
(A) Filing of claims for fees. — During
the month of July in each year, each person claiming to
be entitled to statutory license fees for secondary transmissions
for private home viewing shall file a claim with the Librarian
of Congress, in accordance with requirements that the
Librarian of Congress shall prescribe by regulation. For
purposes of this paragraph, any claimants may agree among
themselves as to the proportionate division of statutory
license fees among them, may lump their claims together
and file them jointly or as a single claim, or may designate
a common agent to receive payment on their behalf.
(B) Determination of controversy; distributions. — After
the first day of August of each year, the Librarian of
Congress shall determine whether there exists a controversy
concerning the distribution of royalty fees. If the Librarian
of Congress determines that no such controversy exists,
the Librarian of Congress shall, after deducting reasonable
administrative costs under this paragraph, distribute
such fees to the copyright owners entitled to receive
them, or to their designated agents. If the Librarian
of Congress finds the existence of a controversy, the
Librarian of Congress shall, pursuant to chapter
8 of this title, convene a copyright arbitration royalty
panel to determine the distribution of royalty fees.
(C) Withholding of fees during controversy. — During
the pendency of any proceeding under this subsection,
the Librarian of Congress shall withhold from distribution
an amount sufficient to satisfy all claims with respect
to which a controversy exists, but shall have discretion
to proceed to distribute any amounts that are not in controversy.
(c) Adjustment of Royalty Fees. —
(1) Applicability and determination of royalty
fees. — The rate of the royalty
fee payable under subsection (b)(1)(B) shall be effective
unless a royalty fee is established under paragraph (2)
or (3) of this subsection.
(2) Fee set by voluntary negotiation. —
(A) Notice of initiation of proceedings. — On
or before July 1, 1996, the Librarian of Congress shall
cause notice to be published in the Federal Register of
the initiation of voluntary negotiation proceedings for
the purpose of determining the royalty fee to be paid
by satellite carriers under subsection (b)(1)(B).
(B) Negotiations. — Satellite
carriers, distributors, and copyright owners entitled
to royalty fees under this section shall negotiate in
good faith in an effort to reach a voluntary agreement
or voluntary agreements for the payment of royalty fees.
Any such satellite carriers, distributors, and copyright
owners may at any time negotiate and agree to the royalty
fee, and may designate common agents to negotiate, agree
to, or pay such fees. If the parties fail to identify
common agents, the Librarian of Congress shall do so,
after requesting recommendations from the parties to the
negotiation proceeding. The parties to each negotiation
proceeding shall bear the entire cost thereof.
(C) Agreements binding on parties; filing of agreements. — Voluntary
agreements negotiated at any time in accordance with this
paragraph shall be binding upon all satellite carriers,
distributors, and copyright owners that are parties thereto.
Copies of such agreements shall be filed with the Copyright
Office within 30 days after execution in accordance with
regulations that the Register of Copyrights shall prescribe.
(D) Period agreement is in effect. — The
obligation to pay the royalty fees established under a
voluntary agreement which has been filed with the Copyright
Office in accordance with this paragraph shall become
effective on the date specified in the agreement, and
shall remain in effect until December 31, 1999, or in
accordance with the terms of the agreement, whichever
is later.
(3) Fee set by compulsory arbitration. —
(A) Notice of initiation of proceedings. — On
or before January 1, 1997, the Librarian of Congress shall
cause notice to be published in the Federal Register of
the initiation of arbitration proceedings for the purpose
of determining a reasonable royalty fee to be paid under
subsection (b)(1)(B) by satellite carriers who are not
parties to a voluntary agreement filed with the Copyright
Office in accordance with paragraph (2). Such arbitration
proceeding shall be conducted under chapter
8.
(B) Establishment of royalty fees. — In
determining royalty fees under this paragraph, the copyright
arbitration royalty panel appointed under chapter
8 shall establish fees for the retransmission of network
stations and superstations that most clearly represent
the fair market value of secondary transmissions. In determining
the fair market value, the panel shall base its decision
on economic, competitive, and programming information
presented by the parties, including —
(i) the competitive environment in which such programming
is distributed, the cost of similar signals in similar
private and compulsory license marketplaces, and any special
features and conditions of the retransmission marketplace;
(ii) the economic impact of such fees on copyright owners
and satellite carriers; and
(iii) the impact on the continued availability of secondary
transmissions to the public.
(C) Period during which decision of arbitration
panel or order of librarian effective. — The
obligation to pay the royalty fee established under a
determination which —
(i) is made by a copyright arbitration royalty panel
in an arbitration proceeding under this paragraph and
is adopted by the Librarian of Congress under section
802(f), or
(ii) is established by the Librarian of Congress under
section 802(f), shall become
effective as provided in section
802(g ), or July 1, 1997, whichever is later.
(D) Persons subject to royalty fee. — The
royalty fee referred to in subparagraph (C) shall be binding
on all satellite carriers, distributors, and copyright
owners, who are not party to a voluntary agreement filed
with the Copyright Office under paragraph (2).
(4) Reduction.62 —
(A) Superstation. — The
rate of the royalty fee in effect on January 1, 1998,
payable in each case under subsection (b)(1)(B)(i) shall
be reduced by 30 percent.
(B) Network and public broadcasting satellite feed. — The
rate of the royalty fee in effect on January 1, 1998,
payable under subsection (b)(1)(B)(ii) shall be reduced
by 45 percent.
(5) Public broadcasting service as agent. — For
purposes of section 802,
with respect to royalty fees paid by satellite carriers
for retransmitting the Public Broadcasting Service satellite
feed, the Public Broadcasting Service shall be the agent
for all public television copyright claimants and all
Public Broadcasting Service member stations.63
(d) Definitions. — As used
in this section —
(1) Distributor. — The term
“distributor” means an entity which contracts
to distribute secondary transmissions from a satellite
carrier and, either as a single channel or in a package
with other programming, provides the secondary transmission
either directly to individual subscribers for private
home viewing or indirectly through other program distribution
entities.
(2) Network station. — The
term “network station” means —
(A) a television broadcast station, including any translator
station or terrestrial satellite station that rebroadcasts
all or substantially all of the programming broadcast
by a network station, that is owned or operated by, or
affiliated with, one or more of the television networks
in the United States which offer an interconnected program
service on a regular basis for 15 or more hours per week
to at least 25 of its affiliated television licensees
in 10 or more States; or
(B) a noncommercial educational broadcast station (as
defined in section 397 of the Communications Act of 1934).
(3) Primary network station. — The
term “primary network station” means a network
station that broadcasts or rebroadcasts the basic programming
service of a particular national network.
(4) Primary transmission. — The
term “primary transmission” has the meaning
given that term in section
111(f) of this title.
(5) Private home viewing. — The
term “private home viewing” means the viewing,
for private use in a household by means of satellite reception
equipment which is operated by an individual in that household
and which serves only such household, of a secondary transmission
delivered by a satellite carrier of a primary transmission
of a television station licensed by the Federal Communications
Commission.
(6) Satellite carrier. — The
term “satellite carrier” means an entity that
uses the facilities of a satellite or satellite service
licensed by the Federal Communications Commission and
operates in the Fixed-Satellite Service under part 25
of title 47 of the Code of Federal Regulations or the
Direct Broadcast Satellite Service under part 100 of title
47 of the Code of Federal Regulations to establish and
operate a channel of communications for point-to-multipoint
distribution of television station signals, and that owns
or leases a capacity or service on a satellite in order
to provide such point-to-multipoint distribution, except
to the extent that such entity provides such distribution
pursuant to tariff under the Communications Act of 1934,
other than for private home viewing.
(7) Secondary transmission. — The
term “secondary transmission” has the meaning
given that term in section
111(f) of this title.
