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, network,
and noncommercial educational stations are subject, however, to the following
exceptions and limitations. Where the rules and regulations of the Federal
Communications Commission require a cable system to omit the further transmission
of a particular program and such rules and regulations also permit the substitution
of another program embodying a performance or display of a work in place of
the omitted transmission, or where such rules and regulations in effect on
the date of enactment of this Act permit a cable system, at its election,
to effect such deletion and substitution of a nonlive program or to carry
additional programs not transmitted by primary transmitters within whose local
service area the cable system is located, no value shall be assigned for the
substituted or additional program; where the rules, regulations, or authorizations
of the Federal Communications Commission in effect on the date of enactment
of this Act permit a cable system, at its election, to omit the further transmission
of a particular program and such rules, regulations, or authorizations also
permit the substitution of another program embodying a performance or display
of a work in place of the omitted transmission, the value assigned for the
substituted or additional program shall be, in the case of a live program,
the value of one full distant signal equivalent multiplied by a fraction that
has as its numerator the number of days in the year in which such substitution
occurs and as its denominator the number of days in the year. In the case
of a station carried pursuant to the late-night or specialty programming rules
of the Federal Communications Commission, or a station carried on a part-time
basis where full-time carriage is not possible because the cable system lacks
the activated channel capacity to retransmit on a full-time basis all signals
which it is authorized to carry, the values for independent, network, and
noncommercial educational stations set forth above, as the case may be, shall
be multiplied by a fraction which is equal to the ratio of the broadcast hours
of such station carried by the cable system to the total broadcast hours of
the station.
A “network station” is a television broadcast
station that is owned or operated by, or affiliated with, one or more of the
television networks in the United States providing nationwide transmissions,
and that transmits a substantial part of the programming supplied by such
networks for a substantial part of that station's typical broadcast day.
An “independent station” is a commercial television
broadcast station other than a network station.
A “noncommercial educational station” is a
television station that is a noncommercial educational broadcast station as
defined in section 397 of title 47.
(a)(1) Notwithstanding the provisions of section
106, and except in the case of a motion picture or other audiovisual work,
it is not an infringement of copyright for a transmitting organization entitled
to transmit to the public a performance or display of a work, under a license,
including a statutory license under section 114(f),
or transfer of the copyright or under the limitations on exclusive rights
in sound recordings specified by section 114 (a)
or for a transmitting organization that is a broadcast radio or television
station licensed as such by the Federal Communications Commission and that
makes a broadcast transmission of a performance of a sound recording in a
digital format on a nonsubscription basis, to make no more than one copy or
phonorecord of a particular transmission program embodying the performance
or display, if —
(A) the copy or phonorecord is retained and used solely
by the transmitting organization that made it, and no further copies or phonorecords
are reproduced from it; and
(B) the copy or phonorecord is used solely for the transmitting
organization's own transmissions within its local service area, or for purposes
of archival preservation or security; and
(C) unless preserved exclusively for archival purposes,
the copy or phonorecord is destroyed within six months from the date the transmission
program was first transmitted to the public.
(2) In a case in which a transmitting organization entitled
to make a copy or phonorecord under paragraph (1) in connection with the transmission
to the public of a performance or display of a work is prevented from making
such copy or phonorecord by reason of the application by the copyright owner
of technical measures that prevent the reproduction of the work, the copyright
owner shall make available to the transmitting organization the necessary
means for permitting the making of such copy or phonorecord as permitted under
that paragraph, if it is technologically feasible and economically reasonable
for the copyright owner to do so. If the copyright owner fails to do so in
a timely manner in light of the transmitting organization's reasonable business
requirements, the transmitting organization shall not be liable for a violation
of section 1201(a)(1) of this title for engaging
in such activities as are necessary to make such copies or phonorecords as
permitted under paragraph (1) of this subsection.
(b) Notwithstanding the provisions of section
106, it is not an infringement of copyright for a governmental body or
other nonprofit organization entitled to transmit a performance or display
of a work, under section 110(2) or under the
limitations on exclusive rights in sound recordings specified by section
114(a), to make no more than thirty copies or phonorecords of a particular
transmission program embodying the performance or display, if —
(1) no further copies or phonorecords are reproduced
from the copies or phonorecords made under this clause; and
(2) except for one copy or phonorecord that may be preserved
exclusively for archival purposes, the copies or phonorecords are destroyed
within seven years from the date the transmission program was first transmitted
to the public.
(c) Notwithstanding the provisions of section
106, it is not an infringement of copyright for a governmental body or
other nonprofit organization to make for distribution no more than one copy
or phonorecord, for each transmitting organization specified in clause (2)
of this subsection, of a particular transmission program embodying a performance
of a nondramatic musical work of a religious nature, or of a sound recording
of such a musical work, if —
(1) there is no direct or indirect charge for making
or distributing any such copies or phonorecords; and
(2) none of such copies or phonorecords is used for any
performance other than a single transmission to the public by a transmitting
organization entitled to transmit to the public a performance of the work
under a license or transfer of the copyright; and
(3) except for one copy or phonorecord that may be preserved
exclusively for archival purposes, the copies or phonorecords are all destroyed
within one year from the date the transmission program was first transmitted
to the public.
(d) Notwithstanding the provisions of section
106, it is not an infringement of copyright for a governmental body or
other nonprofit organization entitled to transmit a performance of a work
under section 110(8) to make no more than ten
copies or phonorecords embodying the performance, or to permit the use of
any such copy or phonorecord by any governmental body or nonprofit organization
entitled to transmit a performance of a work under section
110(8), if —
(1) any such copy or phonorecord is retained and used
solely by the organization that made it, or by a governmental body or nonprofit
organization entitled to transmit a performance of a work under section
110(8), and no further copies or phonorecords are reproduced from it;
and
(2) any such copy or phonorecord is used solely for transmissions
authorized under section 110(8), or for purposes
of archival preservation or security; and
(3) the governmental body or nonprofit organization permitting
any use of any such copy or phonorecord by any governmental body or nonprofit
organization under this subsection does not make any charge for such use.
(e) Statutory License. — (1) A transmitting organization
entitled to transmit to the public a performance of a sound recording under
the limitation on exclusive rights specified by section
114(d)(1)(C)(iv) or under a statutory license in accordance with section
114(f) is entitled to a statutory license, under the conditions specified
by this subsection, to make no more than 1 phonorecord of the sound recording
(unless the terms and conditions of the statutory license allow for more),
if the following conditions are satisfied:
(A) The phonorecord is retained and used solely by the
transmitting organization that made it, and no further phonorecords are reproduced
from it.
(B) The phonorecord is used solely for the transmitting
organization's own transmissions originating in the United States under a
statutory license in accordance with section 114(f)
or the limitation on exclusive rights specified by section
114(d)(1)(C)(iv).
(C) Unless preserved exclusively for purposes of archival
preservation, the phonorecord is destroyed within 6 months from the date the
sound recording was first transmitted to the public using the phonorecord.
(D) Phonorecords of the sound recording have been distributed
to the public under the authority of the copyright owner or the copyright
owner authorizes the transmitting entity to transmit the sound recording,
and the transmitting entity makes the phonorecord under this subsection from
a phonorecord lawfully made and acquired under the authority of the copyright
owner.
(2) Notwithstanding any provision of the antitrust laws,
any copyright owners of sound recordings and any transmitting organizations
entitled to a statutory license under this subsection may negotiate and agree
upon royalty rates and license terms and conditions for making phonorecords
of such sound recordings under this section and the proportionate division
of fees paid among copyright owners, and may designate common agents to negotiate,
agree to, pay, or receive such royalty payments.
(3) No later than 30 days after the date of the enactment
of the Digital Millennium Copyright Act, the Librarian of Congress shall cause
notice to be published in the Federal Register of the initiation of voluntary
negotiation proceedings for the purpose of determining reasonable terms and
rates of royalty payments for the activities specified by paragraph (1) of
this subsection during the period beginning on the date of the enactment of
such Act and ending on December 31, 2000, or such other date as the parties
may agree. Such rates shall include a minimum fee for each type of service
offered by transmitting organizations. Any copyright owners of sound recordings
or any transmitting organizations entitled to a statutory license under this
subsection may submit to the Librarian of Congress licenses covering such
activities with respect to such sound recordings. The parties to each negotiation
proceeding shall bear their own costs.
(4) In the absence of license agreements negotiated under
paragraph (2), during the 60-day period commencing 6 months after publication
of the notice specified in paragraph (3), and upon the filing of a petition
in accordance with section 803(a)(1), the Librarian
of Congress shall, pursuant to chapter 8, convene
a copyright arbitration royalty panel to determine and publish in the Federal
Register a schedule of reasonable rates and terms which, subject to paragraph
(5), shall be binding on all copyright owners of sound recordings and transmitting
organizations entitled to a statutory license under this subsection during
the period beginning on the date of the enactment of the Digital Millennium
Copyright Act and ending on December 31, 2000, or such other date as the parties
may agree. Such rates shall include a minimum fee for each type of service
offered by transmitting organizations. The copyright arbitration royalty panel
shall establish rates that most clearly represent the fees that would have
been negotiated in the marketplace between a willing buyer and a willing seller.
In determining such rates and terms, the copyright arbitration royalty panel
shall base its decision on economic, competitive, and programming information
presented by the parties, including —
(A) whether use of the service may substitute for or may
promote the sales of phonorecords or otherwise interferes with or enhances
the copyright owner's traditional streams of revenue; and
(B) the relative roles of the copyright owner and the
transmitting organization in the copyrighted work and the service made available
to the public with respect to relative creative contribution, technological
contribution, capital investment, cost, and risk.
In establishing such rates and terms, the copyright arbitration
royalty panel may consider the rates and terms under voluntary license agreements
negotiated as provided in paragraphs (2) and (3). The Librarian of Congress
shall also establish requirements by which copyright owners may receive reasonable
notice of the use of their sound recordings under this section, and under
which records of such use shall be kept and made available by transmitting
organizations entitled to obtain a statutory license under this subsection.
(5) License agreements voluntarily negotiated at any
time between 1 or more copyright owners of sound recordings and 1 or more
transmitting organizations entitled to obtain a statutory license under this
subsection shall be given effect in lieu of any determination by a copyright
arbitration royalty panel or decision by the Librarian of Congress.
(6) Publication of a notice of the initiation of voluntary
negotiation proceedings as specified in paragraph (3) shall be repeated, in
accordance with regulations that the Librarian of Congress shall prescribe,
in the first week of January 2000, and at 2-year intervals thereafter, except
to the extent that different years for the repeating of such proceedings may
be determined in accordance with paragraph (3). The procedures specified in
paragraph (4) shall be repeated, in accordance with regulations that the Librarian
of Congress shall prescribe, upon filing of a petition in accordance with
section 803(a)(1), during a 60-day period commencing
on July 1, 2000, and at 2-year intervals thereafter, except to the extent
that different years for the repeating of such proceedings may be determined
in accordance with paragraph (3). The procedures specified in paragraph (4)
shall be concluded in accordance with section 802.
(7)(A) Any person who wishes to make a phonorecord of
a sound recording under a statutory license in accordance with this subsection
may do so without infringing the exclusive right of the copyright owner of
the sound recording under section 106(1) —
(i) by complying with such notice requirements as the
Librarian of Congress shall prescribe by regulation and by paying royalty
fees in accordance with this subsection; or
(ii) if such royalty fees have not been set, by agreeing
to pay such royalty fees as shall be determined in accordance with this subsection.
(B) Any royalty payments in arrears shall be made on or
before the 20th day of the month next succeeding the month in which the royalty
fees are set.
(8) If a transmitting organization entitled to make a
phonorecord under this subsection is prevented from making such phonorecord
by reason of the application by the copyright owner of technical measures
that prevent the reproduction of the sound recording, the copyright owner
shall make available to the transmitting organization the necessary means
for permitting the making of such phonorecord as permitted under this subsection,
if it is technologically feasible and economically reasonable for the copyright
owner to do so. If the copyright owner fails to do so in a timely manner in
light of the transmitting organization's reasonable business requirements,
the transmitting organization shall not be liable for a violation of section
1201(a)(1) of this title for engaging in such activities as are necessary
to make such phonorecords as permitted under this subsection.
(9) Nothing in this subsection annuls, limits, impairs,
or otherwise affects in any way the existence or value of any of the exclusive
rights of the copyright owners in a sound recording, except as otherwise provided
in this subsection, or in a musical work, including the exclusive rights to
reproduce and distribute a sound recording or musical work, including by means
of a digital phonorecord delivery, under section
106(1), 106(3), and 115, and the right
to perform publicly a sound recording or musical work, including by means
of a digital audio transmission, under sections
106(4) and 106(6).
(f)(1) Notwithstanding the provisions of section 106,
and without limiting the application of subsection (b), it is not an infringement
of copyright for a governmental body or other nonprofit educational institution
entitled under section 110(2) to transmit a
performance or display to make copies or phonorecords of a work that is in
digital form and, solely to the extent permitted in paragraph (2), of a work
that is in analog form, embodying the performance or display to be used for
making transmissions authorized under section 110(2), if —
(A) such copies or phonorecords are retained and used
solely by the body or institution that made them, and no further copies or
phonorecords are reproduced from them, except as authorized under section
110(2); and
(B) such copies or phonorecords are used solely for transmissions
authorized under section 110(2).
(2) This subsection does not authorize the conversion
of print or other analog versions of works into digital formats, except that
such conversion is permitted hereunder, only with respect to the amount of
such works authorized to be performed or displayed under section 110(2), if —
(A) no digital version of the work is available to the
institution; or
(B) the digital version of the work that is available
to the institution is subject to technological protection measures that prevent
its use for section 110(2).
(g) The transmission program embodied in a copy or phonorecord
made under this section is not subject to protection as a derivative work
under this title except with the express consent of the owners of copyright
in the preexisting works employed in the program.
(a) Subject to the provisions of subsections (b) and (c)
of this section, the exclusive right to reproduce a copyrighted pictorial,
graphic, or sculptural work in copies under section
106, includes the right to reproduce the work in or on any kind of article,
whether useful or otherwise.
(b) This title does not afford, to the owner of copyright
in a work that portrays a useful article as such, any greater or lesser rights
with respect to the making, distribution, or display of the useful article
so portrayed than those afforded to such works under the law, whether title
17 or the common law or statutes of a State, in effect on December 31, 1977,
as held applicable and construed by a court in an action brought under this
title.
(c) In the case of a work lawfully reproduced in useful
articles that have been offered for sale or other distribution to the public,
copyright does not include any right to prevent the making, distribution,
or display of pictures or photographs of such articles in connection with
advertisements or commentaries related to the distribution or display of such
articles, or in connection with news reports.
(d)(1) In a case in which —
(A) a work of visual art has been incorporated in or made
part of a building in such a way that removing the work from the building
will cause the destruction, distortion, mutilation, or other modification
of the work as described in section 106A(a)(3),
and
(B) the author consented to the installation of the work
in the building either before the effective date set forth in section 610(a)
of the Visual Artists Rights Act of 1990, or in a written instrument executed
on or after such effective date that is signed by the owner of the building
and the author and that specifies that installation of the work may subject
the work to destruction, distortion, mutilation, or other modification, by
reason of its removal, then the rights conferred by paragraphs (2) and (3)
of section 106A(a) shall not apply.
(2) If the owner of a building wishes to remove a work
of visual art which is a part of such building and which can be removed from
the building without the destruction, distortion, mutilation, or other modification
of the work as described in section 106A(a)(3),
the author's rights under paragraphs (2) and (3) of section
106A(a) shall apply unless —
(A) the owner has made a diligent, good faith attempt
without success to notify the author of the owner's intended action affecting
the work of visual art, or
(B) the owner did provide such notice in writing and the
person so notified failed, within 90 days after receiving such notice, either
to remove the work or to pay for its removal.
For purposes of subparagraph (A), an owner shall be presumed
to have made a diligent, good faith attempt to send notice if the owner sent
such notice by registered mail to the author at the most recent address of
the author that was recorded with the Register of Copyrights pursuant to paragraph
(3). If the work is removed at the expense of the author, title to that copy
of the work shall be deemed to be in the author.
(3) The Register of Copyrights shall establish a system
of records whereby any author of a work of visual art that has been incorporated
in or made part of a building, may record his or her identity and address
with the Copyright Office. The Register shall also establish procedures under
which any such author may update the information so recorded, and procedures
under which owners of buildings may record with the Copyright Office evidence
of their efforts to comply with this subsection.
(a) The exclusive rights of the owner of copyright in
a sound recording are limited to the rights specified by clauses (1), (2),
(3) and (6) of section 106, and do not include
any right of performance under section 106(4).
(b) The exclusive right of the owner of copyright in a
sound recording under clause (1) of section 106
is limited to the right to duplicate the sound recording in the form of phonorecords
or copies that directly or indirectly recapture the actual sounds fixed in
the recording. The exclusive right of the owner of copyright in a sound recording
under clause (2) of section 106 is limited
to the right to prepare a derivative work in which the actual sounds fixed
in the sound recording are rearranged, remixed, or otherwise altered in sequence
or quality. The exclusive rights of the owner of copyright in a sound recording
under clauses (1) and (2) of section 106 do
not extend to the making or duplication of another sound recording that consists
entirely of an independent fixation of other sounds, even though such sounds
imitate or simulate those in the copyrighted sound recording. The exclusive
rights of the owner of copyright in a sound recording under clauses (1), (2),
and (3) of section 106 do not apply to sound
recordings included in educational television and radio programs (as defined
in section 397 of title 47) distributed or transmitted by or through public
broadcasting entities (as defined by section 118(g)):
Provided, That copies or phonorecords of said programs are not commercially
distributed by or through public broadcasting entities to the general public.
(c) This section does not limit or impair the exclusive
right to perform publicly, by means of a phonorecord, any of the works specified
by section 106(4).
(d) Limitations on Exclusive
Right. — Notwithstanding the provisions of section
106(6) —
(1) Exempt transmissions and
retransmissions. — The performance of a sound recording
publicly by means of a digital audio transmission, other than as a part of
an interactive service, is not an infringement of section
106(6) if the performance is part of —
(A) a nonsubscription broadcast transmission;
(B) a retransmission of a nonsubscription broadcast transmission:
Provided, That, in the case of a retransmission of a radio station's
broadcast transmission —
(i) the radio station's broadcast transmission is not
willfully or repeatedly retransmitted more than a radius of 150 miles from
the site of the radio broadcast transmitter, however —
(I) the 150 mile limitation under this clause shall not
apply when a nonsubscription broadcast transmission by a radio station licensed
by the Federal Communications Commission is retransmitted on a non-subscription
basis by a terrestrial broadcast station, terrestrial translator, or terrestrial
repeater licensed by the Federal Communications Commission; and
(II) in the case of a subscription retransmission of a
non-subscription broadcast retransmission covered by subclause (I), the 150
mile radius shall be measured from the transmitter site of such broadcast
retransmitter;
(ii) the retransmission is of radio station broadcast
transmissions that are —
(I) obtained by the retransmitter over the air;
(II) not electronically processed by the retransmitter
to deliver separate and discrete signals; and
(III) retransmitted only within the local communities
served by the retransmitter;
(iii) the radio station's broadcast transmission was
being retransmitted to cable systems (as defined in section
111(f)) by a satellite carrier on January 1, 1995, and that retransmission
was being retransmitted by cable systems as a separate and discrete signal,
and the satellite carrier obtains the radio station's broadcast transmission
in an analog format: Provided, That the broadcast transmission being
retransmitted may embody the programming of no more than one radio station;
or
(iv) the radio station's broadcast transmission is made
by a noncommercial educational broadcast station funded on or after January
1, 1995, under section 396(k) of the Communications Act of 1934 (47 U.S.C.
