Coalition for Networked Information Information Policies: A Compilation of Position Statements, Principles, Statutes, and Other Pertinent StatementsCopyright Act of 1976
Source: Title 17, United States Code, Sections 101-810.
[Sections 106, 107, and 108 of the U.S. Copyright Act are of particular interest to the projected user community of this information. However, in order to have the convenience of access to the complete act available it is provided here in its entirety.]
Section 101. Definitions.
-
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.
"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 "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.
"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.
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 processor, in the case of a motion picture or other audiovisual work, to show individual images nonsequentially.
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 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.
"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, technical drawings, diagrams, and models. 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.
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.
To perform or display a work "publicly" means-
(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.
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.
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.
A "work of the United States Government" is a work prepared by any 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.
Section 102. Subject matter of copyright: In general.
-
(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; and
(7) sound recordings.
Section 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.
Section 104. Subject matter of copyright: National origin.
-
(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 section 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 foreign
nation that is a party to a copyright treaty to which the
United States is also a 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 party to the Universal Copyright Convention; or
(3) the work is first published by the United Nations or any of its specialized agencies, or by the Organization of American States; or
(4) 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.
Section 105. Subject matter of copyright: United States Government works.
-
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.
Section 106. Exclusive rights in copyrighted works.
-
Subject to sections 107 through 118, 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; and
(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 publicly.
Section 107. Limitations on exclusive rights: Fair use.
-
Notwithstanding the provisions of section 106, 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 word as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
Section 108. Limitations on exclusive rights: Reproduction by libraries and archives.
-
(a) 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, 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
(c) The right of reproduction under this section applies to a copy or phonorecord of a published work duplicated in facsimile form solely for the purpose of replacement of a copy or phonorecord that is damaged, deteriorating, lost, or stolen, if the library or archives has, after a reasonable effort, determined that an unused replacement cannot be obtained at a fair price.
(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.
-
(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.
-
(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 new program, subject to clauses (1), (2), and (3) of subsection (a); or
(4) in any way affects the rights 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.
-
(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 cause 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.
(i) Five years from the effective date of this Act, and at five-year intervals thereafter, the Register of Copyrights, after consulting with representatives of authors, book and periodical publishers, and other owners of copyrighted materials, and with representatives of library users and librarians, shall submit to the Congress a report setting forth the extent to which this section has achieved the intended statutory balancing of the rights of creators, and the needs of users. The report should also describe any problems that may have arisen, and present legislative or other recommendations, if warranted.
Section 109. Limitations on exclusive rights: Effect of transfer of particular copy or phonorecord.
-
(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.
(b)
-
(1) Notwithstanding the provisions of subsection (a), unless
authorized by the owners of copyright in the sound recording and in the
musical works embodied therein, the owner of a particular phonorecord
may not, for purposes of direct or indirect commercial advantage,
dispose of, or authorize the disposal of, the possession of that
phonorecord 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.
(2) 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 or the Federal Trade Commission Act to the extent that section relates to unfair methods of competition.
(3) Any person who distributes a phonorecord in violation of clause (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.
(d) The privileges prescribed by subsections (a) and (b) [so as amended, should be "(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.
Section 110. Limitations on exclusive rights: Exemption of certain performances and displays.
-
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) performance of a nondramatic literary or musical work or display of a work, by or in the course of a transmission, if-
-
(A) the performance or display is a regular part of the
systematic instructional activities of a governmental body or a
nonprofit educational institution; and
(B) the performance or display is directly related and of assistance to the teaching content of the transmission; and
(C) the transmission is made primarily for-
-
(i) reception in classrooms or similar places normally to
instruction, or
(ii) reception by persons to whom the transmission is because their disabilities or other special circumstances prevent their attendance in classrooms or similar places normally devoted to instruction, or
(iii) reception by officers or employees of governmental bodies as a part of their official duties or employment;
(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;
-
(A) a direct charge is made to see or hear the transmission; or
(B) the transmission thus received is further transmitted to the public;
(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, 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 advantages 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));
(10) notwithstanding paragraph 4 above, 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.
Section 111. Limitations on exclusive rights: Secondary transmissions.