(8) Subscriber. — The term
“subscriber” means an individual who receives
a secondary transmission service for private home viewing
by means of a secondary transmission from a satellite
carrier and pays a fee for the service, directly or indirectly,
to the satellite carrier or to a distributor.
(9) Superstation. — The
term “superstation” —
(A) means a television broadcast station, other than
a network station, licensed by the Federal Communications
Commission that is secondarily transmitted by a satellite
carrier; and
(B) except for purposes of computing the royalty fee,
includes the Public Broadcasting Service satellite feed.64
(10) Unserved household. — The
term “unserved household”, with respect to
a particular television network, means a household that —
(A) cannot receive, through the use of a conventional,
stationary, outdoor rooftop receiving antenna, an over-the-air
signal of a primary network station affiliated with that
network of Grade B intensity as defined by the Federal
Communications Commission under section 73.683(a) of title
47 of the Code of Federal Regulations, as in effect on
January 1, 1999;
(B) is subject to a waiver granted under regulations
established under section 339(c)(2) of the Communications
Act of 1934;
(C) is a subscriber to whom subsection (e) applies;
(D) is a subscriber to whom subsection (a)(11) applies;
or
(E) is a subscriber to whom the exemption under subsection
(a)(2)(B)(iii) applies.
(11) Local market. — The
term “local market” has the meaning given
such term under section 122(j).
(12) Public broadcasting service satellite feed. — The
term “Public Broadcasting Service satellite feed”
means the national satellite feed distributed and designated
for purposes of this section by the Public Broadcasting
Service consisting of educational and informational programming
intended for private home viewing, to which the Public
Broadcasting Service holds national terrestrial broadcast
rights.65
(e) Moratorium on Copyright Liability. — Until
December 31, 2004, a subscriber who does not receive a
signal of Grade A intensity (as defined in the regulations
of the Federal Communications Commission under section
73.683(a) of title 47 of the Code of Federal Regulations,
as in effect on January 1, 1999, or predicted by the Federal
Communications Commission using the Individual Location
Longley-Rice methodology described by the Federal Communications
Commission in Docket No. 98-201) of a local network television
broadcast station shall remain eligible to receive signals
of network stations affiliated with the same network,
if that subscriber had satellite service of such network
signal terminated after July 11, 1998, and before October
31, 1999, as required by this section, or received such
service on October 31, 1999.
§ 120. Scope of exclusive rights in
architectural works66
(a) Pictorial Representations Permitted. — The
copyright in an architectural work that has been constructed
does not include the right to prevent the making, distributing,
or public display of pictures, paintings, photographs,
or other pictorial representations of the work, if the
building in which the work is embodied is located in or
ordinarily visible from a public place.
(b) Alterations to and Destruction of Buildings. — Notwithstanding
the provisions of section 106(2),
the owners of a building embodying an architectural work
may, without the consent of the author or copyright owner
of the architectural work, make or authorize the making
of alterations to such building, and destroy or authorize
the destruction of such building.
§ 121. Limitations on exclusive rights:
reproduction for blind or other people with disabilities67
(a) Notwithstanding the provisions of section
106, it is not an infringement of copyright for an
authorized entity to reproduce or to distribute copies
or phonorecords of a previously published, nondramatic
literary work if such copies or phonorecords are reproduced
or distributed in specialized formats exclusively for
use by blind or other persons with disabilities.
(b)(1) Copies or phonorecords to which this section applies
shall —
(A) not be reproduced or distributed in a format other
than a specialized format exclusively for use by blind
or other persons with disabilities;
(B) bear a notice that any further reproduction or distribution
in a format other than a specialized format is an infringement;
and
(C) include a copyright notice identifying the copyright
owner and the date of the original publication.
(2) The provisions of this subsection shall not apply
to standardized, secure, or norm-referenced tests and
related testing material, or to computer programs, except
the portions thereof that are in conventional human language
(including descriptions of pictorial works) and displayed
to users in the ordinary course of using the computer
programs.
(c) For purposes of this section, the term —
(1) “authorized entity” means a nonprofit
organization or a governmental agency that has a primary
mission to provide specialized services relating to training,
education, or adaptive reading or information access needs
of blind or other persons with disabilities;
(2) “blind or other persons with disabilities”
means individuals who are eligible or who may qualify
in accordance with the Act entitled “An Act to provide
books for the adult blind”, approved March 3, 1931
(2 U.S.C. 135a; 46 Stat. 1487) to receive books and other
publications produced in specialized formats; and
(3) “specialized formats” means braille,
audio, or digital text which is exclusively for use by
blind or other persons with disabilities.
§ 122. Limitations on exclusive rights;
secondary transmissions by satellite carriers within local
markets68
(a) Secondary Transmissions of Television Broadcast
Stations by Satellite Carriers. — A
secondary transmission of a performance or display of
a work embodied in a primary transmission of a television
broadcast station into the station's local market shall
be subject to statutory licensing under this section if —
(1) the secondary transmission is made by a satellite
carrier to the public;
(2) with regard to secondary transmissions, the satellite
carrier is in compliance with the rules, regulations,
or authorizations of the Federal Communications Commission
governing the carriage of television broadcast station
signals; and
(3) the satellite carrier makes a direct or indirect
charge for the secondary transmission to —
(A) each subscriber receiving the secondary transmission;
or
(B) a distributor that has contracted with the satellite
carrier for direct or indirect delivery of the secondary
transmission to the public.
(b) Reporting Requirements. —
(1) Initial lists. — A satellite
carrier that makes secondary transmissions of a primary
transmission made by a network station under subsection
(a) shall, within 90 days after commencing such secondary
transmissions, submit to the network that owns or is affiliated
with the network station a list identifying (by name in
alphabetical order and street address, including county
and zip code) all subscribers to which the satellite carrier
makes secondary transmissions of that primary transmission
under subsection (a).
(2) Subsequent lists. — After
the list is submitted under paragraph (1), the satellite
carrier shall, on the 15th of each month, submit to the
network a list identifying (by name in alphabetical order
and street address, including county and zip code) any
subscribers who have been added or dropped as subscribers
since the last submission under this subsection.
(3) Use of subscriber information. — Subscriber
information submitted by a satellite carrier under this
subsection may be used only for the purposes of monitoring
compliance by the satellite carrier with this section.
(4) Requirements of networks. — The
submission requirements of this subsection shall apply
to a satellite carrier only if the network to which the
submissions are to be made places on file with the Register
of Copyrights a document identifying the name and address
of the person to whom such submissions are to be made.
The Register of Copyrights shall maintain for public inspection
a file of all such documents.
(c) No Royalty Fee Required. — A
satellite carrier whose secondary transmissions are subject
to statutory licensing under subsection (a) shall have
no royalty obligation for such secondary transmissions.
(d) Noncompliance with Reporting and Regulatory
Requirements. — Notwithstanding
subsection (a), the willful or repeated secondary transmission
to the public by a satellite carrier into the local market
of a television broadcast station of a primary transmission
embodying a performance or display of a work made by that
television broadcast station is actionable as an act of
infringement under section
501, and is fully subject to the remedies provided
under sections 502 through
506 and 509,
if the satellite carrier has not complied with the reporting
requirements of subsection (b) or with the rules, regulations,
and authorizations of the Federal Communications Commission
concerning the carriage of television broadcast signals.
(e) Willful Alterations. — Notwithstanding
subsection (a), the secondary transmission to the public
by a satellite carrier into the local market of a television
broadcast station of a performance or display of a work
embodied in a primary transmission made by that television
broadcast station is actionable as an act of infringement
under section 501, and
is fully subject to the remedies provided by sections
502 through 506 and
sections 509 and 510,
if the content of the particular program in which the
performance or display is embodied, or any commercial
advertising or station announcement transmitted by the
primary transmitter during, or immediately before or after,
the transmission of such program, is in any way willfully
altered by the satellite carrier through changes, deletions,
or additions, or is combined with programming from any
other broadcast signal.