396(k)), consists solely of noncommercial educational and cultural radio programs,
and the retransmission, whether or not simultaneous, is a nonsubscription
terrestrial broadcast retransmission; or
(C) a transmission that comes within any of the following
categories —
(i) a prior or simultaneous transmission incidental to
an exempt transmission, such as a feed received by and then retransmitted
by an exempt transmitter: Provided, That such incidental transmissions
do not include any subscription transmission directly for reception by members
of the public;
(ii) a transmission within a business establishment,
confined to its premises or the immediately surrounding vicinity;
(iii) a retransmission by any retransmitter, including
a multichannel video programming distributor as defined in section 602(12)
of the Communications Act of 1934 (47 U.S.C. 522 (12)), of a transmission
by a transmitter licensed to publicly perform the sound recording as a part
of that transmission, if the retransmission is simultaneous with the licensed
transmission and authorized by the transmitter; or
(iv) a transmission to a business establishment for use
in the ordinary course of its business: Provided, That the business
recipient does not retransmit the transmission outside of its premises or
the immediately surrounding vicinity, and that the transmission does not exceed
the sound recording performance complement. Nothing in this clause shall limit
the scope of the exemption in clause (ii).
(2) Statutory licensing of certain
transmissions. —
The performance of a sound recording publicly by means
of a subscription digital audio transmission not exempt under paragraph (1),
an eligible nonsubscription transmission, or a transmission not exempt under
paragraph (1) that is made by a preexisting satellite digital audio radio
service shall be subject to statutory licensing, in accordance with subsection
(f) if —
(A)(i) the transmission is not part of an interactive
service;
(ii) except in the case of a transmission to a business
establishment, the transmitting entity does not automatically and intentionally
cause any device receiving the transmission to switch from one program channel
to another; and
(iii) except as provided in section
1002(e), the transmission of the sound recording is accompanied, if technically
feasible, by the information encoded in that sound recording, if any, by or
under the authority of the copyright owner of that sound recording, that identifies
the title of the sound recording, the featured recording artist who performs
on the sound recording, and related information, including information concerning
the underlying musical work and its writer;
(B) in the case of a subscription transmission not exempt
under paragraph (1) that is made by a preexisting subscription service in
the same transmission medium used by such service on July 31, 1998, or in
the case of a transmission not exempt under paragraph (1) that is made by
a preexisting satellite digital audio radio service —
(i) the transmission does not exceed the sound recording
performance complement; and
(ii) the transmitting entity does not cause to be published
by means of an advance program schedule or prior announcement the titles of
the specific sound recordings or phonorecords embodying such sound recordings
to be transmitted; and
(C) in the case of an eligible nonsubscription transmission
or a subscription transmission not exempt under paragraph (1) that is made
by a new subscription service or by a preexisting subscription service other
than in the same transmission medium used by such service on July 31, 1998 —
(i) the transmission does not exceed the sound recording
performance complement, except that this requirement shall not apply in the
case of a retransmission of a broadcast transmission if the retransmission
is made by a transmitting entity that does not have the right or ability to
control the programming of the broadcast station making the broadcast transmission,
unless —
(I) the broadcast station makes broadcast transmissions —
(aa) in digital format that regularly exceed the sound
recording performance complement; or
(bb) in analog format, a substantial portion of which,
on a weekly basis, exceed the sound recording performance complement; and
(II) the sound recording copyright owner or its representative
has notified the transmitting entity in writing that broadcast transmissions
of the copyright owner's sound recordings exceed the sound recording performance
complement as provided in this clause;
(ii) the transmitting entity does not cause to be published,
or induce or facilitate the publication, by means of an advance program schedule
or prior announcement, the titles of the specific sound recordings to be transmitted,
the phonorecords embodying such sound recordings, or, other than for illustrative
purposes, the names of the featured recording artists, except that this clause
does not disqualify a transmitting entity that makes a prior announcement
that a particular artist will be featured within an unspecified future time
period, and in the case of a retransmission of a broadcast transmission by
a transmitting entity that does not have the right or ability to control the
programming of the broadcast transmission, the requirement of this clause
shall not apply to a prior oral announcement by the broadcast station, or
to an advance program schedule published, induced, or facilitated by the broadcast
station, if the transmitting entity does not have actual knowledge and has
not received written notice from the copyright owner or its representative
that the broadcast station publishes or induces or facilitates the publication
of such advance program schedule, or if such advance program schedule is a
schedule of classical music programming published by the broadcast station
in the same manner as published by that broadcast station on or before September
30, 1998;
(iii) the transmission —
(I) is not part of an archived program of less than 5
hours duration;
(II) is not part of an archived program of 5 hours or
greater in duration that is made available for a period exceeding 2 weeks;
(III) is not part of a continuous program which is of
less than 3 hours duration; or
(IV) is not part of an identifiable program in which performances
of sound recordings are rendered in a predetermined order, other than an archived
or continuous program, that is transmitted at —
(aa) more than 3 times in any 2-week period that have
been publicly announced in advance, in the case of a program of less than
1 hour in duration, or
(bb) more than 4 times in any 2-week period that have
been publicly announced in advance, in the case of a program of 1 hour or
more in duration, except that the requirement of this subclause shall not
apply in the case of a retransmission of a broadcast transmission by a transmitting
entity that does not have the right or ability to control the programming
of the broadcast transmission, unless the transmitting entity is given notice
in writing by the copyright owner of the sound recording that the broadcast
station makes broadcast transmissions that regularly violate such requirement;
(iv) the transmitting entity does not knowingly perform
the sound recording, as part of a service that offers transmissions of visual
images contemporaneously with transmissions of sound recordings, in a manner
that is likely to cause confusion, to cause mistake, or to deceive, as to
the affiliation, connection, or association of the copyright owner or featured
recording artist with the transmitting entity or a particular product or service
advertised by the transmitting entity, or as to the origin, sponsorship, or
approval by the copyright owner or featured recording artist of the activities
of the transmitting entity other than the performance of the sound recording
itself;
(v) the transmitting entity cooperates to prevent, to
the extent feasible without imposing substantial costs or burdens, a transmission
recipient or any other person or entity from automatically scanning the transmitting
entity's transmissions alone or together with transmissions by other transmitting
entities in order to select a particular sound recording to be transmitted
to the transmission recipient, except that the requirement of this clause
shall not apply to a satellite digital audio service that is in operation,
or that is licensed by the Federal Communications Commission, on or before
July 31, 1998;
(vi) the transmitting entity takes no affirmative steps
to cause or induce the making of a phonorecord by the transmission recipient,
and if the technology used by the transmitting entity enables the transmitting
entity to limit the making by the transmission recipient of phonorecords of
the transmission directly in a digital format, the transmitting entity sets
such technology to limit such making of phonorecords to the extent permitted
by such technology;
(vii) phonorecords of the sound recording have been distributed
to the public under the authority of the copyright owner or the copyright
owner authorizes the transmitting entity to transmit the sound recording,
and the transmitting entity makes the transmission from a phonorecord lawfully
made under the authority of the copyright owner, except that the requirement
of this clause shall not apply to a retransmission of a broadcast transmission
by a transmitting entity that does not have the right or ability to control
the programming of the broadcast transmission, unless the transmitting entity
is given notice in writing by the copyright owner of the sound recording that
the broadcast station makes broadcast transmissions that regularly violate
such requirement;
(viii) the transmitting entity accommodates and does
not interfere with the transmission of technical measures that are widely
used by sound recording copyright owners to identify or protect copyrighted
works, and that are technically feasible of being transmitted by the transmitting
entity without imposing substantial costs on the transmitting entity or resulting
in perceptible aural or visual degradation of the digital signal, except that
the requirement of this clause shall not apply to a satellite digital audio
service that is in operation, or that is licensed under the authority of the
Federal Communications Commission, on or before July 31, 1998, to the extent
that such service has designed, developed, or made commitments to procure
equipment or technology that is not compatible with such technical measures
before such technical measures are widely adopted by sound recording copyright
owners; and
(ix) the transmitting entity identifies in textual data
the sound recording during, but not before, the time it is performed, including
the title of the sound recording, the title of the phonorecord embodying such
sound recording, if any, and the featured recording artist, in a manner to
permit it to be displayed to the transmission recipient by the device or technology
intended for receiving the service provided by the transmitting entity, except
that the obligation in this clause shall not take effect until 1 year after
the date of the enactment of the Digital Millennium Copyright Act and shall
not apply in the case of a retransmission of a broadcast transmission by a
transmitting entity that does not have the right or ability to control the
programming of the broadcast transmission, or in the case in which devices
or technology intended for receiving the service provided by the transmitting
entity that have the capability to display such textual data are not common
in the marketplace.
(3) Licenses for transmissions
by interactive services. —
(A) No interactive service shall be granted an exclusive
license under section 106(6) for the performance
of a sound recording publicly by means of digital audio transmission for a
period in excess of 12 months, except that with respect to an exclusive license
granted to an interactive service by a licensor that holds the copyright to
1,000 or fewer sound recordings, the period of such license shall not exceed
24 months: Provided, however, That the grantee of such exclusive license
shall be ineligible to receive another exclusive license for the performance
of that sound recording for a period of 13 months from the expiration of the
prior exclusive license.
(B) The limitation set forth in subparagraph (A) of this
paragraph shall not apply if —
(i) the licensor has granted and there remain in effect
licenses under section 106(6) for the public
performance of sound recordings by means of digital audio transmission by
at least 5 different interactive services; Provided, however, That
each such license must be for a minimum of 10 percent of the copyrighted sound
recordings owned by the licensor that have been licensed to interactive services,
but in no event less than 50 sound recordings; or
(ii) the exclusive license is granted to perform publicly
up to 45 seconds of a sound recording and the sole purpose of the performance
is to promote the distribution or performance of that sound recording.
(C) Notwithstanding the grant of an exclusive or nonexclusive
license of the right of public performance under section
106(6), an interactive service may not publicly perform a sound recording
unless a license has been granted for the public performance of any copyrighted
musical work contained in the sound recording: Provided, That such
license to publicly perform the copyrighted musical work may be granted either
by a performing rights society representing the copyright owner or by the
copyright owner.
(D) The performance of a sound recording by means of a
retransmission of a digital audio transmission is not an infringement of section
106(6) if —
(i) the retransmission is of a transmission by an interactive
service licensed to publicly perform the sound recording to a particular member
of the public as part of that transmission; and
(ii) the retransmission is simultaneous with the licensed
transmission, authorized by the transmitter, and limited to that particular
member of the public intended by the interactive service to be the recipient
of the transmission.
(E) For the purposes of this paragraph —
(i) a “licensor” shall include the licensing
entity and any other entity under any material degree of common ownership,
management, or control that owns copyrights in sound recordings; and
(ii) a “performing rights society” is an association
or corporation that licenses the public performance of nondramatic musical
works on behalf of the copyright owner, such as the American Society of Composers,
Authors and Publishers, Broadcast Music, Inc., and SESAC, Inc.
(4) Rights not otherwise limited. —
(A) Except as expressly provided in this section, this
section does not limit or impair the exclusive right to perform a sound recording
publicly by means of a digital audio transmission under section
106(6).
(B) Nothing in this section annuls or limits in any way —
(i) the exclusive right to publicly perform a musical
work, including by means of a digital audio transmission, under section
106(4);
(ii) the exclusive rights in a sound recording or the
musical work embodied therein under sections 106(1),
106(2) and 106(3); or
(iii) any other rights under any other clause of section
106, or remedies available under this title as such rights or remedies
exist either before or after the date of enactment of the Digital Performance
Right in Sound Recordings Act of 1995.
(C) Any limitations in this section on the exclusive right
under section 106(6) apply only to the exclusive
right under ection 106(6) and not to any other
exclusive rights under section 106. Nothing
in this section shall be construed to annul, limit, impair or otherwise affect
in any way the ability of the owner of a copyright in a sound recording to
exercise the rights under sections 106(1), 106(2)
and 106(3), or to obtain the remedies available
under this title pursuant to such rights, as such rights and remedies exist
either before or after the date of enactment of the Digital Performance Right
in Sound Recordings Act of 1995.
(e) Authority for Negotiations. —
(1) Notwithstanding any provision of the antitrust laws,
in negotiating statutory licenses in accordance with subsection (f), any copyright
owners of sound recordings and any entities performing sound recordings affected
by this section may negotiate and agree upon the royalty rates and license
terms and conditions for the performance of such sound recordings and the
proportionate division of fees paid among copyright owners, and may designate
common agents on a nonexclusive basis to negotiate, agree to, pay, or receive
payments.
(2) For licenses granted under section
106(6), other than statutory licenses, such as for performances by interactive
services or performances that exceed the sound recording performance complement —
(A) copyright owners of sound recordings affected by this
section may designate common agents to act on their behalf to grant licenses
and receive and remit royalty payments: Provided, That each copyright
owner shall establish the royalty rates and material license terms and conditions
unilaterally, that is, not in agreement, combination, or concert with other
copyright owners of sound recordings; and
(B) entities performing sound recordings affected by this
section may designate common agents to act on their behalf to obtain licenses
and collect and pay royalty fees: Provided, That each entity performing
sound recordings shall determine the royalty rates and material license terms
and conditions unilaterally, that is, not in agreement, combination, or concert
with other entities performing sound recordings.
(f) Licenses for Certain Nonexempt
Transmissions.47
(1)(A) 48 No later than
30 days after the enactment of the Digital Performance Right in Sound Recordings
Act of 1995, the Librarian of Congress shall cause notice to be published
in the Federal Register of the initiation of voluntary negotiation proceedings
for the purpose of determining reasonable terms and rates of royalty payments
for subscription transmissions by preexisting subscription services and transmissions
by preexisting satellite digital audio radio services specified by subsection
(d)(2) of this section during the period beginning on the effective date of
such Act and ending on December 31, 2001, or, if a copyright arbitration royalty
panel is convened, ending 30 days after the Librarian issues and publishes
in the Federal Register an order adopting the determination of the copyright
arbitration royalty panel or an order setting the terms and rates (if the
Librarian rejects the panel's determination). Such terms and rates shall distinguish
among the different types of digital audio transmission services then in operation.
Any copyright owners of sound recordings, preexisting subscription services,
or preexisting satellite digital audio radio services may submit to the Librarian
of Congress licenses covering such subscription transmissions with respect
to such sound recordings. The parties to each negotiation proceeding shall
bear their own costs.
(B) In the absence of license agreements negotiated under
subparagraph (A), during the 60-day period commencing 6 months after publication
of the notice specified in subparagraph (A), and upon the filing of a petition
in accordance with section 803(a)(1), the Librarian
of Congress shall, pursuant to chapter 8, convene
a copyright arbitration royalty panel to determine and publish in the Federal
Register a schedule of rates and terms which, subject to paragraph (3), shall
be binding on all copyright owners of sound recordings and entities performing
sound recordings affected by this paragraph. In establishing rates and terms
for preexisting subscription services and preexisting satellite digital audio
radio services, in addition to the objectives set forth in section
801(b)(1), the copyright arbitration royalty panel may consider the rates
and terms for comparable types of subscription digital audio transmission
services and comparable circumstances under voluntary license agreements negotiated
as provided in subparagraph (A).
(C)(i) Publication of a notice of the initiation of voluntary
negotiation proceedings as specified in subparagraph (A) shall be repeated,
in accordance with regulations that the Librarian of Congress shall prescribe —
(I) no later than 30 days after a petition is filed by
any copyright owners of sound recordings, any preexisting subscription services,
or any preexisting satellite digital audio radio services indicating that
a new type of subscription digital audio transmission service on which sound
recordings are performed is or is about to become operational; and
(II) in the first week of January 2001, and at 5-year
intervals thereafter.
(ii) The procedures specified in subparagraph (B) shall
be repeated, in accordance with regulations that the Librarian of Congress
shall prescribe, upon filing of a petition in accordance with section
803(a)(1) during a 60-day period commencing —
(I) 6 months after publication of a notice of the initiation
of voluntary negotiation proceedings under subparagraph (A) pursuant to a
petition under clause (i)(I) of this subparagraph; or
(II) on July 1, 2001, and at 5-year intervals thereafter.
(iii) The procedures specified in subparagraph (B) shall
be concluded in accordance with section 802.
(2)(A) No later than 30 days after the date of the enactment
of the Digital Millennium Copyright Act, the Librarian of Congress shall cause
notice to be published in the Federal Register of the initiation of voluntary
negotiation proceedings for the purpose of determining reasonable terms and
rates of royalty payments for public performances of sound recordings by means
of eligible nonsubscription transmissions and transmissions by new subscription
services specified by subsection (d)(2) during the period beginning on the
date of the enactment of such Act and ending on December 31, 2000, or such
other date as the parties may agree. Such rates and terms shall distinguish
among the different types of eligible nonsubscription transmission services
and new subscription services then in operation and shall include a minimum
fee for each such type of service. Any copyright owners of sound recordings
or any entities performing sound recordings affected by this paragraph may
submit to the Librarian of Congress licenses covering such eligible nonsubscription
transmissions and new subscription services with respect to such sound recordings.
The parties to each negotiation proceeding shall bear their own costs.
(B) In the absence of license agreements negotiated under
subparagraph (A), during the 60-day period commencing 6 months after publication
of the notice specified in subparagraph (A), and upon the filing of a petition
in accordance with section 803(a)(1), the Librarian
of Congress shall, pursuant to chapter 8, convene
a copyright arbitration royalty panel to determine and publish in the Federal
Register a schedule of rates and terms which, subject to paragraph (3), shall
be binding on all copyright owners of sound recordings and entities performing
sound recordings affected by this paragraph during the period beginning on
the date of the enactment of the Digital Millennium Copyright Act and ending
on December 31, 2000, or such other date as the parties may agree. Such rates
and terms shall distinguish among the different types of eligible nonsubscription
transmission services then in operation and shall include a minimum fee for
each such type of service, such differences to be based on criteria including,
but not limited to, the quantity and nature of the use of sound recordings
and the degree to which use of the service may substitute for or may promote
the purchase of phonorecords by consumers. In establishing rates and terms
for transmissions by eligible nonsubscription services and new subscription
services, the copyright arbitration royalty panel shall establish rates and
terms that most clearly represent the rates and terms that would have been
negotiated in the marketplace between a willing buyer and a willing seller.
In determining such rates and terms, the copyright arbitration royalty panel
shall base its decision on economic, competitive and programming information
presented by the parties, including —
(i) whether use of the service may substitute for or
may promote the sales of phonorecords or otherwise may interfere with or may
enhance the sound recording copyright owner's other streams of revenue from
its sound recordings; and
(ii) the relative roles of the copyright owner and the
transmitting entity in the copyrighted work and the service made available
to the public with respect to relative creative contribution, technological
contribution, capital investment, cost, and risk.