-
(a) Certain Secondary Transmissions Exempted. - The secondary
transmission of a primary transmission embodying a performance or
display of a work 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, or 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; or
(4) 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.
-
(1) the primary transmission is made by a broadcast station
licensed by the Federal Communication; 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.
-
(1) Subject to the provisions of clauses (2), (3), and (4) of this
subsection, secondary transmissions 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 shall be subject to compulsory
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 recorded the notice specified by subsection (d) and deposited the statement of account and royalty fee required by subsection (d).
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 primary transmission made by a broadcast station licensed 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 section 509, if (A) with respect to Canadian signals, the community of the cable system is located more than 150 miles for 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.
-
(1) For any secondary transmission to be subject to compulsory
licensing under subsection (c), the cable system shall, at least one
month before the date of the commencement of operations of the
cable system or within one hundred and eighty days after the
enactment of this Act, whichever is later, and thereafter within
thirty days after each occasion on which the ownership or control or
the signal carriage complement of the cable system changes, record
in the Copyright Office a notice including a statement of identity
and address of the person who owns or operates the secondary
transmission service or has power to exercise primary control over it,
together with the name and location of the primary transmitter or
primary transmitters whose signals are regularly carried by the
cable system, and thereafter, from time to time, such further
information as the Register of Copyrights, after consultation with
the Copyright Royalty Tribunal (if and when the Tribunal has been
constituted), shall prescribe by regulation to carry out the purpose of
this clause.
(2) A cable system whose secondary transmissions have been subject to compulsory licensing under subsection (c) shall, on a semiannual basis, deposit with the Register of Copyrights, in accordance with requirements that the Register shall, after consultation with the Copyright Royalty Tribunal (if and when the Tribunal has been constituted), 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 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, after consultation with the Copyright Royalty Tribunal (if
and when the Tribunal has been constituted), from time to time
prescribe by regulation. 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 programing 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
(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.
(4) The royalty fees thus deposited shall, in accordance with the procedures provided by clause (5), 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 (2)(A); and
(C) any such owner whose work was included in nonnetwork programing 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.
-
(A) During the month of July in each year, every person claiming
to be entitled to compulsory license fees for secondary
transmissions shall file a claim with the Copyright Royalty
Tribunal, in accordance with requirements that the Tribunal
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
compulsory 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 Copyright Royalty Tribunal shall determine whether there exists a controversy concerning the distribution of royalty fees. If the Tribunal determines that no such controversy exists, it shall, after deducting its reasonable administrative costs under this section, distribute such fees to the copyright owners entitled, or to their designated agents. If the Tribunal finds the existence of a controversy, it shall, pursuant to chapter 8 of this title, conduct a proceeding to determine the distribution of royalty fees.
(C) During the pendency of any proceeding under this subsection, the Copyright Royalty Tribunal 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.
-
(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
(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.
-
(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.
(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 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.
-
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 transmission of such signals or programs by wires, cables, 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)(2), 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, regulation, and authorizations of the Federal Communications Commission in effect on April 15, 1976, 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.
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.
"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."
A "distant signal equivalent" is the value assigned to the secondary transmission of any nonnetwork television programing carried by a cable system in whole or in part beyond the local service area of the primary transmitter of such programing. 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 programing 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 non-live 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 programing 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 programing 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 system" is a television station that is a noncommercial educational broadcast station as defined in section 397 of title 47.
Section 112. Limitations on exclusive rights: Ephemeral recordings.
-
(a) 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 or transfer of the copyright or under the limitations on exclusive
rights in sound recordings specified by section 114(a), to make no more
than one copy or phonorecord of a particular transmission program
embodying the performance or display, if-
-
(1) 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
(2) 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
(3) 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.
-
(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.
-
(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.
-
(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 or 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.
Section 113. Scope of exclusive rights in pictorial, graphic, and sculptural work.
-
(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.
Section 114. Scope of exclusive rights in sound recordings.