(f) Violation of Territorial Restrictions on Statutory
License for Television Broadcast Stations. —
(1) Individual violations. — The
willful or repeated secondary transmission to the public
by a satellite carrier of a primary transmission embodying
a performance or display of a work made by a television
broadcast station to a subscriber who does not reside
in that station's local market, and is not subject to
statutory licensing under section
119 or a private licensing agreement, is actionable
as an act of infringement under section
501 and is fully subject to the remedies provided
by sections 502 through
506 and 509,
except that —
(A) no damages shall be awarded for such act of infringement
if the satellite carrier took corrective action by promptly
withdrawing service from the ineligible subscriber; and
(B) any statutory damages shall not exceed $5 for such
subscriber for each month during which the violation occurred.
(2) Pattern of violations. — If
a satellite carrier engages in a willful or repeated pattern
or practice of secondarily transmitting to the public
a primary transmission embodying a performance or display
of a work made by a television broadcast station to subscribers
who do not reside in that station's local market, and
are not subject to statutory licensing under section
119 or a private licensing agreement, then in addition
to the remedies under paragraph (1) —
(A) if the pattern or practice has been carried out on
a substantially nationwide basis, the court —
(i) shall order a permanent injunction barring the secondary
transmission by the satellite carrier of the primary transmissions
of that television broadcast station (and if such television
broadcast station is a network station, all other television
broadcast stations affiliated with such network); and
(ii) may order statutory damages not exceeding $250,000
for each 6-month period during which the pattern or practice
was carried out; and
(B) if the pattern or practice has been carried out on
a local or regional basis with respect to more than one
television broadcast station, the court —
(i) shall order a permanent injunction barring the secondary
transmission in that locality or region by the satellite
carrier of the primary transmissions of any television
broadcast station; and
(ii) may order statutory damages not exceeding $250,000
for each 6-month period during which the pattern or practice
was carried out.
(g) Burden of Proof. — In
any action brought under subsection (f), the satellite
carrier shall have the burden of proving that its secondary
transmission of a primary transmission by a television
broadcast station is made only to subscribers located
within that station's local market or subscribers being
served in compliance with section
119 or a private licensing agreement.
(h) Geographic Limitations on Secondary Transmissions. — The
statutory license created by this section shall apply
to secondary transmissions to locations in the United
States.
(i) Exclusivity with Respect to Secondary Transmissions
of Broadcast Stations by Satellite to Members of the Public. — No
provision of section 111
or any other law (other than this section and section
119) shall be construed to contain any authorization,
exemption, or license through which secondary transmissions
by satellite carriers of programming contained in a primary
transmission made by a television broadcast station may
be made without obtaining the consent of the copyright
owner.
(j) Definitions. — In this
section —
(1) Distributor. — The term
“distributor” means an entity which contracts
to distribute secondary transmissions from a satellite
carrier and, either as a single channel or in a package
with other programming, provides the secondary transmission
either directly to individual subscribers or indirectly
through other program distribution entities.
(2) Local market. —
(A) In general. — The term
“local market”, in the case of both commercial
and noncommercial television broadcast stations, means
the designated market area in which a station is located,
and —
(i) in the case of a commercial television broadcast
station, all commercial television broadcast stations
licensed to a community within the same designated market
area are within the same local market; and
(ii) in the case of a noncommercial educational television
broadcast station, the market includes any station that
is licensed to a community within the same designated
market area as the noncommercial educational television
broadcast station.
(B) County of license. — In
addition to the area described in subparagraph (A), a
station's local market includes the county in which the
station's community of license is located.
(C) Designated market area. — For
purposes of subparagraph (A), the term “designated
market area” means a designated market area, as
determined by Nielsen Media Research and published in
the 1999–2000 Nielsen Station Index Directory and
Nielsen Station Index United States Television Household
Estimates or any successor publication.
(3) Network station; satellite carrier; secondary
transmission. — The terms “network
station”, “satellite carrier”, and “secondary
transmission” have the meanings given such terms
under section 119(d).
(4) Subscriber. — The term
“subscriber” means a person who receives a
secondary transmission service from a satellite carrier
and pays a fee for the service, directly or indirectly,
to the satellite carrier or to a distributor.
(5) Television broadcast station. — The
term “television broadcast station” —
(A) means an over-the-air, commercial or noncommercial
television broadcast station licensed by the Federal Communications
Commission under subpart E of part 73 of title 47, Code
of Federal Regulations, except that such term does not
include a low-power or translator television station;
and
(B) includes a television broadcast station licensed
by an appropriate governmental authority of Canada or
Mexico if the station broadcasts primarily in the English
language and is a network station as defined in section
119(d)(2)(A).
Chapter 1 Endnotes
1In 1980, section
117 was amended in its entirety with an amendment
in the nature of a substitute that included a new title.
However, the table of sections was not changed to reflect
the new title. Pub. L. No. 96-517, 94 Stat. 3015, 3028.
In 1997, a technical amendment made that change. Pub.
L. No. 105-80, 111 Stat. 1529, 1534.
2The Audio Home Recording
Act of 1992 amended section
101 by inserting “Except as otherwise provided
in this title,” at the beginning of the first sentence.
Pub. L. No. 102-563, 106 Stat. 4237, 4248.
The Berne Convention Implementation Act of 1988 amended
section 101 by adding a
definition for “Berne Convention work.” Pub.
L. No. 100-568, 102 Stat. 2853, 2854. In 1990, the Architectural
Works Copyright Protection Act amended the definition
of “Berne Convention work” by adding paragraph
(5). Pub. L. No. 101-650, 104 Stat. 5089, 5133. The WIPO
Copyright and Performances and Phonograms Treaties Implementation
Act of 1998 deleted the definition of “Berne Convention
work” from section 101. Pub. L. No. 105-304, 112
Stat. 2860, 2861. The definition of “Berne Convention
work,” as deleted, is contained in part
VI of the Appendix.
3In 1990, the Architectural
Works Copyright Protection Act amended section
101 by adding the definition for “architectural
work.” Pub. L. No. 101-650, 104 Stat. 5089, 5133.
That Act states that the definition is applicable to “any
architectural work that, on the date of the enactment
of this Act, is unconstructed and embodied in unpublished
plans or drawings, except that protection for such architectural
work under title 17, United States Code, by virtue of
the amendments made by this title, shall terminate on
December 31, 2002, unless the work is constructed by that
date.”
4The Berne Convention Implementation
Act of 1988 amended section
101 by adding the definition of “Berne Convention.”
Pub. L. No. 100-568, 102 Stat. 2853, 2854.
5In 1980, the definition
of “computer program” was added to section
101. Pub. L. No. 96-517, 94 Stat. 3015, 3028. The
Intellectual Property and High Technology Technical Amendments
Act of 2002 amended section 101 by moving the definition
for computer program from the end of section 101 to be
in alphabetical order, after “compilation.”
Pub. L. No. 107-273, 116 Stat. 1758, 1909.
6The Digital Performance
Right in Sound Recordings Act of 1995 amended section
101 by adding the definition of “digital transmission.”
Pub. L. No.104-39, 109 Stat. 336, 348.
7The Fairness in
Music Licensing Act of 1998 amended section
101 by adding the definition of “establishment.”
Pub. L. No. 105-298, 112 Stat. 2827, 2833.
8The Fairness in
Music Licensing Act of 1998 amended section
101 by adding the definition of “food service
or drinking establishment.” Pub. L. No. 105-298,
112 Stat. 2827, 2833.
9In 1997, the No
Electronic Theft (NET) Act amended section
101 by adding the definition for “financial
gain.” Pub. L. No. 105-147, 111 Stat. 2678.