In establishing such rates and terms, the copyright arbitration
royalty panel may consider the rates and terms for comparable types of digital
audio transmission services and comparable circumstances under voluntary license
agreements negotiated under subparagraph (A).
(C)(i) Publication of a notice of the initiation of voluntary
negotiation proceedings as specified in subparagraph (A) shall be repeated
in accordance with regulations that the Librarian of Congress shall prescribe —
(I) no later than 30 days after a petition is filed by
any copyright owners of sound recordings or any eligible nonsubscription service
or new subscription service indicating that a new type of eligible nonsubscription
service or new subscription service on which sound recordings are performed
is or is about to become operational; and
(II) in the first week of January 2000, and at 2-year
intervals thereafter, except to the extent that different years for the repeating
of such proceedings may be determined in accordance with subparagraph (A).
(ii) The procedures specified in subparagraph (B) shall
be repeated, in accordance with regulations that the Librarian of Congress
shall prescribe, upon filing of a petition in accordance with section
803(a)(1) during a 60-day period commencing —
(I) 6 months after publication of a notice of the initiation
of voluntary negotiation proceedings under subparagraph (A) pursuant to a
petition under clause (i)(I); or
(II) on July 1, 2000, and at 2-year intervals thereafter,
except to the extent that different years for the repeating of such proceedings
may be determined in accordance with subparagraph (A).
(iii) The procedures specified in subparagraph (B) shall
be concluded in accordance with section 802.
(3) License agreements voluntarily negotiated at any
time between 1 or more copyright owners of sound recordings and 1 or more
entities performing sound recordings shall be given effect in lieu of any
determination by a copyright arbitration royalty panel or decision by the
Librarian of Congress.
(4)(A) The Librarian of Congress shall also establish
requirements by which copyright owners may receive reasonable notice of the
use of their sound recordings under this section, and under which records
of such use shall be kept and made available by entities performing sound
recordings.
(B) Any person who wishes to perform a sound recording
publicly by means of a transmission eligible for statutory licensing under
this subsection may do so without infringing the exclusive right of the copyright
owner of the sound recording —
(i) by complying with such notice requirements as the
Librarian of Congress shall prescribe by regulation and by paying royalty
fees in accordance with this subsection; or
(ii) if such royalty fees have not been set, by agreeing
to pay such royalty fees as shall be determined in accordance with this subsection.
(C) Any royalty payments in arrears shall be made on or
before the twentieth day of the month next succeeding the month in which the
royalty fees are set.
(5)(A) Notwithstanding section 112(e) and the other provisions
of this subsection, the receiving agent may enter into agreements for the
reproduction and performance of sound recordings under section 112(e) and
this section by any 1 or more small commercial webcasters or noncommercial
webcasters during the period beginning on October 28, 1998, and ending on
December 31, 2004, that, once published in the Federal Register pursuant to
subparagraph (B), shall be binding on all copyright owners of sound recordings
and other persons entitled to payment under this section, in lieu of any determination
by a copyright arbitration royalty panel or decision by the Librarian of Congress.
Any such agreement for small commercial webcasters shall include provisions
for payment of royalties on the basis of a percentage of revenue or expenses,
or both, and include a minimum fee. Any such agreement may include other terms
and conditions, including requirements by which copyright owners may receive
notice of the use of their sound recordings and under which records of such
use shall be kept and made available by small commercial webcasters or noncommercial
webcasters. The receiving agent shall be under no obligation to negotiate
any such agreement. The receiving agent shall have no obligation to any copyright
owner of sound recordings or any other person entitled to payment under this
section in negotiating any such agreement, and no liability to any copyright
owner of sound recordings or any other person entitled to payment under this
section for having entered into such agreement.
(B) The Copyright Office shall cause to be published
in the Federal Register any agreement entered into pursuant to subparagraph
(A). Such publication shall include a statement containing the substance of
subparagraph (C). Such agreements shall not be included in the Code of Federal
Regulations. Thereafter, the terms of such agreement shall be available, as
an option, to any small commercial webcaster or noncommercial webcaster meeting
the eligibility conditions of such agreement.
(C) Neither subparagraph (A) nor any provisions of any
agreement entered into pursuant to subparagraph (A), including any rate structure,
fees, terms, conditions, or notice and recordkeeping requirements set forth
therein, shall be admissible as evidence or otherwise taken into account in
any administrative, judicial, or other government proceeding involving the
setting or adjustment of the royalties payable for the public performance
or reproduction in ephemeral phonorecords or copies of sound recordings, the
determination of terms or conditions related thereto, or the establishment
of notice or recordkeeping requirements by the Librarian of Congress under
paragraph (4) or section 112(e)(4). It is the intent of Congress that any
royalty rates, rate structure, definitions, terms, conditions, or notice and
recordkeeping requirements, included in such agreements shall be considered
as a compromise motivated by the unique business, economic and political circumstances
of small webcasters, copyright owners, and performers rather than as matters
that would have been negotiated in the marketplace between a willing buyer
and a willing seller, or otherwise meet the objectives set forth in section
801(b).
(D) Nothing in the Small Webcaster Settlement Act of
2002 or any agreement entered into pursuant to subparagraph (A) shall be taken
into account by the United States Court of Appeals for the District of Columbia
Circuit in its review of the determination by the Librarian of Congress of
July 8, 2002, of rates and terms for the digital performance of sound recordings
and ephemeral recordings, pursuant to sections 112 and 114.
(E) As used in this paragraph —
(i) the term “noncommercial webcaster” means
a webcaster that —
(I) is exempt from taxation under section 501 of the
Internal Revenue Code of 1986 (26 U.S.C. 501);
(II) has applied in good faith to the Internal Revenue
Service for exemption from taxation under section 501 of the Internal Revenue
Code and has a commercially reasonable expectation that such exemption shall
be granted; or
(III) is operated by a State or possession or any governmental
entity or subordinate thereof, or by the United States or District of Columbia,
for exclusively public purposes;
(ii) the term “receiving agent” shall have
the meaning given that term in section 261.2 of title 37, Code of Federal
Regulations, as published in the Federal Register on July 8, 2002; and
(iii) the term “webcaster” means a person
or entity that has obtained a compulsory license under section 112 or 114
and the implementing regulations therefor to make eligible nonsubscription
transmissions and ephemeral recordings.
(F) The authority to make settlements pursuant to subparagraph
(A) shall expire December 15, 2002, except with respect to noncommercial webcasters
for whom the authority shall expire May 31, 2003.
(g) Proceeds from Licensing of
Transmissions. —
(1) Except in the case of a transmission licensed under
a statutory license in accordance with subsection (f) of this section —
(A) a featured recording artist who performs on a sound
recording that has been licensed for a transmission shall be entitled to receive
payments from the copyright owner of the sound recording in accordance with
the terms of the artist's contract; and
(B) a nonfeatured recording artist who performs on a sound
recording that has been licensed for a transmission shall be entitled to receive
payments from the copyright owner of the sound recording in accordance with
the terms of the nonfeatured recording artist's applicable contract or other
applicable agreement.
(2) An agent designated to distribute receipts from the
licensing of transmissions in accordance with subsection (f) shall distribute
such receipts as follows:
(A) 50 percent of the receipts shall be paid to the copyright
owner of the exclusive right under section 106(6) of this title to publicly
perform a sound recording by means of a digital audio transmission.
(B) 2 ½ percent of the receipts shall be deposited
in an escrow account managed by an independent administrator jointly appointed
by copyright owners of sound recordings and the American Federation of Musicians
(or any successor entity) to be distributed to nonfeatured musicians (whether
or not members of the American Federation of Musicians) who have performed
on sound recordings.
(C) 2 ½ percent of the receipts shall be deposited
in an escrow account managed by an independent administrator jointly appointed
by copyright owners of sound recordings and the American Federation of Television
and Radio Artists (or any successor entity) to be distributed to nonfeatured
vocalists (whether or not members of the American Federation of Television
and Radio Artists) who have performed on sound recordings.
(D) 45 percent of the receipts shall be paid, on a per
sound recording basis, to the recording artist or artists featured on such
sound recording (or the persons conveying rights in the artists' performance
in the sound recordings).
(3) A nonprofit agent designated to distribute receipts
from the licensing of transmissions in accordance with subsection (f) may
deduct from any of its receipts, prior to the distribution of such receipts
to any person or entity entitled thereto other than copyright owners and performers
who have elected to receive royalties from another designated agent and have
notified such nonprofit agent in writing of such election, the reasonable
costs of such agent incurred after November 1, 1995, in —
(A) the administration of the collection, distribution,
and calculation of the royalties;
(B) the settlement of disputes relating to the collection
and calculation of the royalties; and
(C) the licensing and enforcement of rights with respect
to the making of ephemeral recordings and performances subject to licensing
under section 112 and this section, including those incurred in participating
in negotiations or arbitration proceedings under section 112 and this section,
except that all costs incurred relating to the section 112 ephemeral recordings
right may only be deducted from the royalties received pursuant to section
112.
(4) Notwithstanding paragraph (3), any designated agent
designated to distribute receipts from the licensing of transmissions in accordance
with subsection (f) may deduct from any of its receipts, prior to the distribution
of such receipts, the reasonable costs identified in paragraph (3) of such
agent incurred after November 1, 1995, with respect to such copyright owners
and performers who have entered with such agent a contractual relationship
that specifies that such costs may be deducted from such royalty receipts.
(h) Licensing to Affiliates. —
(1) If the copyright owner of a sound recording licenses
an affiliated entity the right to publicly perform a sound recording by means
of a digital audio transmission under section 106(6),
the copyright owner shall make the licensed sound recording available under
section 106(6) on no less favorable terms and
conditions to all bona fide entities that offer similar services, except that,
if there are material differences in the scope of the requested license with
respect to the type of service, the particular sound recordings licensed,
the frequency of use, the number of subscribers served, or the duration, then
the copyright owner may establish different terms and conditions for such
other services.
(2) The limitation set forth in paragraph (1) of this
subsection shall not apply in the case where the copyright owner of a sound
recording licenses —
(A) an interactive service; or
(B) an entity to perform publicly up to 45 seconds of
the sound recording and the sole purpose of the performance is to promote
the distribution or performance of that sound recording.
(i) No Effect on Royalties for
Underlying Works. — License fees payable for the public
performance of sound recordings under section 106(6)
shall not be taken into account in any administrative, judicial, or other
governmental proceeding to set or adjust the royalties payable to copyright
owners of musical works for the public performance of their works. It is the
intent of Congress that royalties payable to copyright owners of musical works
for the public performance of their works shall not be diminished in any respect
as a result of the rights granted by section 106(6).
(j) Definitions. — As
used in this section, the following terms have the following meanings:
(l) An “affiliated entity” is an entity engaging
in digital audio transmissions covered by section
106(6), other than an interactive service, in which the licensor has any
direct or indirect partnership or any ownership interest amounting to 5 percent
or more of the outstanding voting or non-voting stock.
(2) An “archived program” is a predetermined
program that is available repeatedly on the demand of the transmission recipient
and that is performed in the same order from the beginning, except that an
archived program shall not include a recorded event or broadcast transmission
that makes no more than an incidental use of sound recordings, as long as
such recorded event or broadcast transmission does not contain an entire sound
recording or feature a particular sound recording.
(3) A “broadcast” transmission is a transmission
made by a terrestrial broadcast station licensed as such by the Federal Communications
Commission.
(4) A “continuous program” is a predetermined
program that is continuously performed in the same order and that is accessed
at a point in the program that is beyond the control of the transmission recipient.
(5) A “digital audio transmission” is a digital
transmission as defined in section 101, that
embodies the transmission of a sound recording. This term does not include
the transmission of any audiovisual work.
(6) An “eligible nonsubscription transmission”
is a noninteractive nonsubscription digital audio transmission not exempt
under subsection (d)(1) that is made as part of a service that provides audio
programming consisting, in whole or in part, of performances of sound recordings,
including retransmissions of broadcast transmissions, if the primary purpose
of the service is to provide to the public such audio or other entertainment
programming, and the primary purpose of the service is not to sell, advertise,
or promote particular products or services other than sound recordings, live
concerts, or other music-related events.
(7) An “interactive service” is one that enables
a member of the public to receive a transmission of a program specially created
for the recipient, or on request, a transmission of a particular sound recording,
whether or not as part of a program, which is selected by or on behalf of
the recipient. The ability of individuals to request that particular sound
recordings be performed for reception by the public at large, or in the case
of a subscription service, by all subscribers of the service, does not make
a service interactive, if the programming on each channel of the service does
not substantially consist of sound recordings that are performed within 1
hour of the request or at a time designated by either the transmitting entity
or the individual making such request. If an entity offers both interactive
and noninteractive services (either concurrently or at different times), the
noninteractive component shall not be treated as part of an interactive service.
(8) A “new subscription service” is a service
that performs sound recordings by means of noninteractive subscription digital
audio transmissions and that is not a preexisting subscription service or
a preexisting satellite digital audio radio service.
(9) A “nonsubscription” transmission is any
transmission that is not a subscription transmission.
(10) A “preexisting satellite digital audio radio
service” is a subscription satellite digital audio radio service provided
pursuant to a satellite digital audio radio service license issued by the
Federal Communications Commission on or before July 31, 1998, and any renewal
of such license to the extent of the scope of the original license, and may
include a limited number of sample channels representative of the subscription
service that are made available on a nonsubscription basis in order to promote
the subscription service.
(11) A “preexisting subscription service” is
a service that performs sound recordings by means of noninteractive audio-only
subscription digital audio transmissions, which was in existence and was making
such transmissions to the public for a fee on or before July 31, 1998, and
may include a limited number of sample channels representative of the subscription
service that are made available on a nonsubscription basis in order to promote
the subscription service.
(12) A “retransmission” is a further transmission
of an initial transmission, and includes any further retransmission of the
same transmission. Except as provided in this section, a transmission qualifies
as a “retransmission” only if it is simultaneous with the initial
transmission. Nothing in this definition shall be construed to exempt a transmission
that fails to satisfy a separate element required to qualify for an exemption
under section 114(d)(1).
(13) The “sound recording performance complement”
is the transmission during any 3-hour period, on a particular channel used
by a transmitting entity, of no more than —
(A) 3 different selections of sound recordings from any
one phonorecord lawfully distributed for public performance or sale in the
United States, if no more than 2 such selections are transmitted consecutively;
or
(B) 4 different selections of sound recordings —
(i) by the same featured recording artist; or
(ii) from any set or compilation of phonorecords lawfully
distributed together as a unit for public performance or sale in the United
States,
if no more than three such selections are transmitted
consecutively:
Provided, That the transmission of selections
in excess of the numerical limits provided for in clauses (A) and (B) from
multiple phonorecords shall nonetheless qualify as a sound recording performance
complement if the programming of the multiple phonorecords was not willfully
intended to avoid the numerical limitations prescribed in such clauses.
(14) A “subscription” transmission is a transmission
that is controlled and limited to particular recipients, and for which consideration
is required to be paid or otherwise given by or on behalf of the recipient
to receive the transmission or a package of transmissions including the transmission.
(15) A “transmission” is either an initial
transmission or a retransmission.
In the case of nondramatic musical works, the exclusive rights
provided by clauses (1) and (3) of section 106,
to make and to distribute phonorecords of such works, are subject to compulsory
licensing under the conditions specified by this section.
(a) Availability and Scope of
Compulsory License. —
(1) When phonorecords of a nondramatic musical work have
been distributed to the public in the United States under the authority of
the copyright owner, any other person, including those who make phonorecords
or digital phonorecord deliveries, may, by complying with the provisions of
this section, obtain a compulsory license to make and distribute phonorecords
of the work. A person may obtain a compulsory license only if his or her primary
purpose in making phonorecords is to distribute them to the public for private
use, including by means of a digital phonorecord delivery. A person may not
obtain a compulsory license for use of the work in the making of phonorecords
duplicating a sound recording fixed by another, unless:
(i) such sound recording was fixed lawfully; and
(ii) the making of the phonorecords was authorized by
the owner of copyright in the sound recording or, if the sound recording was
fixed before February 15, 1972, by any person who fixed the sound recording
pursuant to an express license from the owner of the copyright in the musical
work or pursuant to a valid compulsory license for use of such work in a sound
recording.
(2) A compulsory license includes the privilege of making
a musical arrangement of the work to the extent necessary to conform it to
the style or manner of interpretation of the performance involved, but the
arrangement shall not change the basic melody or fundamental character of
the work, and shall not be subject to protection as a derivative work under
this title, except with the express consent of the copyright owner.
(b) Notice of Intention to Obtain
Compulsory License. —
(1) Any person who wishes to obtain a compulsory license
under this section shall, before or within thirty days after making, and before
distributing any phonorecords of the work, serve notice of intention to do
so on the copyright owner. If the registration or other public records of
the Copyright Office do not identify the copyright owner and include an address
at which notice can be served, it shall be sufficient to file the notice of
intention in the Copyright Office. The notice shall comply, in form, content,
and manner of service, with requirements that the Register of Copyrights shall
prescribe by regulation.
(2) Failure to serve or file the notice required by clause
(1) forecloses the possibility of a compulsory license and, in the absence
of a negotiated license, renders the making and distribution of phonorecords
actionable as acts of infringement under section
501 and fully subject to the remedies provided by sections
502 through 506 and 509.
(c) Royalty Payable under Compulsory
License.50 —
(1) To be entitled to receive royalties under a compulsory
license, the copyright owner must be identified in the registration or other
public records of the Copyright Office. The owner is entitled to royalties
for phonorecords made and distributed after being so identified, but is not
entitled to recover for any phonorecords previously made and distributed.
(2) Except as provided by clause (1), the royalty under
a compulsory license shall be payable for every phonorecord made and distributed
in accordance with the license. For this purpose, and other than as provided
in paragraph (3), a phonorecord is considered “distributed” if the
person exercising the compulsory license has voluntarily and permanently parted
with its possession. With respect to each work embodied in the phonorecord,
the royalty shall be either two and three-fourths cents, or one-half of one
cent per minute of playing time or fraction thereof, whichever amount is larger.51
(3)(A) A compulsory license under this section includes
the right of the compulsory licensee to distribute or authorize the distribution
of a phonorecord of a nondramatic musical work by means of a digital transmission
which constitutes a digital phonorecord delivery, regardless of whether the
digital transmission is also a public performance of the sound recording under
section 106(6) of this title or of any nondramatic
musical work embodied therein under section 106(4)
of this title. For every digital phonorecord delivery by or under the authority
of the compulsory licensee —
(i) on or before December 31, 1997, the royalty payable
by the compulsory licensee shall be the royalty prescribed under paragraph
(2) and chapter 8 of this title; and
(ii) on or after January 1, 1998, the royalty payable
by the compulsory licensee shall be the royalty prescribed under subparagraphs
(B) through (F) and chapter 8 of this title.
