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
For purposes of section 513,
a “proprietor” is an individual, corporation, partnership, or other
entity, as the case may be, that owns an establishment or a food service or
drinking establishment, except that no owner or operator of a radio or television
station licensed by the Federal Communications Commission, cable system or
satellite carrier, cable or satellite carrier service or programmer, provider
of online services or network access or the operator of facilities therefor,
telecommunications company, or any other such audio or audiovisual service
or programmer now known or as may be developed in the future, commercial subscription
music service, or owner or operator of any other transmission service, shall
under any circumstances be deemed to be a proprietor.17
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.
”Registration”, for purposes of sections
205(c)(2), 405, 406, 410(d), 411, 412, and 506(e),
means a registration of a claim in the original or the renewed and extended
term of copyright.18
”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
(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.
(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.
(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
(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.
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.
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.
(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.
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.
(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).
(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.
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.
(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,