10The WIPO Copyright
and Performances and Phonograms Treaties Implementation
Act of 1998 amended section
101 by adding the definition of “Geneva Phonograms
Convention.” Pub. L. No. 105-304, 112 Stat. 2860,
2861.
11The Fairness
in Music Licensing Act of 1998 amended section
101 by adding the definition of “gross square
feet of space.” Pub. L. No. 105-298, 112 Stat. 2827,
2833.
12The WIPO Copyright
and Performances and Phonograms Treaties Implementation
Act of 1998 requires that paragraph (5) of the definition
of “international agreement” take effect upon
entry into force of the WIPO Copyright Treaty with respect
to the United States. Pub. L. No. 105-304, 112 Stat. 2860,
2877.
13The WIPO Copyright
and Performances and Phonograms Treaties Implementation
Act of 1998 requires that paragraph (6) of the definition
of “international agreement” take effect upon
entry into force of the WIPO Performances and Phonograms
Treaty with respect to the United States. Pub. L. No.
105-304, 112 Stat. 2860, 2877.
14The WIPO Copyright
and Performances and Phonograms Treaties Implementation
Act of 1998 amended section
101 by adding the definition of “international
agreement.” Pub. L. No. 105-304, 112 Stat. 2860,
2861.
15The Fairness
in Music Licensing Act of 1998 amended section
101 by adding the definition of “performing
rights society.” Pub. L. No. 105-298, 112 Stat.
2827, 2833.
16The Berne Convention
Implementation Act of 1988 amended the definition of “Pictorial,
graphic, and sculptural works” by inserting “diagrams,
models, and technical drawings, including architectural
plans” in the first sentence, in lieu of “technical
drawings, diagrams, and models.” Pub. L. No. 100-568,
102 Stat. 2853, 2854.
17The Fairness
in Music Licensing Act of 1998 amended section
101 by adding the definition of “proprietor.”
Pub. L. No. 105-298, 112 Stat. 2827, 2833. In 1999, a
technical amendment added the phrase “For purposes
of section 513,”, to the beginning of the definition
of “proprietor.” Pub. L. No. 106-44, 113 Stat.
221, 222.
18The Copyright
Renewal Act of 1992 amended section
101 by adding the definition of “registration.”
Pub. L. No. 102-307, 106 Stat. 264, 266.
19The WIPO Copyright
and Performances and Phonograms Treaties Implementation
Act of 1998 amended section
101 by adding the definition of “treaty party.”
Pub. L. No. 105-304, 112 Stat. 2860, 2861.
20The Berne Convention
Implementation Act of 1988 amended section
101 by adding the definition of “country of
origin” of a Berne Convention work, for purposes
of section 411. Pub. L.
No. 100-568, 102 Stat. 2853, 2854. The WIPO Copyright
and Performances and Phonograms Treaties Implementation
Act of 1998 amended that definition by changing it to
a definition for “United States work,” for
purposes of section 411. Pub. L. No. 105-304, 112 Stat.
2860, 2861. In 1999, a technical amendment moved the definition
of “United States work” to place it in alphabetical
order, after the definition for “United States.”
Pub. L. No. 106-44, 113 Stat. 221, 222.
21The WIPO Copyright
and Performances and Phonograms Treaties Implementation
Act of 1998 amended section
101 by adding the definition of “WIPO Copyright
Treaty.” Pub. L. No. 105-304, 112 Stat. 2860, 2861.
That definition is required to take effect upon entry
into force of the WIPO Copyright Treaty with respect to
the United States. Pub. L. No. 105-304, 112 Stat. 2860,
2877.
22The WIPO Copyright
and Performances and Phonograms Treaties Implementation
Act of 1998 amended section
101 by adding the definition of “WIPO Performances
and Phonograms Treaty.” Pub. L. No. 105-304, 112
Stat. 2860, 2862. That definition is required to take
effect upon entry into force of the WIPO Performances
and Phonograms Treaty with respect to the United States.
Pub. L. No. 105-304, 112 Stat. 2860, 2877.
23The Visual Artists
Rights Act of 1990 amended section
101 by adding the definition of “work of visual
art.” Pub. L. No. 101-650, 104 Stat. 5089, 5128.
24The Satellite
Home Viewer Improvement Act of 1999 amended the definition
of “a work made for hire” by inserting “as
a sound recording” after “audiovisual work.”
Pub. L. No. 106-113, 113 Stat. 1501, app. I at 1501A-544.
The Work Made for Hire and Copyright Corrections Act of
2000 amended the definition of “work made for hire”
by deleting “as a sound recording” after “audiovisual
work.” Pub. L. No. 106-379, 114 Stat. 1444. The
Act also added a second paragraph to part (2) of that
definition. Id. These changes are effective retroactively,
as of November 29, 1999.
25The WIPO Copyright
and Performances and Phonograms Treaties Implementation
Act of 1998 amended section
101 by adding the definitions of “WTO Agreement”
and “WTO member country,” thereby transferring
those definitions to section 101 from section
104A. Pub. L. No. 105-304, 112 Stat. 2860, 2862. See
also endnote 29, infra.
26In 1990, the Architectural
Works Copyright Protection Act amended subsection 102(a)
by adding at the end thereof paragraph (8). Pub. L. No.
101-650, 104 Stat. 5089, 5133.
27The Berne Convention Implementation
Act of 1988 amended section
104(b) by redesignating paragraph (4) as paragraph
(5), by inserting after paragraph (3) a new paragraph
(4) and by adding subsection (c) at the end. Pub. L. No.
100-568, 102 Stat. 2853, 2855. The WIPO Copyright and
Performances and Phonograms Treaties Implementation Act
of 1998 amended section 104 as follows: 1) by amending
subsection (b) to redesignate paragraphs (3) and (5) as
(5) and (6), respectively, and by adding a new paragraph
(3); 2) by amending section 104(b), throughout; and 3)
by adding section 104(d). Pub. L. No. 105-304, 112 Stat.
2860, 2862.
28The WIPO Copyright and
Performances and Phonograms Treaties Implementation Act
of 1998 requires that subsection (d), regarding the effect
of phonograms treaties, take effect upon entry into force
of the WIPO Performances and Phonograms Treaty with respect
to the United States. Pub. L. No. 105-304, 112 Stat. 2860,
2877.
29In 1993, the North American
Free Trade Agreement Implementation Act added section
104A. Pub. L. No. 103-182, 107 Stat. 2057, 2115. In
1994, the Uruguay Round Agreements Act amended section
104A in its entirety with an amendment in the nature of
a substitute. Pub. L. No. 103-465, 108 Stat. 4809, 4976.
On November 13, 1997, Section 104A was amended by replacing
subsection (d)(3)(A), by striking the last sentence of
subsection (e)(1)(B)(ii) and by rewriting paragraphs (2)
and (3) of subsection (h). Pub. L. No. 105-80, 111 Stat.
1529, 1530. The WIPO Copyright and Performances and Phonograms
Treaties Implementation Act of 1998 amended section 104A
by rewriting paragraphs (1) and (3) of subsection (h);
by adding subparagraph (E) to subsection (h)(6); and by
amending subsection (h)(8)(B)(i). Pub. L. No. 105-304,
112 Stat. 2860, 2862. That act also deleted paragraph
(9), thereby transferring the definitions for “WTO
Agreement” and “WTO member country”
from section 104A to section 101. Pub. L. No. 105-304,
112 Stat. 2860, 2863. See also endnote
25, supra.
30The WIPO Copyright and
Performances and Phonograms Treaties Implementation Act
of 1998 requires that subparagraph (C) of the definition
of “date of adherence or proclamation” take
effect upon entry into force of the WIPO Copyright Treaty
with respect to the United States. Pub. L. No. 105-304,
112 Stat. 2860, 2877.
31The WIPO Copyright and
Performances and Phonograms Treaties Implementation Act
of 1998 requires that subparagraph (D) of the definition
of “date of adherence or proclamation” take
effect upon entry into force of the WIPO Performances
and Phonograms Treaty with respect to the United States.