(B) Notwithstanding any provision of the antitrust laws,
any copyright owners of nondramatic musical works and any persons entitled
to obtain a compulsory license under subsection (a)(1) may negotiate and agree
upon the terms and rates of royalty payments under this paragraph and the
proportionate division of fees paid among copyright owners, and may designate
common agents to negotiate, agree to, pay or receive such royalty payments.
Such authority to negotiate the terms and rates of royalty payments includes,
but is not limited to, the authority to negotiate the year during which the
royalty rates prescribed under subparagraphs (B) through (F) and chapter
8 of this title shall next be determined.
(C) During the period of June 30, 1996, through December
31, 1996, the Librarian of Congress shall cause notice to be published in
the Federal Register of the initiation of voluntary negotiation proceedings
for the purpose of determining reasonable terms and rates of royalty payments
for the activities specified by subparagraph (A) during the period beginning
January 1, 1998, and ending on the effective date of any new terms and rates
established pursuant to subparagraph (C), (D) or (F), or such other date (regarding
digital phonorecord deliveries) as the parties may agree. Such terms and rates
shall distinguish between (i) digital phonorecord deliveries where the reproduction
or distribution of a phonorecord is incidental to the transmission which constitutes
the digital phonorecord delivery, and (ii) digital phonorecord deliveries
in general. Any copyright owners of nondramatic musical works and any persons
entitled to obtain a compulsory license under subsection (a)(1) may submit
to the Librarian of Congress licenses covering such activities. The parties
to each negotiation proceeding shall bear their own costs.
(D) In the absence of license agreements negotiated under
subparagraphs (B) and (C), upon the filing of a petition in accordance with
section 803(a)(1), the Librarian of Congress
shall, pursuant to chapter 8, convene a copyright
arbitration royalty panel to determine a schedule of rates and terms which,
subject to subparagraph (E), shall be binding on all copyright owners of nondramatic
musical works and persons entitled to obtain a compulsory license under subsection
(a)(1) during the period beginning January 1, 1998, and ending on the effective
date of any new terms and rates established pursuant to subparagraph (C),
(D) or (F), or such other date (regarding digital phonorecord deliveries)
as may be determined pursuant to subparagraphs (B) and (C). Such terms and
rates shall distinguish between (i) digital phonorecord deliveries where the
reproduction or distribution of a phonorecord is incidental to the transmission
which constitutes the digital phonorecord delivery, and (ii) digital phonorecord
deliveries in general. In addition to the objectives set forth in section
801(b)(1), in establishing such rates and terms, the copyright arbitration
royalty panel may consider rates and terms under voluntary license agreements
negotiated as provided in subparagraphs (B) and (C). The royalty rates payable
for a compulsory license for a digital phonorecord delivery under this section
shall be established de novo and no precedential effect shall be given to
the amount of the royalty payable by a compulsory licensee for digital phonorecord
deliveries on or before December 31, 1997. The Librarian of Congress shall
also establish requirements by which copyright owners may receive reasonable
notice of the use of their works under this section, and under which records
of such use shall be kept and made available by persons making digital phonorecord
deliveries.
(E)(i) License agreements voluntarily negotiated at any
time between one or more copyright owners of nondramatic musical works and
one or more persons entitled to obtain a compulsory license under subsection
(a)(1) shall be given effect in lieu of any determination by the Librarian
of Congress. Subject to clause (ii), the royalty rates determined pursuant
to subparagraph (C), (D) or (F) shall be given effect in lieu of any contrary
royalty rates specified in a contract pursuant to which a recording artist
who is the author of a nondramatic musical work grants a license under that
person's exclusive rights in the musical work under paragraphs (1) and (3)
of section 106 or commits another person to
grant a license in that musical work under paragraphs (1) and (3) of section
106, to a person desiring to fix in a tangible medium of expression a
sound recording embodying the musical work.
(ii) The second sentence of clause (i) shall not apply
to —
(I) a contract entered into on or before June 22, 1995
and not modified thereafter for the purpose of reducing the royalty rates
determined pursuant to subparagraph (C), (D) or (F) or of increasing the number
of musical works within the scope of the contract covered by the reduced rates,
except if a contract entered into on or before June 22, 1995, is modified
thereafter for the purpose of increasing the number of musical works within
the scope of the contract, any contrary royalty rates specified in the contract
shall be given effect in lieu of royalty rates determined pursuant to subparagraph
(C), (D) or (F) for the number of musical works within the scope of the contract
as of June 22, 1995; and
(II) a contract entered into after the date that the sound
recording is fixed in a tangible medium of expression substantially in a form
intended for commercial release, if at the time the contract is entered into,
the recording artist retains the right to grant licenses as to the musical
work under paragraphs (1) and (3) of section 106.
(F) The procedures specified in subparagraphs (C) and
(D) shall be repeated and concluded, in accordance with regulations that the
Librarian of Congress shall prescribe, in each fifth calendar year after 1997,
except to the extent that different years for the repeating and concluding
of such proceedings may be determined in accordance with subparagraphs (B)
and (C).
(G) Except as provided in section
1002(e) of this title, a digital phonorecord delivery licensed under this
paragraph shall be accompanied by the information encoded in the sound recording,
if any, by or under the authority of the copyright owner of that sound recording,
that identifies the title of the sound recording, the featured recording artist
who performs on the sound recording, and related information, including information
concerning the underlying musical work and its writer.
(H)(i) A digital phonorecord delivery of a sound recording
is actionable as an act of infringement under section
501, and is fully subject to the remedies provided by sections
502 through 506 and section
509, unless —
(I) the digital phonorecord delivery has been authorized
by the copyright owner of the sound recording; and
(II) the owner of the copyright in the sound recording
or the entity making the digital phonorecord delivery has obtained a compulsory
license under this section or has otherwise been authorized by the copyright
owner of the musical work to distribute or authorize the distribution, by
means of a digital phonorecord delivery, of each musical work embodied in
the sound recording.
(ii) Any cause of action under this subparagraph shall
be in addition to those available to the owner of the copyright in the nondramatic
musical work under subsection (c)(6) and section
106(4) and the owner of the copyright in the sound recording under section
106(6).
(I) The liability of the copyright owner of a sound recording
for infringement of the copyright in a nondramatic musical work embodied in
the sound recording shall be determined in accordance with applicable law,
except that the owner of a copyright in a sound recording shall not be liable
for a digital phonorecord delivery by a third party if the owner of the copyright
in the sound recording does not license the distribution of a phonorecord
of the nondramatic musical work.
(J) Nothing in section 1008
shall be construed to prevent the exercise of the rights and remedies allowed
by this paragraph, paragraph (6), and chapter 5
in the event of a digital phonorecord delivery, except that no action alleging
infringement of copyright may be brought under this title against a manufacturer,
importer or distributor of a digital audio recording device, a digital audio
recording medium, an analog recording device, or an analog recording medium,
or against a consumer, based on the actions described in such section.
(K) Nothing in this section annuls or limits
(i) the exclusive right to publicly perform a sound recording
or the musical work embodied therein, including by means of a digital transmission,
under sections 106(4) and 106(6),
(ii) except for compulsory licensing under the conditions
specified by this section, the exclusive rights to reproduce and distribute
the sound recording and the musical work embodied therein under sections
106(1) and 106(3), including by means of
a digital phonorecord delivery, or (iii) any other rights under any other
provision of section 106, or remedies available
under this title, as such rights or remedies exist either before or after
the date of enactment of the Digital Performance Right in Sound Recordings
Act of 1995.
(L) The provisions of this section concerning digital
phonorecord deliveries shall not apply to any exempt transmissions or retransmissions
under section 114(d)(1). The exemptions created
in section 114(d)(1) do not expand or reduce
the rights of copyright owners under section 106(1)
through (5) with respect to such transmissions and retransmissions.
(4) A compulsory license under this section includes
the right of the maker of a phonorecord of a nondramatic musical work under
subsection (a)(1) to distribute or authorize distribution of such phonorecord
by rental, lease, or lending (or by acts or practices in the nature of rental,
lease, or lending). In addition to any royalty payable under clause (2) and
chapter 8 of this title, a royalty shall be payable
by the compulsory licensee for every act of distribution of a phonorecord
by or in the nature of rental, lease, or lending, by or under the authority
of the compulsory licensee. With respect to each nondramatic musical work
embodied in the phonorecord, the royalty shall be a proportion of the revenue
received by the compulsory licensee from every such act of distribution of
the phonorecord under this clause equal to the proportion of the revenue received
by the compulsory licensee from distribution of the phonorecord under clause
(2) that is payable by a compulsory licensee under that clause and under chapter
8. The Register of Copyrights shall issue regulations to carry out the
purpose of this clause.
(5) Royalty payments shall be made on or before the twentieth
day of each month and shall include all royalties for the month next preceding.
Each monthly payment shall be made under oath and shall comply with requirements
that the Register of Copyrights shall prescribe by regulation. The Register
shall also prescribe regulations under which detailed cumulative annual statements
of account, certified by a certified public accountant, shall be filed for
every compulsory license under this section. The regulations covering both
the monthly and the annual statements of account shall prescribe the form,
content, and manner of certification with respect to the number of records
made and the number of records distributed.
(6) If the copyright owner does not receive the monthly
payment and the monthly and annual statements of account when due, the owner
may give written notice to the licensee that, unless the default is remedied
within thirty days from the date of the notice, the compulsory license will
be automatically terminated. Such termination renders either the making or
the distribution, or both, of all phonorecords for which the royalty has not
been paid, actionable as acts of infringement under section
501 and fully subject to the remedies provided by sections
502 through 506 and 509.
(d) Definition. — As
used in this section, the following term has the following meaning: A “digital
phonorecord delivery” is each individual delivery of a phonorecord by
digital transmission of a sound recording which results in a specifically
identifiable reproduction by or for any transmission recipient of a phonorecord
of that sound recording, regardless of whether the digital transmission is
also a public performance of the sound recording or any nondramatic musical
work embodied therein. A digital phonorecord delivery does not result from
a real-time, non-interactive subscription transmission of a sound recording
where no reproduction of the sound recording or the musical work embodied
therein is made from the inception of the transmission through to its receipt
by the transmission recipient in order to make the sound recording audible.
(a) Applicability of Section. — This
section applies to any nondramatic musical work embodied in a phonorecord.
(b) Negotiated Licenses. —
(1) Authority for negotiations. — Any
owners of copyright in works to which this section applies and any operators
of coin-operated phonorecord players may negotiate and agree upon the terms
and rates of royalty payments for the performance of such works and the proportionate
division of fees paid among copyright owners, and may designate common agents
to negotiate, agree to, pay, or receive such royalty payments.
(2) Arbitration. — Parties
not subject to such a negotiation, may determine, by arbitration in accordance
with the provisions of chapter 8, the terms and
rates and the division of fees described in paragraph (1).
(c) License Agreements Superior
to Copyright Arbitration Royalty Panel Determinations. — License
agreements between one or more copyright owners and one or more operators
of coin-operated phonorecord players, which are negotiated in accordance with
subsection (b), shall be given effect in lieu of any otherwise applicable
determination by a copyright arbitration royalty panel.
(d) Definitions. — As
used in this section, the following terms mean the following:
(1) A “coin-operated phonorecord player” is
a machine or device that —
(A) is employed solely for the performance of nondramatic
musical works by means of phonorecords upon being activated by the insertion
of coins, currency, tokens, or other monetary units or their equivalent;
(B) is located in an establishment making no direct or
indirect charge for admission;
(C) is accompanied by a list which is comprised of the
titles of all the musical works available for performance on it, and is affixed
to the phonorecord player or posted in the establishment in a prominent position
where it can be readily examined by the public; and
(D) affords a choice of works available for performance
and permits the choice to be made by the patrons of the establishment in which
it is located.
(2) An “operator” is any person who, alone
or jointly with others —
(A) owns a coin-operated phonorecord player;
(B) has the power to make a coin-operated phonorecord
player available for placement in an establishment for purposes of public
performance; or
(C) has the power to exercise primary control over the
selection of the musical works made available for public performance on a
coin-operated phonorecord player.
(a) Making of Additional Copy
or Adaptation by Owner of Copy. — Notwithstanding the
provisions of section 106, it is not an infringement
for the owner of a copy of a computer program to make or authorize the making
of another copy or adaptation of that computer program provided:
(1) that such a new copy or adaptation is created as
an essential step in the utilization of the computer program in conjunction
with a machine and that it is used in no other manner, or
(2) that such new copy or adaptation is for archival
purposes only and that all archival copies are destroyed in the event that
continued possession of the computer program should cease to be rightful.
(b) Lease, Sale, or Other Transfer
of Additional Copy or Adaptation. — Any exact copies
prepared in accordance with the provisions of this section may be leased,
sold, or otherwise transferred, along with the copy from which such copies
were prepared, only as part of the lease, sale, or other transfer of all rights
in the program. Adaptations so prepared may be transferred only with the authorization
of the copyright owner.
(c) Machine Maintenance or Repair. — Notwithstanding
the provisions of section 106, it is not an
infringement for the owner or lessee of a machine to make or authorize the
making of a copy of a computer program if such copy is made solely by virtue
of the activation of a machine that lawfully contains an authorized copy of
the computer program, for purposes only of maintenance or repair of that machine,
if —
(1) such new copy is used in no other manner and is destroyed
immediately after the maintenance or repair is completed; and
(2) with respect to any computer program or part thereof
that is not necessary for that machine to be activated, such program or part
thereof is not accessed or used other than to make such new copy by virtue
of the activation of the machine.
(d) Definitions. — For
purposes of this section —
(1) the “maintenance” of a machine is the servicing
of the machine in order to make it work in accordance with its original specifications
and any changes to those specifications authorized for that machine; and
(2) the “repair” of a machine is the restoring
of the machine to the state of working in accordance with its original specifications
and any changes to those specifications authorized for that machine.
(a) The exclusive rights provided by section 106
shall, with respect to the works specified by subsection (b) and the activities
specified by subsection (d), be subject to the conditions and limitations
prescribed by this section.
(b) Notwithstanding any provision of the antitrust laws,
any owners of copyright in published nondramatic musical works and published
pictorial, graphic, and sculptural works and any public broadcasting entities,
respectively, may negotiate and agree upon the terms and rates of royalty
payments and the proportionate division of fees paid among various copyright
owners, and may designate common agents to negotiate, agree to, pay, or receive
payments.
(1) Any owner of copyright in a work specified in this
subsection or any public broadcasting entity may submit to the Librarian of
Congress proposed licenses covering such activities with respect to such works.
The Librarian of Congress shall proceed on the basis of the proposals submitted
as well as any other relevant information. The Librarian of Congress shall
permit any interested party to submit information relevant to such proceedings.
(2) License agreements voluntarily negotiated at any
time between one or more copyright owners and one or more public broadcasting
entities shall be given effect in lieu of any determination by the Librarian
of Congress: Provided, That copies of such agreements are filed in
the Copyright Office within thirty days of execution in accordance with regulations
that the Register of Copyrights shall prescribe.
(3) In the absence of license agreements negotiated under
paragraph (2), the Librarian of Congress shall, pursuant to chapter
8, convene a copyright arbitration royalty panel to determine and publish
in the Federal Register a schedule of rates and terms which, subject to paragraph
(2), shall be binding on all owners of copyright in works specified by this
subsection and public broadcasting entities, regardless of whether such copyright
owners have submitted proposals to the Librarian of Congress. In establishing
such rates and terms the copyright arbitration royalty panel may consider
the rates for comparable circumstances under voluntary license agreements
negotiated as provided in paragraph (2). The Librarian of Congress shall also
establish requirements by which copyright owners may receive reasonable notice
of the use of their works under this section, and under which records of such
use shall be kept by public broadcasting entities.
(c) The initial procedure specified in subsection (b)
shall be repeated and concluded between June 30 and December 31, 1997, and
at five-year intervals thereafter, in accordance with regulations that the
Librarian of Congress shall prescribe.
(d) Subject to the terms of any voluntary license agreements
that have been negotiated as provided by subsection (b) (2), a public broadcasting
entity may, upon compliance with the provisions of this section, including
the rates and terms established by a copyright arbitration royalty panel under
subsection (b) (3), engage in the following activities with respect to published
nondramatic musical works and published pictorial, graphic, and sculptural
works:
(1) performance or display of a work by or in the course
of a transmission made by a noncommercial educational broadcast station referred
to in subsection (g); and
(2) production of a transmission program, reproduction
of copies or phonorecords of such a transmission program, and distribution
of such copies or phonorecords, where such production, reproduction, or distribution
is made by a nonprofit institution or organization solely for the purpose
of transmissions specified in paragraph (1); and
(3) the making of reproductions by a governmental body
or a nonprofit institution of a transmission program simultaneously with its
transmission as specified in paragraph (1), and the performance or display
of the contents of such program under the conditions specified by paragraph
(1) of section 110, but only if the reproductions
are used for performances or displays for a period of no more than seven days
from the date of the transmission specified in paragraph (1), and are destroyed
before or at the end of such period. No person supplying, in accordance with
paragraph (2), a reproduction of a transmission program to governmental bodies
or nonprofit institutions under this paragraph shall have any liability as
a result of failure of such body or institution to destroy such reproduction:
Provided, That it shall have notified such body or institution of the
requirement for such destruction pursuant to this paragraph: And provided
further, That if such body or institution itself fails to destroy such
reproduction it shall be deemed to have infringed.
(e) Except as expressly provided in this subsection, this
section shall have no applicability to works other than those specified in
subsection (b). Owners of copyright in nondramatic literary works and public
broadcasting entities may, during the course of voluntary negotiations, agree
among themselves, respectively, as to the terms and rates of royalty payments
without liability under the antitrust laws. Any such terms and rates of royalty
payments shall be effective upon filing in the Copyright Office, in accordance
with regulations that the Register of Copyrights shall prescribe.
(f) Nothing in this section shall be construed to permit,
beyond the limits of fair use as provided by section
107, the unauthorized dramatization of a nondramatic musical work, the
production of a transmission program drawn to any substantial extent from
a published compilation of pictorial, graphic, or sculptural works, or the
unauthorized use of any portion of an audiovisual work.
(g) As used in this section, the term “public broadcasting
entity” means a noncommercial educational broadcast station as defined
in section 397 of title 47 and any nonprofit institution or organization engaged
in the activities described in paragraph (2) of subsection (d).
(a) Secondary Transmissions by
Satellite Carriers. —
(1) Superstations and PBS satellite
feed. — Subject to the provisions of paragraphs (3),
(4), and (6) of this subsection and section 114(d),
secondary transmissions of a performance or display of a work embodied in
a primary transmission made by a superstation or by the Public Broadcasting
Service satellite feed shall be subject to statutory licensing under this
section if the secondary transmission is made by a satellite carrier to the
public for private home viewing, with regard to secondary transmissions the
satellite carrier is in compliance with the rules, regulations, or authorizations
of the Federal Communications Commission governing the carriage of television
broadcast station signals, and the carrier makes a direct or indirect charge
for each retransmission service to each household receiving the secondary
transmission or to a distributor that has contracted with the carrier for
direct or indirect delivery of the secondary transmission to the public for
private home viewing. In the case of the Public Broadcasting Service satellite
feed, the statutory license shall be effective until January 1, 2002.56
(2) Network stations. —
(A) In general. — Subject
to the provisions of subparagraphs (B) and (C) of this paragraph and paragraphs
(3), (4), (5), and (6) of this subsection and section
114(d), secondary transmissions of a performance or display of a work
embodied in a primary transmission made by a network station shall be subject
to statutory licensing under this section if the secondary transmission is
made by a satellite carrier to the public for private home viewing, with regard
to secondary transmissions the satellite carrier is in compliance with the
rules, regulations, or authorizations of the Federal Communications Commission
governing the carriage of television broadcast station signals, and the carrier
makes a direct or indirect charge for such retransmission service to each
subscriber receiving the secondary transmission.