-
(a) The exclusive rights of the owner of copyright in a sound recording
are limited to the rights specified by clauses (1), (2), and (3) 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 of copies of motion pictures and other audiovisual works, 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) On January 3, 1978, the Register of Copyrights, after consulting with representatives of owners of copyrighted materials, representatives of the broadcasting, recording, motion picture, entertainment industries, and arts organizations, representatives of organized labor and performers of copyrighted materials, shall submit to the Congress a report setting forth recommendations as to whether this section should be amended to provide for performers and copyright owners of copyrighted material any performance rights in such material. The report should describe the status of such rights in foreign countries, the views of major interested parties, and specific legislative or other recommendations, if any.
Section 115. Scope of exclusive rights in nondramatic musical works: Compulsory license for making and distributing phonorecords.
-
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 may, by complying with
the provisions of this section, obtain a compulsory license only if
his or her primary purpose in making phonorecords is to distribute
them to the public for private use. A person may 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.
-
(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.
-
(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, 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, which amount is larger.
(3) 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.
(4) 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.
(5) 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.
Section 116. Scope of exclusive rights in nondramatic musical works: Public performances by means of coin-operated phonorecord players.
-
(a) Limitation on Exclusive Right.- In the case of a nondramatic
musical work embodied in a phonorecord, the exclusive right under
clause (4) of section 106 to perform the work publicly by means of a coin-
operated phonorecord player is limited as follows:
-
(1) The proprietor of the establishment in which the public
performance takes place is not liable for infringement with respect to
such public performance unless-
-
(A) such proprietor is the operator of the phonorecord player;
or
(B) such proprietor refuses or fails, within one month after receipt by registered or certified mail of a request, at a time during which the certificate required by clause (1)(C) of subsection (b) is not affixed to the phonorecord player, by the copyright owner, to make full disclosure, by registered or certified mail, of the identity of the operator of the operator of the phonorecord player.
-
Any operator who wishes to obtain a compulsory license for
the public performance of works on a coin-operated phonorecord player
shall fulfill the following requirements:
-
(A) Before or within one month after such performances are made
available on a particular phonorecord player, and during the month
of January in each succeeding year that such performances are made
available on that particular phonorecord player, the operator shall
file in the Copyright Office, in accordance with requirements that
the Register of Copyrights, after consultation with the Copyright
Royalty Tribunal (if and when the Tribunal has been constituted),
shall prescribe by regulation, an application containing the name and
address of the operator of the phonorecord player and the
manufacturer and serial number or other explicit identification of the
phonorecord player, and deposit with the Register of Copyrights a
royalty fee for the current calendar year of $8 for that particular
phonorecord player. If such performances are made available on a
particular phonorecord player for the first time after July 1 of any
year, the royalty fee to be deposited for the remainder of that year
shall be $4.
(B) Within twenty days of receipt of an application and a royalty fee pursuant to subclause (A), the Register of Copyrights shall issue to the applicant a certificate for the phonorecord player.
(C) On or before March 1 of the year in which the certificate prescribed by subclause (B) of this clause is issued, or within ten days after the date of issue of the certificate, the operator shall affix to the particular phonorecord player, in a position where it can be readily examined by the public, the certificate, issued by the Register of Copyrights under subclause (B) of the latest application made by such operator under subclause (A) of this clause with respect to that phonorecord player.
-
(1) 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 Copyright
Royalty Tribunal as provided by this title. The Register shall submit
to the Copyright Royalty Tribunal,on an annual bases, a detailed
statement of account covering all fees received for the relevant period
provided by subsection(b).
(2) During the month of January in each year, every person claiming to be entitled to compulsory license fees under this section for performances during the preceding twelve-month period shall file a claim with the Copyright Royalty Tribunal, in accordance with requirements that the Tribunal shall prescribe by regulation. Such claim shall include an agreement to accept as final, except as provided in section 810 of this title, the determination of the Copyright Royalty Tribunal in any controversy concerning the distribution of royalty fees deposited under subclause (A) of subsection (b)(1) of this section to which the claimant is a party. Notwithstanding any provisions of the antitrust laws, for purposes of this subsection any claimants may agree among themselves as to the proportionate division of compulsory 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.
(3) After the first day of October of each year, the Copyright Royalty Tribunal shall determine whether there exists a controversy concerning the distribution of royalty fees deposited under subclause (A) of subsection (b)(1). If the Tribunal determines that no such controversy exists, it shall, after deducting its reasonable administrative costs under this section, distribute such fees to the copyright owners entitled, or to their designated agents. If it finds that such a controversy exists, it shall, pursuant to chapter 8 of this title, conduct a proceeding to determine the distribution of royalty fees.