Pub. L. No. 105-304, 112 Stat. 2860, 2877.
32The WIPO Copyright and
Performances and Phonograms Treaties Implementation Act
of 1998 requires that subparagraph (C) of the definition
of “eligible country” take effect upon entry
into force of the WIPO Copyright Treaty with respect to
the United States. Pub. L. No. 105-304, 112 Stat. 2860,
2877.
33The WIPO Copyright and
Performances and Phonograms Treaties Implementation Act
of 1998 requires that subparagraph (D) of the definition
of “eligible country” take effect upon entry
into force of the WIPO Performance and Phonograms Treaty
with respect to the United States. Pub. L. No. 105-304,
112 Stat. 2860, 2877.
34The WIPO Copyright and
Performances and Phonograms Treaties Implementation Act
of 1998 requires that subparagraph (E) of the definition
of “restored work” take effect upon entry
into force of the WIPO Performances and Phonograms Treaty
with respect to the United States. Pub. L. No. 105-304,
112 Stat. 2860, 2877.
35In 1968, the Standard Reference
Data Act provided an exception to Section
105, Pub. L. No. 90-396, 82 Stat. 339. Section 6 of
that act amended title 15 of the United States Code
by authorizing the Secretary of Commerce, at 15 U.S.C.
290e, to secure copyright and renewal thereof on behalf
of the United States as author or proprietor “in
all or any part of any standard reference data which he
prepares or makes available under this chapter,”
and to “authorize the reproduction and publication
thereof by others.” See also section 105(f) of the
Transitional and Supplementary Provisions of the Copyright
Act of 1976, in Part I of the
Appendix. Pub. L. No. 94-553, 90 Stat. 2541.
36The Digital Performance
Right in Sound Recordings Act of 1995 amended section
106 by adding paragraph (6). Pub. L. No. 104-39, 109
Stat. 336. In 1999, a technical amendment substituted
“121” for “120.” Pub. L. No. 106-44,
113 Stat. 221, 222. The Intellectual Property and High
Technology Technical Amendments Act of 2002 amended section
106 by substituting sections “107 through 122”
for “107 through 121.” Pub. L. No. 107-273,
116 Stat. 1758, 1909.
37The Visual Artists Rights
Act of 1990 added section
106A. Pub. L. No. 101-650, 104 Stat. 5089, 5128. The
Act states that, generally, section 106A is to take effect
six months after the date of its enactment, that is, six
months after December 1, 1990, and that the rights created
by section 106A shall apply to (1) works created before
such effective date but title to which has not, as of
such effective date, been transferred from the author
and (2) works created on or after such effective date,
but shall not apply to any destruction, distortion, mutilation
or other modification (as described in section 106A(a)(3))
of any work which occurred before such effective date.
See also, endnote 3, chapter
3.
38The Visual Artists Rights
Act of 1990 amended section
107 by adding the reference to section 106A. Pub.
L. No. 101-650, 104 Stat. 5089, 5132. In 1992, section
107 was also amended to add the last sentence. Pub. L.
No. 102-492, 106 Stat. 3145.
39The Copyright Amendments
Act of 1992 amended section
108 by repealing subsection (i) in its entirety. Pub.
L. No. 102-307, 106 Stat. 264, 272. In 1998, the Sonny
Bono Copyright Term Extension Act amended section 108
by redesignating subsection (h) as (i) and adding a new
subsection (h). Pub. L. No. 105-298, 112 Stat. 2827, 2829.
Also in 1998, the Digital Millennium Copyright Act amended
section 108 by making changes in subsections (a), (b)
and (c). Pub. L. No. 105-304, 112 Stat. 2860, 2889.
40The Record Rental Amendment
of 1984 amended section 109
by redesignating subsections (b) and (c) as subsections
(c) and (d), respectively, and by inserting a new subsection
(b) after subsection (a). Pub. L. No. 98-450, 98 Stat.
1727. Section 4(b) of the Act states that the provisions
of section 109(b), as added by section 2 of the Act, “shall
not affect the right of an owner of a particular phonorecord
of a sound recording, who acquired such ownership before
[October 4, 1984], to dispose of the possession of that
particular phonorecord on or after such date of enactment
in any manner permitted by section 109 of title 17, United
States Code, as in effect on the day before the date of
the enactment of this Act.” Pub. L. No. 98-450,
98 Stat. 1727, 1728. Section 4(c) of the Act also states
that the amendments “shall not apply to rentals,
leasings, lendings (or acts or practices in the nature
of rentals, leasings, or lendings) occurring after the
date which is 13 years after [October 4, 1984]”
In 1988, the Record Rental Amendment Act of 1984 was amended
to extend the time period in section 4(c) from 5 years
to 13 years. Pub. L. No. 100-617, 102 Stat. 3194. In 1993,
the North American Free Trade Agreement Implementation
Act repealed section 4(c) of the Record Rental Amendment
of 1984. Pub. L. No. 103-182, 107 Stat. 2057, 2114. Also
in 1988, technical amendments to section 109(d) inserted
“(c)” in lieu of “(b)” and substituted
“copyright” in lieu of “coyright”
Pub. L. No. 100-617, 102 Stat. 3194.
The Computer Software Rental Amendments Act of 1990 amended
section 109(b) as follows:
1) paragraphs (2) and (3) were redesignated as paragraphs
(3) and (4), respectively; 2) paragraph (1) was struck
out and new paragraphs (1) and (2) were inserted in lieu
thereof; and 3) paragraph (4), as redesignated, was amended
in its entirety with a new paragraph (4) inserted in lieu
thereof. Pub. L. No. 101-650, 104 Stat. 5089, 5134. The
Act states that section 109(b), as amended, “shall
not affect the right of a person in possession of a particular
copy of a computer program, who acquired such copy before
the date of the enactment of this Act, to dispose of the
possession of that copy on or after such date of enactment
in any manner permitted by section 109 of title 17, United
States Code, as in effect on the day before such date
of enactment.” The Act also states that the amendments
made to section 109(b) “shall not apply to rentals,
leasings, or lendings (or acts or practices in the nature
of rentals, leasings, or lendings) occurring on or after
October 1, 1997.” However, this limitation, which
is set forth in the first sentence of section 804 (c)
of the Computer Software Rental Amendments Act of 1990,
at 104 Stat. 5136, was subsequently deleted in 1994 by
the Uruguay Round Agreements Act. Pub. L. No. 103-465,
108 Stat. 4809, 4974.
The Computer Software Rental Amendments Act of 1990 also
amended section 109 by
adding at the end thereof subsection (e). Pub. L. No.
101-650, 104 Stat. 5089, 5135. That Act states that the
provisions contained in the new subsection (e) shall take
effect 1 year after the date of enactment of such Act,
that is, one year after December 1, 1990. The Act also
states that such amendments so made “shall not apply
to public performances or displays that occur on or after
October 1, 1995.”
In 1994, the Uruguay Round Agreements Act amended section
109(a) by adding the second sentence, which begins
with “Notwithstanding the preceding sentence.”
Pub. L. No. 103-465, 108 Stat. 4809, 4981.
41In 1988, the Extension
of Record Rental Amendment amended section
110 by adding paragraph (10). Pub. L. No. 97-366,
96 Stat. 1759. In 1997, the Technical Corrections to the
Satellite Home Viewer Act amended section 110 by inserting
a semicolon in lieu of the period at the end of paragraph
(8); by inserting “; and” in lieu of the period
at the end of paragraph (9); and by inserting “(4)”
in lieu of “4 above” in paragraph (10). Pub.