(B) Secondary transmissions to
unserved households. —
(i) In general. — The
statutory license provided for in subparagraph (A) shall be limited to secondary
transmissions of the signals of no more than two network stations in a single
day for each television network to persons who reside in unserved households.
(ii) Accurate determinations
of eligibility. —
(I) Accurate predictive model. — In
determining presumptively whether a person resides in an unserved household
under subsection (d)(10)(A), a court shall rely on the Individual Location
Longley-Rice model set forth by the Federal Communications Commission in Docket
No. 98-201, as that model may be amended by the Commission over time under
section 339(c)(3) of the Communications Act of 1934 to increase the accuracy
of that model.
(II) Accurate measurements. — For
purposes of site measurements to determine whether a person resides in an
unserved household under subsection (d)(10)(A), a court shall rely on section
339(c)(4) of the Communications Act of 1934.
(iii) C-band exemption to unserved
households. —
(I) In general. — The
limitations of clause (i) shall not apply to any secondary transmissions by
C-band services of network stations that a subscriber to C-band service received
before any termination of such secondary transmissions before October 31,
1999.
(II) Definition. — In
this clause the term “C-band service” means a service that is
licensed by the Federal Communications Commission and operates in the Fixed
Satellite Service under part 25 of title 47 of the Code of Federal Regulations.
(C) Submission of subscriber lists
to networks. — A satellite carrier that makes secondary
transmissions of a primary transmission made by a network station pursuant
to subparagraph (A) shall, 90 days after commencing such secondary transmissions,
submit to the network that owns or is affiliated with the network station
a list identifying (by name and street address, including county and zip code)
all subscribers to which the satellite carrier makes secondary transmissions
of that primary transmission. Thereafter, on the 15th of each month, the satellite
carrier shall submit to the network a list identifying (by name and street
address, including county and zip code) any persons who have been added or
dropped as such subscribers since the last submission under this subparagraph.
Such subscriber information submitted by a satellite carrier may be used only
for purposes of monitoring compliance by the satellite carrier with this subsection.
The submission requirements of this subparagraph shall apply to a satellite
carrier only if the network to whom the submissions are to be made places
on file with the Register of Copyrights a document identifying the name and
address of the person to whom such submissions are to be made. The Register
shall maintain for public inspection a file of all such documents.
(3) Noncompliance with reporting
and payment requirements. — Notwithstanding the provisions
of paragraphs (1) and (2), the willful or repeated secondary transmission
to the public by a satellite carrier of a primary transmission made by a superstation
or a network station and embodying a performance or display of a work is actionable
as an act of infringement under section 501,
and is fully subject to the remedies provided by sections
502 through 506 and 509,
where the satellite carrier has not deposited the statement of account and
royalty fee required by subsection (b), or has failed to make the submissions
to networks required by paragraph (2)(C).
(4) Willful alterations. — Notwithstanding
the provisions of paragraphs (1) and (2), the secondary transmission to the
public by a satellite carrier of a performance or display of a work embodied
in a primary transmission made by a superstation or a network station is actionable
as an act of infringement under section 501,
and is fully subject to the remedies provided by sections
502 through 506 and sections
509 and 510, if the content of the particular
program in which the performance or display is embodied, or any commercial
advertising or station announcement transmitted by the primary transmitter
during, or immediately before or after, the transmission of such program,
is in any way willfully altered by the satellite carrier through changes,
deletions, or additions, or is combined with programming from any other broadcast
signal.
(5) Violation of territorial
restrictions on statutory license for network stations. —
(A) Individual violations. — The
willful or repeated secondary transmission by a satellite carrier of a primary
transmission made by a network station and embodying a performance or display
of a work to a subscriber who does not reside in an unserved household is
actionable as an act of infringement under section
501 and is fully subject to the remedies provided by sections
502 through 506 and 509,
except that —
(i) no damages shall be awarded for such act of infringement
if the satellite carrier took corrective action by promptly withdrawing service
from the ineligible subscriber, and
(ii) any statutory damages shall not exceed $5 for such
subscriber for each month during which the violation occurred.
(B) Pattern of violations. — If
a satellite carrier engages in a willful or repeated pattern or practice of
delivering a primary transmission made by a network station and embodying
a performance or display of a work to subscribers who do not reside in unserved
households, then in addition to the remedies set forth in subparagraph (A) —
(i) if the pattern or practice has been carried out on
a substantially nationwide basis, the court shall order a permanent injunction
barring the secondary transmission by the satellite carrier, for private home
viewing, of the primary transmissions of any primary network station affiliated
with the same network, and the court may order statutory damages of not to
exceed $250,000 for each 6-month period during which the pattern or practice
was carried out; and
(ii) if the pattern or practice has been carried out
on a local or regional basis, the court shall order a permanent injunction
barring the secondary transmission, for private home viewing in that locality
or region, by the satellite carrier of the primary transmissions of any primary
network station affiliated with the same network, and the court may order
statutory damages of not to exceed $250,000 for each 6-month period during
which the pattern or practice was carried out.
(C) Previous subscribers excluded. — Subparagraphs
(A) and (B) do not apply to secondary transmissions by a satellite carrier
to persons who subscribed to receive such secondary transmissions from the
satellite carrier or a distributor before November 16, 1988.
(D) Burden of proof.57 — In
any action brought under this paragraph, the satellite carrier shall have
the burden of proving that its secondary transmission of a primary transmission
by a network station is for private home viewing to an unserved household.
(E) Exception. — The
secondary transmission by a satellite carrier of a performance or display
of a work embodied in a primary transmission made by a network station to
subscribers who do not reside in unserved households shall not be an act of
infringement if —
(i) the station on May 1, 1991, was retransmitted by
a satellite carrier and was not on that date owned or operated by or affiliated
with a television network that offered interconnected program service on a
regular basis for 15 or more hours per week to at least 25 affiliated television
licensees in 10 or more States;
(ii) as of July 1, 1998, such station was retransmitted
by a satellite carrier under the statutory license of this section; and
(iii) the station is not owned or operated by or affiliated
with a television network that, as of January 1, 1995, offered interconnected
program service on a regular basis for 15 or more hours per week to at least
25 affiliated television licensees in 10 or more States.
(6) Discrimination by a satellite
carrier. — Notwithstanding the provisions of paragraph
(1), the willful or repeated secondary transmission to the public by a satellite
carrier of a performance or display of a work embodied in a primary transmission
made by a superstation or a network station is actionable as an act of infringement
under section 501, and is fully subject to
the remedies provided by sections 502 through
506 and 509,
if the satellite carrier unlawfully discriminates against a distributor.58
(7) Geographic limitation on
secondary transmissions. — The statutory license created
by this section shall apply only to secondary transmissions to households
located in the United States.
(8) Transitional signal intensity
measurement procedures.59 —
(A) In general. — Subject
to subparagraph (C), upon a challenge by a network station regarding whether
a subscriber is an unserved household within the predicted Grade B Contour
of the station, the satellite carrier shall, within 60 days after the receipt
of the challenge —
(i) terminate service to that household of the signal
that is the subject of the challenge, and within 30 days thereafter notify
the network station that made the challenge that service to that household
has been terminated; or
(ii) conduct a measurement of the signal intensity of
the subscriber's household to determine whether the household is an unserved
household after giving reasonable notice to the network station of the satellite
carrier's intent to conduct the measurement.
(B) Effect of measurement. — If
the satellite carrier conducts a signal intensity measurement under subparagraph
(A) and the measurement indicates that —
(i) the household is not an unserved household, the satellite
carrier shall, within 60 days after the measurement is conducted, terminate
the service to that household of the signal that is the subject of the challenge,
and within 30 days thereafter notify the network station that made the challenge
that service to that household has been terminated; or
(ii) the household is an unserved household, the station
challenging the service shall reimburse the satellite carrier for the costs
of the signal measurement within 60 days after receipt of the measurement
results and a statement of the costs of the measurement.
(C) Limitation on measurements. —
(i) Notwithstanding subparagraph (A), a satellite carrier
may not be required to conduct signal intensity measurements during any calendar
year in excess of 5 percent of the number of subscribers within the network
station's local market that have subscribed to the service as of the effective
date of the Satellite Home Viewer Act of 1994.
(ii) If a network station challenges whether a subscriber
is an unserved household in excess of 5 percent of the subscribers within
the network station's local market within a calendar year, subparagraph (A)
shall not apply to challenges in excess of such 5 percent, but the station
may conduct its own signal intensity measurement of the subscriber's household
after giving reasonable notice to the satellite carrier of the network station's
intent to conduct the measurement. If such measurement indicates that the
household is not an unserved household, the carrier shall, within 60 days
after receipt of the measurement, terminate service to the household of the
signal that is the subject of the challenge and within 30 days thereafter
notify the network station that made the challenge that service has been terminated.
The carrier shall also, within 60 days after receipt of the measurement and
a statement of the costs of the measurement, reimburse the network station
for the cost it incurred in conducting the measurement.
(D) Outside the predicted grade
b contour. —
(i) If a network station challenges whether a subscriber
is an unserved household outside the predicted Grade B Contour of the station,
the station may conduct a measurement of the signal intensity of the subscriber's
household to determine whether the household is an unserved household after
giving reasonable notice to the satellite carrier of the network station's
intent to conduct the measurement.
(ii) If the network station conducts a signal intensity
measurement under clause (i) and the measurement indicates that —
(I) the household is not an unserved household, the station
shall forward the results to the satellite carrier who shall, within 60 days
after receipt of the measurement, terminate the service to the household of
the signal that is the subject of the challenge, and shall reimburse the station
for the costs of the measurement within 60 days after receipt of the measurement
results and a statement of such costs; or
(II) the household is an unserved household, the station
shall pay the costs of the measurement.
(9) Loser pays for signal intensity
measurement; recovery of measurement costs in a civil action. — In
any civil action filed relating to the eligibility of subscribing households
as unserved households —
(A) a network station challenging such eligibility shall,
within 60 days after receipt of the measurement results and a statement of
such costs, reimburse the satellite carrier for any signal intensity measurement
that is conducted by that carrier in response to a challenge by the network
station and that establishes the household is an unserved household; and
(B) a satellite carrier shall, within 60 days after receipt
of the measurement results and a statement of such costs, reimburse the network
station challenging such eligibility for any signal intensity measurement
that is conducted by that station and that establishes the household is not
an unserved household.
(10) Inability to conduct measurement. — If
a network station makes a reasonable attempt to conduct a site measurement
of its signal at a subscriber's household and is denied access for the purpose
of conducting the measurement, and is otherwise unable to conduct a measurement,
the satellite carrier shall within 60 days notice thereof, terminate service
of the station's network to that household.
(11) Service to recreational
vehicles and commercial trucks. —
(A) Exemption. —
(i) In general. — For
purposes of this subsection, and subject to clauses (ii) and (iii), the term
“unserved household” shall include —
(I) recreational vehicles as defined in regulations of
the Secretary of Housing and Urban Development under section 3282.8 of title
24 of the Code of Federal Regulations; and
(II) commercial trucks that qualify as commercial motor
vehicles under regulations of the Secretary of Transportation under section
383.5 of title 49 of the Code of Federal Regulations.
(ii) Limitation. — Clause
(i) shall apply only to a recreational vehicle or commercial truck if any
satellite carrier that proposes to make a secondary transmission of a network
station to the operator of such a recreational vehicle or commercial truck
complies with the documentation requirements under subparagraphs (B) and (C).
(iii) Exclusion. — For
purposes of this subparagraph, the terms “recreational vehicle”
and “commercial truck” shall not include any fixed dwelling, whether
a mobile home or otherwise.
(B) Documentation requirements. — A
recreational vehicle or commercial truck shall be deemed to be an unserved
household beginning 10 days after the relevant satellite carrier provides
to the network that owns or is affiliated with the network station that will
be secondarily transmitted to the recreational vehicle or commercial truck
the following documents:
(i) Declaration. — A
signed declaration by the operator of the recreational vehicle or commercial
truck that the satellite dish is permanently attached to the recreational
vehicle or commercial truck, and will not be used to receive satellite programming
at any fixed dwelling.
(ii) Registration. — In
the case of a recreational vehicle, a copy of the current State vehicle registration
for the recreational vehicle.
(iii) Registration and license. — In
the case of a commercial truck, a copy of —
(I) the current State vehicle registration for the truck;
and
(II) a copy of a valid, current commercial driver's license,
as defined in regulations of the Secretary of Transportation under section
383 of title 49 of the Code of Federal Regulations, issued to the operator.
(C) Updated documentation requirements. — If
a satellite carrier wishes to continue to make secondary transmissions to
a recreational vehicle or commercial truck for more than a 2-year period,
that carrier shall provide each network, upon request, with updated documentation
in the form described under subparagraph (B) during the 90 days before expiration
of that 2-year period.
(12) Statutory license contingent
on compliance with FCC rules and remedial steps. — Notwithstanding
any other provision of this section, the willful or repeated secondary transmission
to the public by a satellite carrier of a primary transmission embodying a
performance or display of a work made by a broadcast station licensed by the
Federal Communications Commission is actionable as an act of infringement
under section 501, and is fully subject to
the remedies provided by sections 502 through
506 and 509,
if, at the time of such transmission, the satellite carrier is not in compliance
with the rules, regulations, and authorizations of the Federal Communications
Commission concerning the carriage of television broadcast station signals.60
(b) Statutory License for Secondary
Transmissions for Private Home Viewing. —
(1) Deposits with the Register
of Copyrights. — A satellite carrier whose secondary
transmissions are subject to statutory licensing under subsection (a) shall,
on a semiannual basis, deposit with the Register of Copyrights, in accordance
with requirements that the Register shall prescribe by regulation —
(A) a statement of account, covering the preceding 6-month
period, specifying the names and locations of all superstations and network
stations whose signals were retransmitted, at any time during that period,
to subscribers for private home viewing as described in subsections (a)(1)
and (a)(2), the total number of subscribers that received such retransmissions,
and such other data as the Register of Copyrights may from time to time prescribe
by regulation; and
(B) a royalty fee for that 6-month period, computed by —
(i) multiplying the total number of subscribers receiving
each secondary transmission of a superstation during each calendar month by
17.5 cents per subscriber in the case of superstations that as retransmitted
by the satellite carrier include any program which, if delivered by any cable
system in the United States, would be subject to the syndicated exclusivity
rules of the Federal Communications Commission, and 14 cents per subscriber
in the case of superstations that are syndex-proof as defined in section 258.2
of title 37, Code of Federal Regulations;
(ii) multiplying the number of subscribers receiving
each secondary transmission of a network station or the Public Broadcasting
Service satellite feed during each calendar month by 6 cents;61
and
(iii) adding together the totals computed under clauses
(i) and (ii).
(2) Investment of fees. — The
Register of Copyrights shall receive all fees deposited under this section
and, after deducting the reasonable costs incurred by the Copyright Office
under this section (other than the costs deducted under paragraph (4)), shall
deposit the balance in the Treasury of the United States, in such manner as
the Secretary of the Treasury directs. All funds held by the Secretary of
the Treasury shall be invested in interest-bearing securities of the United
States for later distribution with interest by the Librarian of Congress as
provided by this title.
(3) Persons to whom fees are
distributed. — The royalty fees deposited under paragraph
(2) shall, in accordance with the procedures provided by paragraph (4), be
distributed to those copyright owners whose works were included in a secondary
transmission for private home viewing made by a satellite carrier during the
applicable 6-month accounting period and who file a claim with the Librarian
of Congress under paragraph (4).
(4) Procedures for distribution. — The
royalty fees deposited under paragraph (2) shall be distributed in accordance
with the following procedures:
(A) Filing of claims for fees. — During
the month of July in each year, each person claiming to be entitled to statutory
license fees for secondary transmissions for private home viewing shall file
a claim with the Librarian of Congress, in accordance with requirements that
the Librarian of Congress shall prescribe by regulation. For purposes of this
paragraph, any claimants may agree among themselves as to the proportionate
division of statutory license fees among them, may lump their claims together
and file them jointly or as a single claim, or may designate a common agent
to receive payment on their behalf.
(B) Determination of controversy;
distributions. — After the first day of August of each
year, the Librarian of Congress shall determine whether there exists a controversy
concerning the distribution of royalty fees. If the Librarian of Congress
determines that no such controversy exists, the Librarian of Congress shall,
after deducting reasonable administrative costs under this paragraph, distribute
such fees to the copyright owners entitled to receive them, or to their designated
agents. If the Librarian of Congress finds the existence of a controversy,
the Librarian of Congress shall, pursuant to chapter
8 of this title, convene a copyright arbitration royalty panel to determine
the distribution of royalty fees.
(C) Withholding of fees during
controversy. — During the pendency of any proceeding
under this subsection, the Librarian of Congress shall withhold from distribution
an amount sufficient to satisfy all claims with respect to which a controversy
exists, but shall have discretion to proceed to distribute any amounts that
are not in controversy.
(c) Adjustment of Royalty Fees. —
(1) Applicability and determination
of royalty fees. — The rate of the royalty fee payable
under subsection (b)(1)(B) shall be effective unless a royalty fee is established
under paragraph (2) or (3) of this subsection.
(2) Fee set by voluntary negotiation. —
(A) Notice of initiation of proceedings. — On
or before July 1, 1996, the Librarian of Congress shall cause notice to be
published in the Federal Register of the initiation of voluntary negotiation
proceedings for the purpose of determining the royalty fee to be paid by satellite
carriers under subsection (b)(1)(B).
(B) Negotiations. — Satellite
carriers, distributors, and copyright owners entitled to royalty fees under
this section shall negotiate in good faith in an effort to reach a voluntary
agreement or voluntary agreements for the payment of royalty fees. Any such
satellite carriers, distributors, and copyright owners may at any time negotiate
and agree to the royalty fee, and may designate common agents to negotiate,
agree to, or pay such fees. If the parties fail to identify common agents,
the Librarian of Congress shall do so, after requesting recommendations from
the parties to the negotiation proceeding. The parties to each negotiation
proceeding shall bear the entire cost thereof.
(C) Agreements binding on parties;
filing of agreements. — Voluntary agreements negotiated
at any time in accordance with this paragraph shall be binding upon all satellite
carriers, distributors, and copyright owners that are parties thereto. Copies
of such agreements shall be filed with the Copyright Office within 30 days
after execution in accordance with regulations that the Register of Copyrights
shall prescribe.
(D) Period agreement is in effect. — The
obligation to pay the royalty fees established under a voluntary agreement
which has been filed with the Copyright Office in accordance with this paragraph
shall become effective on the date specified in the agreement, and shall remain
in effect until December 31, 1999, or in accordance with the terms of the
agreement, whichever is later.