(4) The fees to be distributed shall be divided as follows:
-
(A) to every copyright owner not affiliated with a performing
rights society, the pro rata share of the fees to be distributed to
which such copyright owner proves entitlement.
(B) to the performing rights societies, the remainder of the fees to be distributed in such pro rata shares as they shall by agreement stipulate among themselves, or, if they fail to agree, the pro rate share to which such performing rights societies prove entitlement.
(C) during the pendency of any proceeding under this section, the Copyright Royalty Tribunal 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) Definitions.-As used in this section, the following terms and their variant forms mean the following:
-
(1) A "coin-operated phonorecord player" is a machine or device
that-
-
(A) is employed solely for the performance of non-dramatic
musical works by means of phonorecords upon being activated by
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 of titles of all the musical works available for performance on it, which list 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.
-
(A) owns a coin-operated phonorecord player; or
(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.
Section 117. Limitations on exclusive rights: Computer programs.
-
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. 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.
Section 118. Scope of exclusive rights: Use of certain works in connection with noncommercial broadcasting.
-
(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) Not later than thirty days after the Copyright Royalty Tribunal has been constituted in accordance with section 802, the Chairman of the Tribunal shall cause notice to be published in the Federal Register of the initiation of proceedings for the purpose of determining reasonable terms and rates of royalty payments for the activities specified by subsection (d) with respect to published nondramatic musical works and published pictorial, graphic, and sculptural works during a period beginning as provided in clause (3) of this subsection and ending on December 31, 1982. Copyright owners and public broadcasting entities shall 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, within one hundred and twenty
days after publication of the notice specified in this subsection,
submit to the Copyright Royalty Tribunal proposed licenses covering
such activities with respect to such works. The Copyright Royalty
Tribunal shall proceed on the basis of the proposals submitted to it as
well as any other relevant information. The Copyright Royalty
Tribunal 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 Tribunal: 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) Within six months, but not earlier than one hundred and twenty days, from the date of publication of the notice specified in this subsection the Copyright Royalty Tribunal shall make a determination and publish in the Federal Register a schedule of rates and terms which, subject to clause (2) of this subsection, shall be binding on all owners of copyright in works specified by this subsection and public broadcasting entities, regardless of whether or not such copyright owners and public broadcasting entities have submitted proposals to the Tribunal. In establishing such rates and terms the Copyright Royalty Tribunal may consider the rates for comparable circumstances under voluntary license agreements negotiated as provided in clause (2) of this subsection. The Copyright Royalty Tribunal 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.
(4) With respect to the period beginning on the effective date of this title and ending on the date of publication of such rates and terms, this title shall not afford to owners of copyright or public broadcasting entities any greater or lesser rights with respect to the activities specified in subsection (d) as applied to works specified in this subsection than those afforded under the law in effect on December 31, 1977, as held applicable and construed by a court in an action brought under this title.
(d) Subject to the transitional provisions of subsection (b)(4), and 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 the Copyright Royalty Tribunal 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, where such production, reproduction, or distribution is made by a nonprofit institution or organization solely for the purpose of transmission specified in clause (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 clause (1), and the performance or display of the contents of such program under the conditions specified by clause (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 clause (1), and are destroyed before or at the end of such period. No person supplying, in accordance with clause (2), a reproduction of a transmission program to governmental bodies or nonprofit institutions under this clause 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 clause: And provided further, That if such body or institution itself fails to destroy such reproduction it shall be deemed to have infringed.
-
(1) 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.
(2) On January 3, 1980, the Register of Copyrights, after consulting with authors and other owners of copyright in nondramatic literary works and their representatives, and with public broadcasting entities and their representatives, shall submit to the Congress a report setting forth the extent to which voluntary licensing arrangements have been reached with respect to the use of nondramatic literary works by such broadcast stations. The report should also describe any problems that may have arisen, and present legislative or other recommendations, if warranted.
(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 clause (2) of subsection (d).
![[Send Us Mail]](/Images/mailbox.gif)
info@cni.org