L. No. 105-80, 111 Stat. 1529, 1534. The Fairness in Music
Licensing Act of 1998 amended section 110, in paragraph
5, by adding subparagraph (B) and by making conforming
amendments to subparagraph (A); by adding the phrase “or
of the audiovisual or other devices utilized in such performance”
to paragraph 7; and by adding the last paragraph to section
110 that begins “The exemptions provided under paragraph
(5).” Pub. L. No. 105-298, 112 Stat. 2827, 2830.
In 1999, a technical amendment made corrections to conform
paragraph designations that were affected by amendments
previously made by the Fairness in Music Licensing Act
of 1998. Pub. L. No. 106-44, 113 Stat. 221. The Technology,
Education, and Copyright Harmonization Act of 2002 amended
section 110 by substituting new language for paragraph
110(2) and by adding all the language at the end of section
110 that concerns paragraph 110(2). Pub. L. No. 107-273,
116 Stat. 1758, 1910.
42In 1986, section
111(d) was amended by striking out paragraph (1) and
by redesignating paragraphs (2), (3), (4) and (5) as paragraphs
(1), (2), (3) and (4), respectively. Pub. L. 99-397, 100
Stat. 848. Also, in 1986, section 111(f) was amended by
substituting “subsection (d)(1)” for “subsection
(d)(2)” in the last sentence of the definition of
“secondary transmission” and by adding a new
sentence after the first sentence in the definition of
“local service area of a primary transmitter.”
Pub. L. No. 99-397, 100 Stat. 848.
The Satellite Home Viewer Act of 1988 amended subsection
111(a) by striking “or” at the end of
paragraph (3), by redesignating paragraph (4) as paragraph
(5) and by inserting a new paragraph (4). Pub. L. No.
100-667, 102 Stat. 3935, 3949. That Act also amended section
(d)(1)(A) by adding the second sentence which begins with
“In determining the total number.” Id.
The Copyright Royalty Tribunal Reform Act of 1993 amended
section 111(d) by substituting
“Librarian of Congress” for “Copyright
Royalty Tribunal” where appropriate, by inserting
a new sentence in lieu of the second and third sentences
of paragraph (2) and, in paragraph (4), by amending subparagraph
(B) in its entirety with substitute language. Pub. L.
No. 103-198, 107 Stat. 2304, 2311.
The Satellite Home Viewer Act of 1994 amended section
111(f) by inserting “microwave” after
“wires, cables,” in the paragraph relating
to the definition of “cable system” and by
inserting new matter after “April 15, 1976,”
in the paragraph relating to the definition of “local
service area of a primary transmitter.” Pub. L.
No. 103-369, 108 Stat. 3477, 3480. That Act provides that
the amendment “relating to the definition of the
local service area of a primary transmitter, shall take
effect on July 1, 1994.” Id.
In 1995, the Digital Performance in Sound Recordings
Act amended section 111(c)(1)
by inserting “and section 114(d)” in the first
sentence, after “of this subsection.” Pub.
L. No. 104-39, 109 Stat. 336, 348.
The Satellite Home Viewer Improvement Act of 1999 amended
section 111 by substituting
“statutory” for “compulsory” and
“programming” for “programing,”
wherever they appeared. Pub. L. No. 106-113, 113 Stat.
1501, app. I at 1501A-543. The Act also amended sections
111(a) and (b) by inserting “performance or display
of a work embodied in a primary transmission” in
lieu of “primary transmission embodying a performance
or display of a work.” It amended paragraph (1)
of section 111(c) by inserting “a performance or
display of a work embodied in” after “by a
cable system of” and by striking “and embodying
a performance or display of a work.” It amended
subparagraphs (3) and (4) of section 111(a) by inserting
“a performance or display of a work embodied in
a primary transmission” in lieu of “a primary
transmission” and by striking “and embodying
a performance or display of a work.” Id.
43Royalty rates specified
by the compulsory licensing provisions of this section
are subject to adjustment by copyright arbitration royalty
panels appointed and convened by the Librarian of Congress
in accordance with the provisions of Chapter
8 of title 17 of the United States Code, as
amended by the Copyright Royalty Tribunal Reform Act of
1993, Pub. L. No. 103-198, 107 Stat. 2304, 2311.
44In 1998, the Digital Millennium
Copyright Act amended section
112 by redesignating subsection (a) as subsection
(a)(1); by redesignating former sections (a)(1), (a)(2)
and (a)(3) as subsections (a)(1)(A), (a)(1)(B) and (a)(1)(C),
respectively; by adding subsection (a)(2); and by amending
the language in new subsection (a)(1). Pub. L. No. 105-304,
112 Stat. 2860, 2888. The Digital Millennium Copyright
Act also amended section 112 by redesignating subsection
(e) as subsection (f) and adding a new subsection (e).
Pub. L. No. 105-304, 112 Stat. 2860, 2899. In 1999, a
technical amendment to section 112(e) redesignated paragraphs
(3) through (10) as (2) through (9) and corrected the
paragraph references throughout that section to conform
to those redesignations. Pub. L. No. 106-44, 113 Stat.
221. Stat. 221. The Technology, Education, and Copyright
Harmonization Act of 2002 amended section 112 by redesignating
subsection 112(f) as 112(g) and adding a new paragraph
(f). Pub. L. No. 107-273, 116 Stat. 1758, 1912.
45The Visual Artists Rights
Act of 1990 amended section
113 by adding subsection (d) at the end thereof. Pub.
L. No. 101-650, 104 Stat. 5089, 5130.
46The Digital Performance
Right in Sound Recordings Act of 1995 amended section
114 as follows: 1) in subsection (a), by striking
“and (3)” and inserting in lieu thereof “(3)
and (6)”; 2) in subsection (b) in the first sentence,
by striking “phonorecords, or of copies of motion
pictures and other audiovisual works,” and inserting
“phonorecords or copies”; and 3) by striking
subsection (d) and inserting in lieu thereof new subsections
(d), (e), (f), (g), (h), (i), and (j). Pub. L. No. 104-39,
109 Stat. 336. In 1997, subsection 114(f) was amended
by inserting all the text that appears after “December
31, 2000” (which is now December 31, 2001, in paragraph
(1)(A)) and by striking “and publish in the Federal
Register.” Pub. L. No. 105-80, 111 Stat. 1529, 1531.
In 1998, the Digital Millennium Copyright Act amended
section 114(d) by replacing
paragraphs (1)(A) and (2) with amendments in the nature
of substitutes. Pub. L. No. 105-304, 112 Stat. 2860, 2890.
That Act also amended section 114(f) by revising the title;
by redesignating paragraph (1) as paragraph (1)(A); by
adding paragraph (1)(B) in lieu of paragraphs (2), (3),
(4) and (5); and by amending the language in newly designated
paragraph (1)(A), including revising the effective date
from December 31, 2000, to December 31, 2001. Pub. L.
No. 105-304, 112 Stat. 2860, 2894. The Digital Millennium
Copyright Act also amended subsection 114(g) by substituting
“transmission” in lieu of “subscription
transmission,” wherever it appears and, in the first
sentence in paragraph (g)(1), by substituting “transmission
licensed under a statutory license” in lieu of “subscription
transmission licensed.” Pub. L. No. 105-304, 112
Stat. 2860, 2897. That Act also amended subsection 114(j)
by redesignating paragraphs (2), (3), (5), (6), (7) and
(8) as (3), (5), (9), (12), (13) and (14), respectively;
by amending paragraphs (4) and (9) in their entirety and
resdesignating them as paragraphs (7) and (15), respectively;
and by adding new definitions, including, paragraph (2)
defining “archived program,” paragraph (4)
defining “continuous program,” paragraph (6)
defining “eligible nonsubscription transmission,”
paragraph (8) defining “new subscription service,”
paragraph (10) defining “preexisting satellite digital
audio radio service” and paragraph (11) defining
“preexisting subscription service.” Pub. L.
No. 105-304, 112 Stat. 2860, 2897.