(3) Fee set by compulsory arbitration. —
(A) Notice of initiation of proceedings. — On
or before January 1, 1997, the Librarian of Congress shall cause notice to
be published in the Federal Register of the initiation of arbitration proceedings
for the purpose of determining a reasonable royalty fee to be paid under subsection
(b)(1)(B) by satellite carriers who are not parties to a voluntary agreement
filed with the Copyright Office in accordance with paragraph (2). Such arbitration
proceeding shall be conducted under chapter 8.
(B) Establishment of royalty fees. — In
determining royalty fees under this paragraph, the copyright arbitration royalty
panel appointed under chapter 8 shall establish
fees for the retransmission of network stations and superstations that most
clearly represent the fair market value of secondary transmissions. In determining
the fair market value, the panel shall base its decision on economic, competitive,
and programming information presented by the parties, including —
(i) the competitive environment in which such programming
is distributed, the cost of similar signals in similar private and compulsory
license marketplaces, and any special features and conditions of the retransmission
marketplace;
(ii) the economic impact of such fees on copyright owners
and satellite carriers; and
(iii) the impact on the continued availability of secondary
transmissions to the public.
(C) Period during which decision
of arbitration panel or order of librarian effective. — The
obligation to pay the royalty fee established under a determination which —
(i) is made by a copyright arbitration royalty panel
in an arbitration proceeding under this paragraph and is adopted by the Librarian
of Congress under section 802(f), or
(ii) is established by the Librarian of Congress under
section 802(f), shall become effective as provided
in section 802(g ), or July 1, 1997, whichever
is later.
(D) Persons subject to royalty
fee. — The royalty fee referred to in subparagraph
(C) shall be binding on all satellite carriers, distributors, and copyright
owners, who are not party to a voluntary agreement filed with the Copyright
Office under paragraph (2).
(4) Reduction.62 —
(A) Superstation. — The
rate of the royalty fee in effect on January 1, 1998, payable in each case
under subsection (b)(1)(B)(i) shall be reduced by 30 percent.
(B) Network and public broadcasting
satellite feed. — The rate of the royalty fee in effect
on January 1, 1998, payable under subsection (b)(1)(B)(ii) shall be reduced
by 45 percent.
(5) Public broadcasting service
as agent. — For purposes of section
802, with respect to royalty fees paid by satellite carriers for retransmitting
the Public Broadcasting Service satellite feed, the Public Broadcasting Service
shall be the agent for all public television copyright claimants and all Public
Broadcasting Service member stations.63
(d) Definitions. — As
used in this section —
(1) Distributor. — The
term “distributor” means an entity which contracts to distribute
secondary transmissions from a satellite carrier and, either as a single channel
or in a package with other programming, provides the secondary transmission
either directly to individual subscribers for private home viewing or indirectly
through other program distribution entities.
(2) Network station. — The
term “network station” means —
(A) a television broadcast station, including any translator
station or terrestrial satellite station that rebroadcasts all or substantially
all of the programming broadcast by a network station, that is owned or operated
by, or affiliated with, one or more of the television networks in the United
States which offer an interconnected program service on a regular basis for
15 or more hours per week to at least 25 of its affiliated television licensees
in 10 or more States; or
(B) a noncommercial educational broadcast station (as
defined in section 397 of the Communications Act of 1934).
(3) Primary network station. — The
term “primary network station” means a network station that broadcasts
or rebroadcasts the basic programming service of a particular national network.
(4) Primary transmission. — The
term “primary transmission” has the meaning given that term in
section 111(f) of this title.
(5) Private home viewing. — The
term “private home viewing” means the viewing, for private use
in a household by means of satellite reception equipment which is operated
by an individual in that household and which serves only such household, of
a secondary transmission delivered by a satellite carrier of a primary transmission
of a television station licensed by the Federal Communications Commission.
(6) Satellite carrier. — The
term “satellite carrier” means an entity that uses the facilities
of a satellite or satellite service licensed by the Federal Communications
Commission and operates in the Fixed-Satellite Service under part 25 of title
47 of the Code of Federal Regulations or the Direct Broadcast Satellite Service
under part 100 of title 47 of the Code of Federal Regulations to establish
and operate a channel of communications for point-to-multipoint distribution
of television station signals, and that owns or leases a capacity or service
on a satellite in order to provide such point-to-multipoint distribution,
except to the extent that such entity provides such distribution pursuant
to tariff under the Communications Act of 1934, other than for private home
viewing.
(7) Secondary transmission. — The
term “secondary transmission” has the meaning given that term
in section 111(f) of this title.
(8) Subscriber. — The
term “subscriber” means an individual who receives a secondary
transmission service for private home viewing by means of a secondary transmission
from a satellite carrier and pays a fee for the service, directly or indirectly,
to the satellite carrier or to a distributor.
(9) Superstation. — The
term “superstation” —
(A) means a television broadcast station, other than a
network station, licensed by the Federal Communications Commission that is
secondarily transmitted by a satellite carrier; and
(B) except for purposes of computing the royalty fee,
includes the Public Broadcasting Service satellite feed.64
(10) Unserved household. — The
term “unserved household”, with respect to a particular television
network, means a household that —
(A) cannot receive, through the use of a conventional,
stationary, outdoor rooftop receiving antenna, an over-the-air signal of a
primary network station affiliated with that network of Grade B intensity
as defined by the Federal Communications Commission under section 73.683(a)
of title 47 of the Code of Federal Regulations, as in effect on January 1,
1999;
(B) is subject to a waiver granted under regulations established
under section 339(c)(2) of the Communications Act of 1934;
(C) is a subscriber to whom subsection (e) applies;
(D) is a subscriber to whom subsection (a)(11) applies;
or
(E) is a subscriber to whom the exemption under subsection
(a)(2)(B)(iii) applies.
(11) Local market. — The
term “local market” has the meaning given such term under section
122(j).
(12) Public broadcasting service
satellite feed. — The term “Public Broadcasting
Service satellite feed” means the national satellite feed distributed
and designated for purposes of this section by the Public Broadcasting Service
consisting of educational and informational programming intended for private
home viewing, to which the Public Broadcasting Service holds national terrestrial
broadcast rights.65
(e) Moratorium on Copyright Liability. — Until
December 31, 2004, a subscriber who does not receive a signal of Grade A intensity
(as defined in the regulations of the Federal Communications Commission under
section 73.683(a) of title 47 of the Code of Federal Regulations, as in effect
on January 1, 1999, or predicted by the Federal Communications Commission
using the Individual Location Longley-Rice methodology described by the Federal
Communications Commission in Docket No. 98-201) of a local network television
broadcast station shall remain eligible to receive signals of network stations
affiliated with the same network, if that subscriber had satellite service
of such network signal terminated after July 11, 1998, and before October
31, 1999, as required by this section, or received such service on October
31, 1999.
(a) Pictorial Representations
Permitted. — The copyright in an architectural work
that has been constructed does not include the right to prevent the making,
distributing, or public display of pictures, paintings, photographs, or other
pictorial representations of the work, if the building in which the work is
embodied is located in or ordinarily visible from a public place.
(b) Alterations to and Destruction
of Buildings. — Notwithstanding the provisions of section
106(2), the owners of a building embodying an architectural work may,
without the consent of the author or copyright owner of the architectural
work, make or authorize the making of alterations to such building, and destroy
or authorize the destruction of such building.
(a) Notwithstanding the provisions of section
106, it is not an infringement of copyright for an authorized entity to
reproduce or to distribute copies or phonorecords of a previously published,
nondramatic literary work if such copies or phonorecords are reproduced or
distributed in specialized formats exclusively for use by blind or other persons
with disabilities.
(b)(1) Copies or phonorecords to which this section applies
shall —
(A) not be reproduced or distributed in a format other
than a specialized format exclusively for use by blind or other persons with
disabilities;
(B) bear a notice that any further reproduction or distribution
in a format other than a specialized format is an infringement; and
(C) include a copyright notice identifying the copyright
owner and the date of the original publication.
(2) The provisions of this subsection shall not apply
to standardized, secure, or norm-referenced tests and related testing material,
or to computer programs, except the portions thereof that are in conventional
human language (including descriptions of pictorial works) and displayed to
users in the ordinary course of using the computer programs.
(c) For purposes of this section, the term —
(1) “authorized entity” means a nonprofit organization
or a governmental agency that has a primary mission to provide specialized
services relating to training, education, or adaptive reading or information
access needs of blind or other persons with disabilities;
(2) “blind or other persons with disabilities”
means individuals who are eligible or who may qualify in accordance with the
Act entitled “An Act to provide books for the adult blind”, approved
March 3, 1931 (2 U.S.C. 135a; 46 Stat. 1487) to receive books and other publications
produced in specialized formats; and
(3) “specialized formats” means braille, audio,
or digital text which is exclusively for use by blind or other persons with
disabilities.
(a) Secondary Transmissions of
Television Broadcast Stations by Satellite Carriers. — A
secondary transmission of a performance or display of a work embodied in a
primary transmission of a television broadcast station into the station's
local market shall be subject to statutory licensing under this section if —
(1) the secondary transmission is made by a satellite
carrier to the public;
(2) with regard to secondary transmissions, the satellite
carrier is in compliance with the rules, regulations, or authorizations of
the Federal Communications Commission governing the carriage of television
broadcast station signals; and
(3) the satellite carrier makes a direct or indirect
charge for the secondary transmission to —
(A) each subscriber receiving the secondary transmission;
or
(B) a distributor that has contracted with the satellite
carrier for direct or indirect delivery of the secondary transmission to the
public.
(b) Reporting Requirements. —
(1) Initial lists. — A
satellite carrier that makes secondary transmissions of a primary transmission
made by a network station under subsection (a) shall, within 90 days after
commencing such secondary transmissions, submit to the network that owns or
is affiliated with the network station a list identifying (by name in alphabetical
order and street address, including county and zip code) all subscribers to
which the satellite carrier makes secondary transmissions of that primary
transmission under subsection (a).
(2) Subsequent lists. — After
the list is submitted under paragraph (1), the satellite carrier shall, on
the 15th of each month, submit to the network a list identifying (by name
in alphabetical order and street address, including county and zip code) any
subscribers who have been added or dropped as subscribers since the last submission
under this subsection.
(3) Use of subscriber information. — Subscriber
information submitted by a satellite carrier under this subsection may be
used only for the purposes of monitoring compliance by the satellite carrier
with this section.
(4) Requirements of networks. — The
submission requirements of this subsection shall apply to a satellite carrier
only if the network to which the submissions are to be made places on file
with the Register of Copyrights a document identifying the name and address
of the person to whom such submissions are to be made. The Register of Copyrights
shall maintain for public inspection a file of all such documents.
(c) No Royalty Fee Required. — A
satellite carrier whose secondary transmissions are subject to statutory licensing
under subsection (a) shall have no royalty obligation for such secondary transmissions.
(d) Noncompliance with Reporting
and Regulatory Requirements. — Notwithstanding subsection
(a), the willful or repeated secondary transmission to the public by a satellite
carrier into the local market of a television broadcast station of a primary
transmission embodying a performance or display of a work made by that television
broadcast station is actionable as an act of infringement under section
501, and is fully subject to the remedies provided under sections
502 through 506 and 509,
if the satellite carrier has not complied with the reporting requirements
of subsection (b) or with the rules, regulations, and authorizations of the
Federal Communications Commission concerning the carriage of television broadcast
signals.
(e) Willful Alterations. — Notwithstanding
subsection (a), the secondary transmission to the public by a satellite carrier
into the local market of a television broadcast station of a performance or
display of a work embodied in a primary transmission made by that television
broadcast station is actionable as an act of infringement under section
501, and is fully subject to the remedies provided by sections
502 through 506 and sections
509 and 510, if the content of the particular
program in which the performance or display is embodied, or any commercial
advertising or station announcement transmitted by the primary transmitter
during, or immediately before or after, the transmission of such program,
is in any way willfully altered by the satellite carrier through changes,
deletions, or additions, or is combined with programming from any other broadcast
signal.
(f) Violation of Territorial
Restrictions on Statutory License for Television Broadcast Stations. —
(1) Individual violations. — The
willful or repeated secondary transmission to the public by a satellite carrier
of a primary transmission embodying a performance or display of a work made
by a television broadcast station to a subscriber who does not reside in that
station's local market, and is not subject to statutory licensing under section
119 or a private licensing agreement, is actionable as an act of infringement
under section 501 and is fully subject to the
remedies provided by sections 502 through 506
and 509, except that —
(A) no damages shall be awarded for such act of infringement
if the satellite carrier took corrective action by promptly withdrawing service
from the ineligible subscriber; and
(B) any statutory damages shall not exceed $5 for such
subscriber for each month during which the violation occurred.
(2) Pattern of violations. — If
a satellite carrier engages in a willful or repeated pattern or practice of
secondarily transmitting to the public a primary transmission embodying a
performance or display of a work made by a television broadcast station to
subscribers who do not reside in that station's local market, and are not
subject to statutory licensing under section 119
or a private licensing agreement, then in addition to the remedies under paragraph
(1) —
(A) if the pattern or practice has been carried out on
a substantially nationwide basis, the court —
(i) shall order a permanent injunction barring the secondary
transmission by the satellite carrier of the primary transmissions of that
television broadcast station (and if such television broadcast station is
a network station, all other television broadcast stations affiliated with
such network); and
(ii) may order statutory damages not exceeding $250,000
for each 6-month period during which the pattern or practice was carried out;
and
(B) if the pattern or practice has been carried out on
a local or regional basis with respect to more than one television broadcast
station, the court —
(i) shall order a permanent injunction barring the secondary
transmission in that locality or region by the satellite carrier of the primary
transmissions of any television broadcast station; and
(ii) may order statutory damages not exceeding $250,000
for each 6-month period during which the pattern or practice was carried out.
(g) Burden of Proof. — In
any action brought under subsection (f), the satellite carrier shall have
the burden of proving that its secondary transmission of a primary transmission
by a television broadcast station is made only to subscribers located within
that station's local market or subscribers being served in compliance with
section 119 or a private licensing agreement.
(h) Geographic Limitations on
Secondary Transmissions. — The statutory license created
by this section shall apply to secondary transmissions to locations in the
United States.
(i) Exclusivity with Respect
to Secondary Transmissions of Broadcast Stations by Satellite to Members of
the Public. — No provision of section
111 or any other law (other than this section and section
119) shall be construed to contain any authorization, exemption, or license
through which secondary transmissions by satellite carriers of programming
contained in a primary transmission made by a television broadcast station
may be made without obtaining the consent of the copyright owner.
(j) Definitions. — In
this section —
(1) Distributor. — The
term “distributor” means an entity which contracts to distribute
secondary transmissions from a satellite carrier and, either as a single channel
or in a package with other programming, provides the secondary transmission
either directly to individual subscribers or indirectly through other program
distribution entities.
(2) Local market. —
(A) In general. — The
term “local market”, in the case of both commercial and noncommercial
television broadcast stations, means the designated market area in which a
station is located, and —
(i) in the case of a commercial television broadcast
station, all commercial television broadcast stations licensed to a community
within the same designated market area are within the same local market; and
(ii) in the case of a noncommercial educational television
broadcast station, the market includes any station that is licensed to a community
within the same designated market area as the noncommercial educational television
broadcast station.
(B) County of license. — In
addition to the area described in subparagraph (A), a station's local market
includes the county in which the station's community of license is located.
(C) Designated market area. — For
purposes of subparagraph (A), the term “designated market area”
means a designated market area, as determined by Nielsen Media Research and
published in the 1999–2000 Nielsen Station Index Directory and Nielsen
Station Index United States Television Household Estimates or any successor
publication.
(3) Network station; satellite
carrier; secondary transmission. — The terms “network
station”, “satellite carrier”, and “secondary transmission”
have the meanings given such terms under section
119(d).
(4) Subscriber. — The
term “subscriber” means a person who receives a secondary transmission
service from a satellite carrier and pays a fee for the service, directly
or indirectly, to the satellite carrier or to a distributor.
(5) Television broadcast station. — The
term “television broadcast station” —
(A) means an over-the-air, commercial or noncommercial
television broadcast station licensed by the Federal Communications Commission
under subpart E of part 73 of title 47, Code of Federal Regulations, except
that such term does not include a low-power or translator television station;
and
(B) includes a television broadcast station licensed by
an appropriate governmental authority of Canada or Mexico if the station broadcasts
primarily in the English language and is a network station as defined in section
119(d)(2)(A).
1In 1980, section
117 was amended in its entirety with an amendment in the nature of a substitute
that included a new title. However, the table of sections was not changed
to reflect the new title. Pub. L. No. 96-517, 94 Stat. 3015, 3028. In 1997,
a technical amendment made that change. Pub. L. No. 105-80, 111 Stat. 1529,
1534.
2The Audio Home Recording Act of
1992 amended section 101 by inserting “Except
as otherwise provided in this title,” at the beginning of the first sentence.
Pub. L. No. 102-563, 106 Stat. 4237, 4248.
The Berne Convention Implementation Act of 1988 amended section
101 by adding a definition for “Berne Convention work.” Pub. L. No. 100-568,
102 Stat. 2853, 2854. In 1990, the Architectural Works Copyright Protection
Act amended the definition of “Berne Convention work” by adding paragraph
(5). Pub. L. No. 101-650, 104 Stat. 5089, 5133. The WIPO Copyright and Performances
and Phonograms Treaties Implementation Act of 1998 deleted the definition
of “Berne Convention work” from section 101. Pub. L. No. 105-304, 112 Stat.
2860, 2861. The definition of “Berne Convention work,” as deleted, is contained
in part VI of the Appendix.
3In 1990, the Architectural Works
Copyright Protection Act amended section 101
by adding the definition for “architectural work.” Pub. L. No. 101-650, 104
Stat. 5089, 5133. That Act states that the definition is applicable to “any
architectural work that, on the date of the enactment of this Act, is unconstructed
and embodied in unpublished plans or drawings, except that protection for
such architectural work under title 17, United States Code, by virtue of the
amendments made by this title, shall terminate on December 31, 2002, unless
the work is constructed by that date.”
4The Berne Convention Implementation
Act of 1988 amended section 101 by adding the
definition of “Berne Convention.” Pub. L. No. 100-568, 102 Stat. 2853, 2854.
5In 1980, the definition
of “computer program” was added to section
101. Pub. L. No. 96-517, 94 Stat. 3015, 3028. The Intellectual Property
and High Technology Technical Amendments Act of 2002 amended section 101 by
moving the definition for computer program from the end of section 101 to
be in alphabetical order, after “compilation.” Pub. L. No. 107-273,
116 Stat. 1758, 1909.
6The Digital Performance Right in
Sound Recordings Act of 1995 amended section 101
by adding the definition of “digital transmission.” Pub. L. No.104-39, 109
Stat. 336, 348.
7The Fairness in Music Licensing
Act of 1998 amended section 101 by adding the
definition of “establishment.” Pub. L. No. 105-298, 112 Stat. 2827, 2833.
8The Fairness in Music
Licensing Act of 1998 amended section 101 by
adding the definition of “food service or drinking establishment.” Pub. L.