The Small Webcaster Settlement Act of 2002 amended section
114 by adding paragraph (5) to subsection 114(f), by amending
paragraph 114(g)(2) and by adding paragraph 114(g)(3).
Pub. L. No. 107-321, 116 Stat. 2780, 2781, and 2784.
47The Digital Millennium
Copyright Act states that “the publication of notice
of proceedings under section
114(f)(1) . . . as in effect upon the effective date
of [the Digital Performance Right in Sound Recordings
Act of 1995, Pub. L. No. 104-39, 109 Stat. 336], for the
determination of royalty payments shall be deemed to have
been made for the period beginning on the effective date
of that Act and ending on December 1, 2001.” Pub.
L. No. 105-304, 112 Stat. 2860, 2899.
48The Digital Millennium
Copyright Act contains an additional effective date provision
for the amendment that changed the date in subsection
114(f)(1)(A) to December 31, 2001. This provision
is paragraph 405(a)(5) of the Digital Millennium Copyright
Act, which is in Appendix V
of this publication.
49The Record Rental Amendment
of 1984 amended section 115
by redesignating paragraphs (3) and (4) of subsection
(c) as paragraphs (4) and (5), respectively, and by adding
a new paragraph (3). Pub. L. No. 98-450, 98 Stat. 1727.
In 1997, section 115 was
amended by striking “and publish in the Federal
Register” in subparagraph 115(c)(3)(D). Pub. L.
No. 105-80, 111 Stat. 1529, 1531. The same legislation
also amended section 115(c)(3)(E) by replacing the phrases
“sections 106(1) and (3)” and “sections
106(1) and 106(3)” with “paragraphs (1) and
(3) of section 106.” Pub. L. No. 105-80, 111 Stat.
1529, 1534.
The Digital Performance Right in Sound Recordings Act
of 1995 amended section 115
as follows: 1) in the first sentence of subsection (a)(1),
by striking “any other person” and inserting
in lieu thereof “any other person, including those
who make phonorecords or digital phonorecord deliveries,”;
2) in the second sentence of the same subsection, by inserting
before the period “including by means of a digital
phonorecord delivery”; 3) in the second sentence
of subsection (c)(2), by inserting “and other than
as provided in paragraph (3),” after “For
this purpose,”; 4) by redesignating paragraphs (3),
(4) and (5) of subsection (c) as paragraphs (4), (5) and
(6), respectively, and by inserting after paragraph (2)
a new paragraph (3); and (5) by adding after subsection
(c) a new subsection (d). Pub. L. No. 104-39, 109 Stat.
336, 344.
50Royalty rates specified
by the compulsory licensing provisions of this section
are subject to adjustment by copyright arbitration royalty
panels appointed and convened by the Librarian of Congress
in accordance with the provisions of Chapter
8 of title 17 of the United States Code, as
amended by the Copyright Royalty Tribunal Reform Act of
1993. Pub. L. No. 103-198, 107 Stat. 2304.
51Pursuant to this subsection
and section 803(a)(3) of
title 17, the current rates have been established by regulation
and may be found at 37 C.F.R. 255.
52The Berne Convention Implementation
Act of 1988 added section 116A.
Pub. L. No. 100-568, 102 Stat. 2853, 2855. The Copyright
Royalty Tribunal Reform Act of 1993 redesignated section
116A as section 116; repealed
the preexisting section 116; in the redesignated section
116, struck subsections (b), (e), (f) and (g), and redesignated
subsections (c) and (d) as subsections (b) and (c), respectively;
and substituted, where appropriate, “Librarian of
Congress” or “copyright arbitration royalty
panel” for “Copyright Royalty Tribunal.”
Pub. L. No. 103-198, 107 Stat. 2304, 2309. In 1997, section
116 was amended by rewriting subsection (b)(2) and by
adding a new subsection (d). Pub. L. No. 105-80, 111 Stat.
1529, 1531.
53In 1980, section
117 was amended in its entirety. Pub. L. No. 96-517,
94 Stat. 3015, 3028. In 1998, the Computer Maintenance
Competition Assurance Act amended section 117 by inserting
headings for subsections (a) and (b) and by adding subsections
(c) and (d). Pub. L. No. 105-304, 112 Stat. 2860, 2887.
54The Copyright Royalty Tribunal
Reform Act of 1993 amended section
118 by striking the first two sentences of subsection
(b), by substituting a new first sentence in paragraph
(3) and by making general conforming amendments throughout.
Pub. L. 103-198, 107 Stat. 2304, 2309. In 1999, a technical
amendment deleted paragraph (2) from section 118(e). Pub.
L. No. 106-44, 113 Stat. 221, 222. The Intellectual Property
and High Technology Technical Amendments Act of 2002 amended
section 118 by deleting “to it” in the second
sentence in subsection (b)(1). Pub. L. No. 107-273, 116
Stat. 1758, 1909.
55The Satellite Home Viewer
Act of 1988 added section 119.
Pub. L. No. 100-667, 102 Stat. 3935, 3949. The Copyright
Royalty Tribunal Reform Act of 1993 amended subsections
(b) and (c) of section 119 by substituting “Librarian
of Congress” in lieu of “Copyright Royalty
Tribunal” wherever it appeared and by making related
conforming amendments. Pub. L. No. 103-198, 107 Stat.
2304, 2310. The Copyright Royalty Tribunal Reform Act
of 1993 also amended paragraph (c)(3) by deleting subparagraphs
(B), (C), (E) and (F) and by redesignating subparagraph
(D) as (B), (G) as (C) and (H) as (D). The redesignated
subparagraph (C) was amended in its entirety and paragraph
(c)(4) was deleted. Id.
The Satellite Home Viewer Act of 1994 further amended
section 119. Pub. L. No.
103-369, 108 Stat. 3477. In 1997, technical corrections
and clarifications were made to the Satellite Home Viewer
Act of 1994. Pub. L. No. 105-80, 111 Stat. 1529. Those
two acts amended section 119 as follows: 1) by deleting
or replacing obsolete effective dates; 2) in subsection
(a)(5), by adding subparagraph (D); 3) in subsection (a),
by adding paragraphs (8), (9) and (10); 4) in subsection
(b)(1)(B), by adjusting the royalty rate for retransmitted
superstations; 5) in subsection (c)(3), by replacing subparagraph
(B) with an amendment in the nature of a substitute; 6)
in subsections (d)(2) and (d)(6), by modifying the definition
of “network station” and “satellite
carrier”; and 7) in subsection (d), by adding paragraph
11 to define “local market.”
Pursuant to section 4 of the Satellite Home Viewer Act
of 1994, the changes made by that Act to section
119 of the United States Code ceased to be
effective on December 31, 1999. Pub. L. No. 103-369, 108
Stat. 3477, 3481. However, section 1003 of the Satellite
Home Viewer Improvement Act of 1999 extended that date
to December 31, 2004. Pub. L. No. 106-113, 113 Stat. 1501,
app. I at 1501A-527.
The Digital Performance Right in Sound Recordings Act
of 1995 amended section 119
in the first sentence of subsections (a)(1) and (a)(2)(A),
respectively, by inserting the words “and section
114(d)” after “of this subsection.”
Pub. L. No. 104-39, 109 Stat. 336, 348. In 1999, a technical
amendment substituted “network station's”
for “network's stations” in section 119(a)(8)(C)(ii).
Pub. L. No. 106-44, 113 Stat. 221, 222.
The Satellite Home Viewer Improvement Act of 1999 amended
section 119(a)(1) as follows:
1) by inserting “AND PBS SATELLITE FEED” after
“SUPERSTATIONS” in the paragraph heading;
2) by inserting “performance or display of a work
embodied in a primary transmission made by a superstation
or by the Public Broadcasting Service satellite feed”
in lieu of “primary transmission made by a superstation
and embodying a performance or display of a work,”
(see endnote 55, infra) and 3) by adding the last
sentence, which begins “In the case of the Public
Broadcasting Service.” Pub. L. No. 106-113, 113
Stat. 1501, app. I at 1501A-530 and 543. The Act states
that these amendments shall be effective as of July 1,
1999, except for a portion of the second item, starting
with “performance or display” through “superstation.”
Pub. L. No. 106-113, 113 Stat. 1501, app. I at 1501A-544.
The Act also amended section 119(a) by inserting the phrase
“with regard to secondary transmissions the satellite
carrier is in compliance with the rules, regulations,
or authorization of the Federal Communications Commission
governing the carriage of television broadcast stations
signals” in paragraphs (1) and (2) and by inserting
into paragraph (2), “a performance or display of
a work embodied in a primary transmission made by a network
station” in lieu of “programming contained
in a primary transmission made by a network station and
embodying a performance or display of a work.” Id.
at 1501A-531 and 544. The Act amended section 119(a)(2)
by substituting new language for paragraph (B) and, in
paragraph (C), by deleting “currently” after
“the satellite carrier” near the end of the
first sentence. Id. at 1501A-528 and 544. It also
amended section 119(a)(4) by inserting “a performance
or display of a work embodied in” after “by
a satellite carrier of” and by deleting “and
embodying a performance or display of a work.” Id.
at 1501A-544. The Satellite Home Viewer Improvement Act
of 1999 further amended section 119(a) by adding subparagraph
(E) to paragraph (5). Id. at 1501A-528. It amended
section 119(a)(6) by inserting “performance or display
of a work embodied in” after “by a satellite
carrier of” and by deleting “and embodying
a performance or display of a work.” Id.
The Act also amended section 119(a) by adding paragraphs
(11) and (12). Id. at 1501A-529 and 531.
The Satellite Home Viewer Improvement Act of 1999 amended
section 119(b)(1) by inserting
“or the Public Broadcasting Service satellite feed”
into subparagraph (B). (See endnote 60, infra.)
Id. at 1501A-530. The Act amended section 119(c)
by adding a new paragraph (4). Id. at 1501A-527.
The Act amended section 119(d) by substituting new language
for paragraphs (9) through (11) and by adding paragraph
(12). Id. at 1501A-527, 530 and 531. The Act substituted
new language for section 119(e). Id. at 1501A-529.
The Intellectual Property and High Technology Technical
Amendments Act of 2002 amended section 119(a)(6) by substituting
“of a performance” for “of performance.”
Pub. L. No. 107-273, 116 Stat. 1758, 1909. The Act also
amended section 119(b)(1)(A) by substituting “retransmitted”
and “retransmissions” for “transmitted”
and “transmitted,” respectively, in paragraph
(1)(A). Id.
56The Satellite Home Viewer
Improvement Act of 1999 amended section
119(a)(1) by deleting “primary transmission
made by a superstation and embodying a performance or
display of a work” and inserting in its place “performance
or display of a work embodied in a primary transmission
made by a superstation.” Pub. L. No. 106-113, 113
Stat. 1501, app. I at 1501A-543. This amendatory language
did not take into account a prior amendment that had inserted
“or by the Public Broadcasting Service satellite
feed” after “superstation” into the
phrase quoted above that was deleted. Pub. L. No. 106-113,
113 Stat. 1501, app. I at 1501A-530. There was no mention
of the phrase “or by the Public Broadcasting Service
satellite feed” in that second amendment. that second
amendment. The Intellectual Property and High Technology
Technical Amendments Act of 2002 clarified these provisions.
Pub. L. No. 107-273, 116 Stat. 1758, 1908. The Act deleted
the first change and amended the second to clarify that
the amended language should read, “performance or
display of a work embodied in a primary transmission made
by a superstation or by the Public Broadcasting Service
satellite feed.” Id.
57The Satellite Home Viewer
Act of 1994 states that “The provisions of section
119(a)(5)(D) . . . relating to the burden of proof
of satellite carriers, shall take effect on January 1,
1997, with respect to civil actions relating to the eligibility
of subscribers who subscribed to service as an unserved
household before the date of the enactment of this Act.”
Pub. L. No. 103-369, 108 Stat. 3477, 3481.
58The Intellectual Property
and High Technology Technical Amendments Act of 2002 made
a technical correction to insert the word “a”
before “performance.” Pub. L. No. 107-273,
116 Stat. 1758, 1909.
59The Satellite Home Viewer
Act of 1994 states that “The provisions of section
119(a)(8)[,] . . . relating to transitional signal
intensity measurements, shall cease to be effective on
December 31, 1996.” Pub. L. No. 103-369, 108 Stat.
3477, 3481.
60The Satellite Home Viewer
Improvement Act of 1999 stated that section
119(a), “as amended by section 1005(e)”
of the same Act, was amended to add a new paragraph at
the end of that subsection. Pub. L. No. 106-113, 113 Stat.
1501, app. I at 1501A-531. The Intellectual Property and
High Technology Technical Amendments Act of 2002 made
a technical correction to clarify that the amendment was
to section 119(a) as amended by “section 1005(d)”
of the Satellite Home Viewer Improvement Act of 1999 rather
than “section 1005(e).” Pub. L. No. 107-273,
116 Stat. 1758, 1908.
61The Intellectual Property
and High Technology Technical Amendments Act of 2002 made
a technical correction to the Satellite Home Viewer Improvement
Act of 1999 (Pub. L. No. 106-113, 113 Stat. 1501, app.
I at 1501A-531) to clarify that subpart 119(b)(1)(B)(ii)
was amended, not subpart 119(b)(1)(B)(iii). Pub. L. No.
107-273, 116 Stat. 1758, 1908.
62The Satellite Home Viewer
Improvement Act of 1999 states that section
119(c)(4) shall be effective as of July 1, 1999. Pub.
L. No. 106-113, 113 Stat. 1501, app. I at 1501A-527.
63The Satellite Home Viewer
Improvement Act of 1999 states that section
119(c)(5) shall be effective as of July 1, 1999. Pub.
L. No. 106-113, 113 Stat. 1501, app. I at 1501A-544.
64The Satellite Home Viewer
Improvement Act of 1999 states that section
119(d)(9) shall be effective as of July 1, 1999. Pub.
L. No. 106-113, 113 Stat. 1501, app. I at 1501A-544.
65The Satellite Home Viewer
Improvement Act of 1999 states that section
119(d)(12) shall be effective as of July 1, 1999.
Pub. L. No. 106-113, 113 Stat. 1501, app. I at 1501A-544.
6666. In 1990, the Architectural
Works Copyright Protection Act added section 120. Pub.
L. No. 101-650, 104 Stat. 5089, 5133. The effective date
provision of the Act states that its amendments apply
to any work created on or after the date it was enacted,
which was December 1, 1990. It also states that the amendments
apply to “any architectural work that, on [December
1, 1990], is unconstructed and embodied in unpublished
plans or drawings, except that protection for such architectural
work under title 17, United States Code, by virtue of
the amendments made by [the Act], shall terminate on December
31, 2002, unless the work is constructed by that date.”
Id., 104 Stat. 5089, 5134.
67The Legislative Branch
Appropriations Act, 1997, added section
121. Pub. L. No. 104-197, 110 Stat. 2394, 2416. The
Work Made for Hire and Copyright Corrections Act of 2000
amended section 121 by substituting “section 106”
for “sections 106 and 710.” Pub. L. No. 106-379,
114 Stat. 1444, 1445.
68The Satellite Home Viewer
Improvement Act of 1999 added section
122. Pub. L. No. 106-113, 113 Stat. 1501, app. I at
1501A-523. The Act states that section 122 shall be effective
as of November 29, 1999. Pub. L. No. 106-113, 113 Stat.
1501, app. I at 1501A-544.