No. 105-298, 112 Stat. 2827, 2833.
9In 1997, the No Electronic
Theft (NET) Act amended section 101 by adding
the definition for “financial gain.” Pub. L. No. 105-147, 111 Stat. 2678.
10The WIPO Copyright
and Performances and Phonograms Treaties Implementation Act of 1998 amended
section 101 by adding the definition of “Geneva
Phonograms Convention.” Pub. L. No. 105-304, 112 Stat. 2860, 2861.
11The Fairness in Music
Licensing Act of 1998 amended section 101 by
adding the definition of “gross square feet of space.” Pub. L. No. 105-298,
112 Stat. 2827, 2833.
12The WIPO Copyright
and Performances and Phonograms Treaties Implementation Act of 1998 requires
that paragraph (5) of the definition of “international agreement” take effect
upon entry into force of the WIPO Copyright Treaty with respect to the United
States. Pub. L. No. 105-304, 112 Stat. 2860, 2877.
13The WIPO Copyright
and Performances and Phonograms Treaties Implementation Act of 1998 requires
that paragraph (6) of the definition of “international agreement” take effect
upon entry into force of the WIPO Performances and Phonograms Treaty with
respect to the United States. Pub. L. No. 105-304, 112 Stat. 2860, 2877.
14The WIPO Copyright
and Performances and Phonograms Treaties Implementation Act of 1998 amended
section 101 by adding the definition of “international
agreement.” Pub. L. No. 105-304, 112 Stat. 2860, 2861.
15The Fairness in Music
Licensing Act of 1998 amended section 101 by
adding the definition of “performing rights society.” Pub. L. No. 105-298,
112 Stat. 2827, 2833.
16The Berne Convention
Implementation Act of 1988 amended the definition of “Pictorial, graphic,
and sculptural works” by inserting “diagrams, models, and technical drawings,
including architectural plans” in the first sentence, in lieu of “technical
drawings, diagrams, and models.” Pub. L. No. 100-568, 102 Stat. 2853, 2854.
17The Fairness in Music
Licensing Act of 1998 amended section 101 by
adding the definition of “proprietor.” Pub. L. No. 105-298, 112 Stat. 2827,
2833. In 1999, a technical amendment added the phrase “For purposes of section
513,”, to the beginning of the definition of “proprietor.” Pub. L. No. 106-44,
113 Stat. 221, 222.
18The Copyright Renewal
Act of 1992 amended section 101 by adding the
definition of “registration.” Pub. L. No. 102-307, 106 Stat. 264, 266.
19The WIPO Copyright
and Performances and Phonograms Treaties Implementation Act of 1998 amended
section 101 by adding the definition of “treaty
party.” Pub. L. No. 105-304, 112 Stat. 2860, 2861.
20The Berne Convention
Implementation Act of 1988 amended section 101
by adding the definition of “country of origin” of a Berne Convention work,
for purposes of section 411. Pub. L. No. 100-568,
102 Stat. 2853, 2854. The WIPO Copyright and Performances and Phonograms Treaties
Implementation Act of 1998 amended that definition by changing it to a definition
for “United States work,” for purposes of section 411. Pub. L. No. 105-304,
112 Stat. 2860, 2861. In 1999, a technical amendment moved the definition
of “United States work” to place it in alphabetical order, after the definition
for “United States.” Pub. L. No. 106-44, 113 Stat. 221, 222.
21The WIPO Copyright
and Performances and Phonograms Treaties Implementation Act of 1998 amended
section 101 by adding the definition of “WIPO
Copyright Treaty.” Pub. L. No. 105-304, 112 Stat. 2860, 2861. That definition
is required to take effect upon entry into force of the WIPO Copyright Treaty
with respect to the United States. Pub. L. No. 105-304, 112 Stat. 2860, 2877.
22The WIPO Copyright
and Performances and Phonograms Treaties Implementation Act of 1998 amended
section 101 by adding the definition of “WIPO
Performances and Phonograms Treaty.” Pub. L. No. 105-304, 112 Stat. 2860,
2862. That definition is required to take effect upon entry into force of
the WIPO Performances and Phonograms Treaty with respect to the United States.
Pub. L. No. 105-304, 112 Stat. 2860, 2877.
23The Visual Artists
Rights Act of 1990 amended section 101 by adding
the definition of “work of visual art.” Pub. L. No. 101-650, 104 Stat. 5089,
5128.
24The Satellite Home
Viewer Improvement Act of 1999 amended the definition of “a work made for
hire” by inserting “as a sound recording” after “audiovisual work.” Pub. L.
No. 106-113, 113 Stat. 1501, app. I at 1501A-544. The Work Made for Hire and
Copyright Corrections Act of 2000 amended the definition of “work made for
hire” by deleting “as a sound recording” after “audiovisual work.” Pub. L.
No. 106-379, 114 Stat. 1444. The Act also added a second paragraph to part
(2) of that definition. Id. These changes are effective retroactively,
as of November 29, 1999.
25The WIPO Copyright
and Performances and Phonograms Treaties Implementation Act of 1998 amended
section 101 by adding the definitions of “WTO
Agreement” and “WTO member country,” thereby transferring those definitions
to section 101 from section 104A. Pub. L.
No. 105-304, 112 Stat. 2860, 2862. See also endnote
29, infra.
26In 1990, the Architectural Works
Copyright Protection Act amended subsection 102(a) by adding at the end thereof
paragraph (8). Pub. L. No. 101-650, 104 Stat. 5089, 5133.
27The Berne Convention Implementation
Act of 1988 amended section 104(b) by redesignating
paragraph (4) as paragraph (5), by inserting after paragraph (3) a new paragraph
(4) and by adding subsection (c) at the end. Pub. L. No. 100-568, 102 Stat.
2853, 2855. The WIPO Copyright and Performances and Phonograms Treaties Implementation
Act of 1998 amended section 104 as follows: 1) by amending subsection (b)
to redesignate paragraphs (3) and (5) as (5) and (6), respectively, and by
adding a new paragraph (3); 2) by amending section 104(b), throughout; and
3) by adding section 104(d). Pub. L. No. 105-304, 112 Stat. 2860, 2862.
28The WIPO Copyright and Performances
and Phonograms Treaties Implementation Act of 1998 requires that subsection
(d), regarding the effect of phonograms treaties, take effect upon entry into
force of the WIPO Performances and Phonograms Treaty with respect to the United
States. Pub. L. No. 105-304, 112 Stat. 2860, 2877.
29In 1993, the North American Free
Trade Agreement Implementation Act added section
104A. Pub. L. No. 103-182, 107 Stat. 2057, 2115. In 1994, the Uruguay
Round Agreements Act amended section 104A in its entirety with an amendment
in the nature of a substitute. Pub. L. No. 103-465, 108 Stat. 4809, 4976.
On November 13, 1997, Section 104A was amended by replacing subsection (d)(3)(A),
by striking the last sentence of subsection (e)(1)(B)(ii) and by rewriting
paragraphs (2) and (3) of subsection (h). Pub. L. No. 105-80, 111 Stat. 1529,
1530. The WIPO Copyright and Performances and Phonograms Treaties Implementation
Act of 1998 amended section 104A by rewriting paragraphs (1) and (3) of subsection
(h); by adding subparagraph (E) to subsection (h)(6); and by amending subsection
(h)(8)(B)(i). Pub. L. No. 105-304, 112 Stat. 2860, 2862. That act also deleted
paragraph (9), thereby transferring the definitions for “WTO Agreement” and “WTO member country” from section 104A to section 101. Pub. L. No. 105-304,
112 Stat. 2860, 2863. See also endnote 25,
supra.
30The WIPO Copyright and Performances
and Phonograms Treaties Implementation Act of 1998 requires that subparagraph
(C) of the definition of “date of adherence or proclamation” take effect upon
entry into force of the WIPO Copyright Treaty with respect to the United States.
Pub. L. No. 105-304, 112 Stat. 2860, 2877.
31The WIPO Copyright and Performances
and Phonograms Treaties Implementation Act of 1998 requires that subparagraph
(D) of the definition of “date of adherence or proclamation” take effect upon
entry into force of the WIPO Performances and Phonograms Treaty with respect
to the United States. Pub. L. No. 105-304, 112 Stat. 2860, 2877.
32The WIPO Copyright and Performances
and Phonograms Treaties Implementation Act of 1998 requires that subparagraph
(C) of the definition of “eligible country” take effect upon entry into force
of the WIPO Copyright Treaty with respect to the United States. Pub. L. No.
105-304, 112 Stat. 2860, 2877.
33The WIPO Copyright and Performances
and Phonograms Treaties Implementation Act of 1998 requires that subparagraph
(D) of the definition of “eligible country” take effect upon entry into force
of the WIPO Performance and Phonograms Treaty with respect to the United States.
Pub. L. No. 105-304, 112 Stat. 2860, 2877.
34The WIPO Copyright and Performances
and Phonograms Treaties Implementation Act of 1998 requires that subparagraph
(E) of the definition of “restored work” take effect upon entry into force
of the WIPO Performances and Phonograms Treaty with respect to the United
States. Pub. L. No. 105-304, 112 Stat. 2860, 2877.
35In 1968, the Standard Reference
Data Act provided an exception to Section 105,
Pub. L. No. 90-396, 82 Stat. 339. Section 6 of that act amended title 15 of
the United States Code by authorizing the Secretary of Commerce, at
15 U.S.C. 290e, to secure copyright and renewal thereof on behalf of the United
States as author or proprietor “in all or any part of any standard reference
data which he prepares or makes available under this chapter,” and to “authorize
the reproduction and publication thereof by others.” See also section 105(f)
of the Transitional and Supplementary Provisions of the Copyright Act of 1976,
in Part I of the Appendix. Pub. L. No. 94-553, 90
Stat. 2541.
36The Digital Performance Right
in Sound Recordings Act of 1995 amended section
106 by adding paragraph (6). Pub. L. No. 104-39, 109 Stat. 336. In 1999,
a technical amendment substituted “121” for “120.” Pub. L. No. 106-44, 113
Stat. 221, 222. The Intellectual Property and High Technology Technical Amendments
Act of 2002 amended section 106 by substituting sections “107 through
122” for “107 through 121.” Pub. L. No. 107-273, 116 Stat.
1758, 1909.
37The Visual Artists Rights Act
of 1990 added section 106A. Pub. L. No. 101-650,
104 Stat. 5089, 5128. The Act states that, generally, section 106A is to take
effect six months after the date of its enactment, that is, six months after
December 1, 1990, and that the rights created by section 106A shall apply
to (1) works created before such effective date but title to which has not,
as of such effective date, been transferred from the author and (2) works
created on or after such effective date, but shall not apply to any destruction,
distortion, mutilation or other modification (as described in section 106A(a)(3))
of any work which occurred before such effective date. See also, endnote
3, chapter 3.
38The Visual Artists Rights Act
of 1990 amended section 107 by adding the reference
to section 106A. Pub. L. No. 101-650, 104 Stat. 5089, 5132. In 1992, section
107 was also amended to add the last sentence. Pub. L. No. 102-492, 106 Stat.
3145.
39The Copyright Amendments Act
of 1992 amended section 108 by repealing subsection
(i) in its entirety. Pub. L. No. 102-307, 106 Stat. 264, 272. In 1998, the
Sonny Bono Copyright Term Extension Act amended section 108 by redesignating
subsection (h) as (i) and adding a new subsection (h). Pub. L. No. 105-298,
112 Stat. 2827, 2829. Also in 1998, the Digital Millennium Copyright Act amended
section 108 by making changes in subsections (a), (b) and (c). Pub. L. No.
105-304, 112 Stat. 2860, 2889.
40The Record Rental Amendment of
1984 amended section 109 by redesignating subsections
(b) and (c) as subsections (c) and (d), respectively, and by inserting a new
subsection (b) after subsection (a). Pub. L. No. 98-450, 98 Stat. 1727. Section
4(b) of the Act states that the provisions of section 109(b), as added by
section 2 of the Act, “shall not affect the right of an owner of a particular
phonorecord of a sound recording, who acquired such ownership before [October
4, 1984], to dispose of the possession of that particular phonorecord on or
after such date of enactment in any manner permitted by section 109 of title
17, United States Code, as in effect on the day before the date of the enactment
of this Act.” Pub. L. No. 98-450, 98 Stat. 1727, 1728. Section 4(c) of the
Act also states that the amendments “shall not apply to rentals, leasings,
lendings (or acts or practices in the nature of rentals, leasings, or lendings)
occurring after the date which is 13 years after [October 4, 1984]” In 1988,
the Record Rental Amendment Act of 1984 was amended to extend the time period
in section 4(c) from 5 years to 13 years. Pub. L. No. 100-617, 102 Stat. 3194.
In 1993, the North American Free Trade Agreement Implementation Act repealed
section 4(c) of the Record Rental Amendment of 1984. Pub. L. No. 103-182,
107 Stat. 2057, 2114. Also in 1988, technical amendments to section 109(d)
inserted “(c)” in lieu of “(b)” and substituted “copyright” in lieu of “coyright”
Pub. L. No. 100-617, 102 Stat. 3194.
The Computer Software Rental Amendments Act of 1990 amended
section 109(b) as follows: 1) paragraphs (2)
and (3) were redesignated as paragraphs (3) and (4), respectively; 2) paragraph
(1) was struck out and new paragraphs (1) and (2) were inserted in lieu thereof;
and 3) paragraph (4), as redesignated, was amended in its entirety with a
new paragraph (4) inserted in lieu thereof. Pub. L. No. 101-650, 104 Stat.
5089, 5134. The Act states that section 109(b), as amended, “shall not affect
the right of a person in possession of a particular copy of a computer program,
who acquired such copy before the date of the enactment of this Act, to dispose
of the possession of that copy on or after such date of enactment in any manner
permitted by section 109 of title 17, United States Code, as in effect on
the day before such date of enactment.” The Act also states that the amendments
made to section 109(b) “shall not apply to rentals, leasings, or lendings
(or acts or practices in the nature of rentals, leasings, or lendings) occurring
on or after October 1, 1997.” However, this limitation, which is set forth
in the first sentence of section 804 (c) of the Computer Software Rental Amendments
Act of 1990, at 104 Stat. 5136, was subsequently deleted in 1994 by the Uruguay
Round Agreements Act. Pub. L. No. 103-465, 108 Stat. 4809, 4974.
The Computer Software Rental Amendments Act of 1990 also amended
section 109 by adding at the end thereof subsection
(e). Pub. L. No. 101-650, 104 Stat. 5089, 5135. That Act states that the provisions
contained in the new subsection (e) shall take effect 1 year after the date
of enactment of such Act, that is, one year after December 1, 1990. The Act
also states that such amendments so made “shall not apply to public performances
or displays that occur on or after October 1, 1995.”
In 1994, the Uruguay Round Agreements Act amended section
109(a) by adding the second sentence, which begins with “Notwithstanding
the preceding sentence.” Pub. L. No. 103-465, 108 Stat. 4809, 4981.
41In 1988, the Extension of Record
Rental Amendment amended section 110 by adding
paragraph (10). Pub. L. No. 97-366, 96 Stat. 1759. In 1997, the Technical
Corrections to the Satellite Home Viewer Act amended section 110 by inserting
a semicolon in lieu of the period at the end of paragraph (8); by inserting “; and” in lieu of the period at the end of paragraph (9); and by inserting “(4)” in lieu of “4 above” in paragraph (10). Pub. L. No. 105-80, 111 Stat.
1529, 1534. The Fairness in Music Licensing Act of 1998 amended section 110,
in paragraph 5, by adding subparagraph (B) and by making conforming amendments
to subparagraph (A); by adding the phrase “or of the audiovisual or other
devices utilized in such performance” to paragraph 7; and by adding the last
paragraph to section 110 that begins “The exemptions provided under paragraph
(5).” Pub. L. No. 105-298, 112 Stat. 2827, 2830. In 1999, a technical amendment
made corrections to conform paragraph designations that were affected by amendments
previously made by the Fairness in Music Licensing Act of 1998. Pub. L. No.
106-44, 113 Stat. 221. The Technology, Education, and Copyright Harmonization
Act of 2002 amended section 110 by substituting new language for paragraph
110(2) and by adding all the language at the end of section 110 that concerns
paragraph 110(2). Pub. L. No. 107-273, 116 Stat. 1758, 1910.
42In 1986, section
111(d) was amended by striking out paragraph (1) and by redesignating
paragraphs (2), (3), (4) and (5) as paragraphs (1), (2), (3) and (4), respectively.
Pub. L. 99-397, 100 Stat. 848. Also, in 1986, section 111(f) was amended by
substituting “subsection (d)(1)” for “subsection (d)(2)” in the last sentence
of the definition of “secondary transmission” and by adding a new sentence
after the first sentence in the definition of “local service area of a primary
transmitter.” Pub. L. No. 99-397, 100 Stat. 848.
The Satellite Home Viewer Act of 1988 amended subsection
111(a) by striking “or” at the end of paragraph (3), by redesignating
paragraph (4) as paragraph (5) and by inserting a new paragraph (4). Pub.
L. No. 100-667, 102 Stat. 3935, 3949. That Act also amended section (d)(1)(A)
by adding the second sentence which begins with “In determining the total
number.” Id.
The Copyright Royalty Tribunal Reform Act of 1993 amended section
111(d) by substituting “Librarian of Congress” for “Copyright Royalty
Tribunal” where appropriate, by inserting a new sentence in lieu of the second
and third sentences of paragraph (2) and, in paragraph (4), by amending subparagraph
(B) in its entirety with substitute language. Pub. L. No. 103-198, 107 Stat.
2304, 2311.
The Satellite Home Viewer Act of 1994 amended section
111(f) by inserting “microwave” after “wires, cables,” in the paragraph
relating to the definition of “cable system” and by inserting new matter after “April 15, 1976,” in the paragraph relating to the definition of “local service
area of a primary transmitter.” Pub. L. No. 103-369, 108 Stat. 3477, 3480.
That Act provides that the amendment “relating to the definition of the local
service area of a primary transmitter, shall take effect on July 1, 1994.”
Id.
In 1995, the Digital Performance in Sound Recordings Act amended
section 111(c)(1) by inserting “and section
114(d)” in the first sentence, after “of this subsection.” Pub. L. No. 104-39,
109 Stat. 336, 348.
The Satellite Home Viewer Improvement Act of 1999 amended section
111 by substituting “statutory” for “compulsory” and “programming” for “programing,” wherever they appeared. Pub. L. No. 106-113, 113 Stat. 1501,
app. I at 1501A-543. The Act also amended sections 111(a) and (b) by inserting “performance or display of a work embodied in a primary transmission” in lieu
of “primary transmission embodying a performance or display of a work.” It
amended paragraph (1) of section 111(c) by inserting “a performance or display
of a work embodied in” after “by a cable system of” and by striking “and embodying
a performance or display of a work.” It amended subparagraphs (3) and (4)
of section 111(a) by inserting “a performance or display of a work embodied
in a primary transmission” in lieu of “a primary transmission” and by striking “and embodying a performance or display of a work.” Id.
43Royalty rates specified by the
compulsory licensing provisions of this section are subject to adjustment
by copyright arbitration royalty panels appointed and convened by the Librarian
of Congress in accordance with the provisions of Chapter
8 of title 17 of the United States Code, as amended by the Copyright
Royalty Tribunal Reform Act of 1993, Pub. L. No. 103-198, 107 Stat. 2304,
2311.
44In 1998, the Digital Millennium
Copyright Act amended section 112 by redesignating
subsection (a) as subsection (a)(1); by redesignating former sections (a)(1),
(a)(2) and (a)(3) as subsections (a)(1)(A), (a)(1)(B) and (a)(1)(C), respectively;
by adding subsection (a)(2); and by amending the language in new subsection
(a)(1). Pub. L. No. 105-304, 112 Stat. 2860, 2888. The Digital Millennium
Copyright Act also amended section 112 by redesignating subsection (e) as
subsection (f) and adding a new subsection (e). Pub. L. No. 105-304, 112 Stat.
2860, 2899. In 1999, a technical amendment to section 112(e) redesignated
paragraphs (3) through (10) as (2) through (9) and corrected the paragraph
references throughout that section to conform to those redesignations. Pub.
L. No. 106-44, 113 Stat. 221. Stat. 221. The Technology, Education, and Copyright
Harmonization Act of 2002 amended section 112 by redesignating subsection
112(f) as 112(g) and adding a new paragraph (f). Pub. L. No. 107-273, 116
Stat. 1758, 1912.
45The Visual Artists Rights Act
of 1990 amended section 113 by adding subsection
(d) at the end thereof. Pub. L. No. 101-650, 104 Stat. 5089, 5130.
46The Digital Performance Right
in Sound Recordings Act of 1995 amended section
114 as follows: 1) in subsection (a), by striking “and (3)” and inserting
in lieu thereof “(3) and (6)”; 2) in subsection (b) in the first sentence,
by striking “phonorecords, or of copies of motion pictures and other audiovisual
works,” and inserting “phonorecords or copies”; and 3) by striking subsection
(d) and inserting in lieu thereof new subsections (d), (e), (f), (g), (h),
(i), and (j). Pub. L. No. 104-39, 109 Stat. 336. In 1997, subsection 114(f)
was amended by inserting all the text that appears after “December 31, 2000”
(which is now December 31, 2001, in paragraph (1)(A)) and by striking “and
publish in the Federal Register.” Pub. L. No. 105-80, 111 Stat. 1529, 1531.
In 1998, the Digital Millennium Copyright Act amended section
114(d) by replacing paragraphs (1)(A) and (2) with amendments in the nature
of substitutes. Pub. L. No. 105-304, 112 Stat. 2860, 2890. That Act also amended
section 114(f) by revising the title; by redesignating paragraph (1) as paragraph
(1)(A); by adding paragraph (1)(B) in lieu of paragraphs (2), (3), (4) and
(5); and by amending the language in newly designated paragraph (1)(A), including
revising the effective date from December 31, 2000, to December 31, 2001.
Pub. L. No. 105-304, 112 Stat. 2860, 2894. The Digital Millennium Copyright
Act also amended subsection 114(g) by substituting “transmission” in lieu
of “subscription transmission,” wherever it appears and, in the first sentence
in paragraph (g)(1), by substituting “transmission licensed under a statutory
license” in lieu of “subscription transmission licensed.” Pub. L. No. 105-304,
112 Stat. 2860, 2897. That Act also amended subsection 114(j) by redesignating
paragraphs (2), (3), (5), (6), (7) and (8) as (3), (5), (9), (12), (13) and
(14), respectively; by amending paragraphs (4) and (9) in their entirety and
resdesignating them as paragraphs (7) and (15), respectively; and by adding
new definitions, including, paragraph (2) defining “archived program,” paragraph
(4) defining “continuous program,” paragraph (6) defining “eligible nonsubscription
transmission,” paragraph (8) defining “new subscription service,” paragraph
(10) defining “preexisting satellite digital audio radio service” and paragraph
(11) defining “preexisting subscription service.” Pub. L. No. 105-304, 112
Stat. 2860, 2897.
The Small Webcaster Settlement Act of 2002 amended section
114 by adding paragraph (5) to subsection 114(f), by amending paragraph 114(g)(2)
and by adding paragraph 114(g)(3). Pub. L. No. 107-321, 116 Stat. 2780, 2781,
and 2784.
47The Digital Millennium Copyright
Act states that “the publication of notice of proceedings under section
114(f)(1) . . . as in effect upon the effective date of [the Digital Performance
Right in Sound Recordings Act of 1995, Pub. L. No. 104-39, 109 Stat. 336],
for the determination of royalty payments shall be deemed to have been made
for the period beginning on the effective date of that Act and ending on December
1, 2001.” Pub. L. No. 105-304, 112 Stat. 2860, 2899.
48The Digital Millennium Copyright
Act contains an additional effective date provision for the amendment that
changed the date in subsection 114(f)(1)(A)
to December 31, 2001. This provision is paragraph 405(a)(5) of the Digital
Millennium Copyright Act, which is in Appendix V
of this publication.
49The Record Rental Amendment of
1984 amended section 115 by redesignating paragraphs
(3) and (4) of subsection (c) as paragraphs (4) and (5), respectively, and
by adding a new paragraph (3). Pub. L. No. 98-450, 98 Stat. 1727.
In 1997, section 115 was amended
by striking “and publish in the Federal Register” in subparagraph 115(c)(3)(D).
Pub. L. No. 105-80, 111 Stat. 1529, 1531. The same legislation also amended
section 115(c)(3)(E) by replacing the phrases “sections 106(1) and (3)” and “sections 106(1) and 106(3)” with “paragraphs (1) and (3) of section 106.”
Pub. L. No. 105-80, 111 Stat. 1529, 1534.
The Digital Performance Right in Sound Recordings Act of 1995
amended section 115 as follows: 1) in the first
sentence of subsection (a)(1), by striking “any other person” and inserting
in lieu thereof “any other person, including those who make phonorecords or
digital phonorecord deliveries,”; 2) in the second sentence of the same subsection,
by inserting before the period “including by means of a digital phonorecord
delivery”; 3) in the second sentence of subsection (c)(2), by inserting “and
other than as provided in paragraph (3),” after “For this purpose,”; 4) by
redesignating paragraphs (3), (4) and (5) of subsection (c) as paragraphs
(4), (5) and (6), respectively, and by inserting after paragraph (2) a new
paragraph (3); and (5) by adding after subsection (c) a new subsection (d).
Pub. L. No. 104-39, 109 Stat. 336, 344.
50Royalty rates specified by the
compulsory licensing provisions of this section are subject to adjustment
by copyright arbitration royalty panels appointed and convened by the Librarian
of Congress in accordance with the provisions of Chapter
8 of title 17 of the United States Code, as amended by the Copyright
Royalty Tribunal Reform Act of 1993. Pub. L. No. 103-198, 107 Stat. 2304.
51Pursuant to this subsection and
section 803(a)(3) of title 17, the current
rates have been established by regulation and may be found at 37 C.F.R. 255.
52The Berne Convention Implementation
Act of 1988 added section 116A. Pub. L. No.
100-568, 102 Stat. 2853, 2855. The Copyright Royalty Tribunal Reform Act of
1993 redesignated section 116A as section 116;
repealed the preexisting section 116; in the redesignated section 116, struck
subsections (b), (e), (f) and (g), and redesignated subsections (c) and (d)
as subsections (b) and (c), respectively; and substituted, where appropriate, “Librarian of Congress” or “copyright arbitration royalty panel” for “Copyright
Royalty Tribunal.” Pub. L. No. 103-198, 107 Stat. 2304, 2309. In 1997, section
116 was amended by rewriting subsection (b)(2) and by adding a new subsection
(d). Pub. L. No. 105-80, 111 Stat. 1529, 1531.
53In 1980, section
117 was amended in its entirety. Pub. L. No. 96-517, 94 Stat. 3015, 3028.
In 1998, the Computer Maintenance Competition Assurance Act amended section
117 by inserting headings for subsections (a) and (b) and by adding subsections
(c) and (d). Pub. L. No. 105-304, 112 Stat. 2860, 2887.
54The Copyright Royalty Tribunal
Reform Act of 1993 amended section 118 by striking
the first two sentences of subsection (b), by substituting a new first sentence
in paragraph (3) and by making general conforming amendments throughout. Pub.
L. 103-198, 107 Stat. 2304, 2309. In 1999, a technical amendment deleted paragraph
(2) from section 118(e). Pub. L. No. 106-44, 113 Stat. 221, 222. The Intellectual
Property and High Technology Technical Amendments Act of 2002 amended section
118 by deleting “to it” in the second sentence in subsection (b)(1).
Pub. L. No. 107-273, 116 Stat. 1758, 1909.
55The Satellite Home Viewer Act
of 1988 added section 119. Pub. L. No. 100-667,
102 Stat. 3935, 3949. The Copyright Royalty Tribunal Reform Act of 1993 amended
subsections (b) and (c) of section 119 by substituting “Librarian of Congress”
in lieu of “Copyright Royalty Tribunal” wherever it appeared and by making
related conforming amendments. Pub. L. No. 103-198, 107 Stat. 2304, 2310.
The Copyright Royalty Tribunal Reform Act of 1993 also amended paragraph (c)(3)
by deleting subparagraphs (B), (C), (E) and (F) and by redesignating subparagraph
(D) as (B), (G) as (C) and (H) as (D). The redesignated subparagraph (C) was
amended in its entirety and paragraph (c)(4) was deleted. Id.
The Satellite Home Viewer Act of 1994 further amended section
119. Pub. L. No. 103-369, 108 Stat. 3477. In 1997, technical corrections
and clarifications were made to the Satellite Home Viewer Act of 1994. Pub.
L. No. 105-80, 111 Stat. 1529. Those two acts amended section 119 as follows:
1) by deleting or replacing obsolete effective dates; 2) in subsection (a)(5),
by adding subparagraph (D); 3) in subsection (a), by adding paragraphs (8),
(9) and (10); 4) in subsection (b)(1)(B), by adjusting the royalty rate for
retransmitted superstations; 5) in subsection (c)(3), by replacing subparagraph
(B) with an amendment in the nature of a substitute; 6) in subsections (d)(2)
and (d)(6), by modifying the definition of “network station” and “satellite
carrier”; and 7) in subsection (d), by adding paragraph 11 to define “local
market.”
Pursuant to section 4 of the Satellite Home Viewer Act of 1994,
the changes made by that Act to section 119
of the United States Code ceased to be effective on December 31, 1999.
Pub. L. No. 103-369, 108 Stat. 3477, 3481. However, section 1003 of the Satellite
Home Viewer Improvement Act of 1999 extended that date to December 31, 2004.
Pub. L. No. 106-113, 113 Stat. 1501, app. I at 1501A-527.
The Digital Performance Right in Sound Recordings Act of 1995
amended section 119 in the first sentence of
subsections (a)(1) and (a)(2)(A), respectively, by inserting the words “and
section 114(d)” after “of this subsection.” Pub. L. No. 104-39, 109 Stat.
336, 348. In 1999, a technical amendment substituted “network station's” for “network's stations” in section 119(a)(8)(C)(ii). Pub. L. No. 106-44, 113
Stat. 221, 222.
The Satellite Home Viewer Improvement Act of 1999 amended section
119(a)(1) as follows: 1) by inserting “AND PBS SATELLITE FEED” after “SUPERSTATIONS”
in the paragraph heading; 2) by inserting “performance or display of a work
embodied in a primary transmission made by a superstation or by the Public
Broadcasting Service satellite feed” in lieu of “primary transmission made
by a superstation and embodying a performance or display of a work,” (see
endnote 55, infra) and 3) by adding the last sentence, which begins “In the case of the Public Broadcasting Service.” Pub. L. No. 106-113, 113
Stat. 1501, app. I at 1501A-530 and 543. The Act states that these amendments
shall be effective as of July 1, 1999, except for a portion of the second
item, starting with “performance or display” through “superstation.” Pub.
L. No. 106-113, 113 Stat. 1501, app. I at 1501A-544. The Act also amended
section 119(a) by inserting the phrase “with regard to secondary transmissions
the satellite carrier is in compliance with the rules, regulations, or authorization
of the Federal Communications Commission governing the carriage of television
broadcast stations signals” in paragraphs (1) and (2) and by inserting into
paragraph (2), “a performance or display of a work embodied in a primary transmission
made by a network station” in lieu of “programming contained in a primary
transmission made by a network station and embodying a performance or display
of a work.” Id. at 1501A-531 and 544. The Act amended section 119(a)(2)
by substituting new language for paragraph (B) and, in paragraph (C), by deleting “currently” after “the satellite carrier” near the end of the first sentence.
Id. at 1501A-528 and 544. It also amended section 119(a)(4) by inserting “a performance or display of a work embodied in” after “by a satellite carrier
of” and by deleting “and embodying a performance or display of a work.” Id.
at 1501A-544. The Satellite Home Viewer Improvement Act of 1999 further amended
section 119(a) by adding subparagraph (E) to paragraph (5). Id. at
1501A-528. It amended section 119(a)(6) by inserting “performance or display
of a work embodied in” after “by a satellite carrier of” and by deleting “and
embodying a performance or display of a work.” Id. The Act also amended
section 119(a) by adding paragraphs (11) and (12). Id. at 1501A-529
and 531.
The Satellite Home Viewer Improvement Act of 1999 amended section
119(b)(1) by inserting “or the Public Broadcasting Service satellite feed”
into subparagraph (B). (See endnote 60, infra.) Id. at 1501A-530.
The Act amended section 119(c) by adding a new paragraph (4). Id. at
1501A-527. The Act amended section 119(d) by substituting new language for
paragraphs (9) through (11) and by adding paragraph (12). Id. at 1501A-527,
530 and 531. The Act substituted new language for section 119(e). Id.
at 1501A-529.
The Intellectual Property and High Technology Technical Amendments
Act of 2002 amended section 119(a)(6) by substituting “of a performance”
for “of performance.” Pub. L. No. 107-273, 116 Stat. 1758, 1909.
The Act also amended section 119(b)(1)(A) by substituting “retransmitted”
and “retransmissions” for “transmitted” and “transmitted,”
respectively, in paragraph (1)(A). Id.
56The Satellite Home Viewer Improvement
Act of 1999 amended section 119(a)(1) by deleting
“primary transmission made by a superstation and embodying a performance
or display of a work” and inserting in its place “performance
or display of a work embodied in a primary transmission made by a superstation.”
Pub. L. No. 106-113, 113 Stat. 1501, app. I at 1501A-543. This amendatory
language did not take into account a prior amendment that had inserted “or
by the Public Broadcasting Service satellite feed” after “superstation”
into the phrase quoted above that was deleted. Pub. L. No. 106-113, 113 Stat.
1501, app. I at 1501A-530. There was no mention of the phrase “or by
the Public Broadcasting Service satellite feed” in that second amendment.
that second amendment. The Intellectual Property and High Technology Technical
Amendments Act of 2002 clarified these provisions. Pub. L. No. 107-273, 116
Stat. 1758, 1908. The Act deleted the first change and amended the second
to clarify that the amended language should read, “performance or display
of a work embodied in a primary transmission made by a superstation or by
the Public Broadcasting Service satellite feed.” Id.
57The Satellite Home Viewer Act
of 1994 states that “The provisions of section
119(a)(5)(D) . . . relating to the burden of proof of satellite carriers,
shall take effect on January 1, 1997, with respect to civil actions relating
to the eligibility of subscribers who subscribed to service as an unserved
household before the date of the enactment of this Act.” Pub. L. No. 103-369,
108 Stat. 3477, 3481.
58The Intellectual Property and
High Technology Technical Amendments Act of 2002 made a technical correction
to insert the word “a” before “performance.” Pub.
L. No. 107-273, 116 Stat. 1758, 1909.
59The Satellite Home Viewer Act
of 1994 states that “The provisions of section
119(a)(8)[,] . . . relating to transitional signal intensity measurements,
shall cease to be effective on December 31, 1996.” Pub. L. No. 103-369, 108
Stat. 3477, 3481.
60The Satellite Home Viewer Improvement
Act of 1999 stated that section 119(a), “as
amended by section 1005(e)” of the same Act, was amended to add a new
paragraph at the end of that subsection. Pub. L. No. 106-113, 113 Stat. 1501,
app. I at 1501A-531. The Intellectual Property and High Technology Technical
Amendments Act of 2002 made a technical correction to clarify that the amendment
was to section 119(a) as amended by “section 1005(d)” of the Satellite
Home Viewer Improvement Act of 1999 rather than “section 1005(e).”
Pub. L. No. 107-273, 116 Stat. 1758, 1908.
61The Intellectual Property and
High Technology Technical Amendments Act of 2002 made a technical correction
to the Satellite Home Viewer Improvement Act of 1999 (Pub. L. No. 106-113,
113 Stat. 1501, app. I at 1501A-531) to clarify that subpart 119(b)(1)(B)(ii)
was amended, not subpart 119(b)(1)(B)(iii). Pub. L. No. 107-273, 116 Stat.
1758, 1908.
62The Satellite Home Viewer Improvement
Act of 1999 states that section 119(c)(4) shall
be effective as of July 1, 1999. Pub. L. No. 106-113, 113 Stat. 1501, app.
I at 1501A-527.
63The Satellite Home Viewer Improvement
Act of 1999 states that section 119(c)(5) shall
be effective as of July 1, 1999. Pub. L. No. 106-113, 113 Stat. 1501, app.
I at 1501A-544.
64The Satellite Home Viewer Improvement
Act of 1999 states that section 119(d)(9) shall
be effective as of July 1, 1999. Pub. L. No. 106-113, 113 Stat. 1501, app.
I at 1501A-544.
65The Satellite Home Viewer Improvement
Act of 1999 states that section 119(d)(12)
shall be effective as of July 1, 1999. Pub. L. No. 106-113, 113 Stat. 1501,
app. I at 1501A-544.
6666. In 1990, the Architectural
Works Copyright Protection Act added section 120. Pub. L. No. 101-650, 104
Stat. 5089, 5133. The effective date provision of the Act states that its
amendments apply to any work created on or after the date it was enacted,
which was December 1, 1990. It also states that the amendments apply to “any
architectural work that, on [December 1, 1990], is unconstructed and embodied
in unpublished plans or drawings, except that protection for such architectural
work under title 17, United States Code, by virtue of the amendments made
by [the Act], shall terminate on December 31, 2002, unless the work is constructed
by that date.” Id., 104 Stat. 5089, 5134.
67The Legislative Branch Appropriations
Act, 1997, added section 121. Pub. L. No. 104-197,
110 Stat. 2394, 2416. The Work Made for Hire and Copyright Corrections Act
of 2000 amended section 121 by substituting “section 106” for “sections 106
and 710.” Pub. L. No. 106-379, 114 Stat. 1444, 1445.
68The Satellite Home Viewer Improvement
Act of 1999 added section 122. Pub. L. No.
106-113, 113 Stat. 1501, app. I at 1501A-523. The Act states that section
122 shall be effective as of November 29, 1999. Pub. L. No. 106-113, 113 Stat.
1501, app. I at 1501A-544.
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