Except as otherwise provided in this title, as used in
this title, the following terms and their variant forms
mean the following:
An “anonymous work” is a work on the copies
or phonorecords of which no natural person is identified
as author.
An “architectural work” is the design of a
building as embodied in any tangible medium of expression,
including a building, architectural plans, or drawings.
The work includes the overall form as well as the arrangement
and composition of spaces and elements in the design, but
does not include individual standard features.3
”Audiovisual works” are works that consist
of a series of related images which are intrinsically
intended to be shown by the use of machines or devices such
as projectors, viewers, or electronic equipment, together
with accompanying sounds, if any, regardless of the nature
of the material objects, such as films or tapes, in which
the works are embodied.
The “Berne Convention” is the Convention for
the Protection of Literary and Artistic Works, signed at
Berne, Switzerland, on September 9, 1886, and all acts,
protocols, and revisions thereto.4
The “best edition” of a work is the edition,
published in the United States at any time before the date
of deposit, that the Library of Congress determines to be
most suitable for its purposes.
A person's “children” are that person's immediate
offspring, whether legitimate or not, and any children legally
adopted by that person.
A “collective work” is a work, such as a periodical
issue, anthology, or encyclopedia, in which a number of
contributions, constituting separate and independent works
in themselves, are assembled into a collective whole.
A “compilation” is a work formed by the collection
and assembling of preexisting materials or of data that
are selected, coordinated, or arranged in such a way that
the resulting work as a whole constitutes an original work
of authorship. The term “compilation” includes
collective works.
A “computer program” is a set of statements
or instructions to be used directly or indirectly in a computer
in order to bring about a certain result.5
”Copies” are material objects, other than phonorecords,
in which a work is fixed by any method now known or later
developed, and from which the work can be perceived, reproduced,
or otherwise communicated, either directly or with the aid
of a machine or device. The term “copies” includes
the material object, other than a phonorecord, in which
the work is first fixed.
”Copyright owner”, with respect to any one
of the exclusive rights comprised in a copyright, refers
to the owner of that particular right.
A work is “created” when it is fixed in a copy
or phonorecord for the first time; where a work is prepared
over a period of time, the portion of it that has been fixed
at any particular time constitutes the work as of that time,
and where the work has been prepared in different versions,
each version constitutes a separate work.
A “derivative work” is a work based upon one
or more preexisting works, such as a translation, musical
arrangement, dramatization, fictionalization, motion picture
version, sound recording, art reproduction, abridgment,
condensation, or any other form in which a work may be recast,
transformed, or adapted. A work consisting of editorial
revisions, annotations, elaborations, or other modifications,
which, as a whole, represent an original work of authorship,
is a “derivative work”.
A “device”, “machine”, or “process”
is one now known or later developed.
A “digital transmission” is a transmission
in whole or in part in a digital or other non-analog format.6
To “display” a work means to show a copy of
it, either directly or by means of a film, slide, television
image, or any other device or process or, in the case of
a motion picture or other audiovisual work, to show individual
images nonsequentially.
An “establishment” is a store, shop, or any
similar place of business open to the general public for
the primary purpose of selling goods or services in which
the majority of the gross square feet of space that is nonresidential
is used for that purpose, and in which nondramatic musical
works are performed publicly.7
A “food service or drinking establishment”
is a restaurant, inn, bar, tavern, or any other similar
place of business in which the public or patrons assemble
for the primary purpose of being served food or drink, in
which the majority of the gross square feet of space that
is nonresidential is used for that purpose, and in which
nondramatic musical works are performed publicly.8
The term “financial gain” includes receipt,
or expectation of receipt, of anything of value, including
the receipt of other copyrighted works.9
A work is “fixed” in a tangible medium of expression
when its embodiment in a copy or phonorecord, by or under
the authority of the author, is sufficiently permanent or
stable to permit it to be perceived, reproduced, or otherwise
communicated for a period of more than transitory duration.
A work consisting of sounds, images, or both, that are being
transmitted, is “fixed” for purposes of this
title if a fixation of the work is being made simultaneously
with its transmission.
The “Geneva Phonograms Convention” is the Convention
for the Protection of Producers of Phonograms Against Unauthorized
Duplication of Their Phonograms, concluded at Geneva, Switzerland,
on October 29, 1971.10
The “gross square feet of space” of an establishment
means the entire interior space of that establishment, and
any adjoining outdoor space used to serve patrons, whether
on a seasonal basis or otherwise.11
The terms “including” and “such as”
are illustrative and not limitative.
A “joint work” is a work prepared by two or
more authors with the intention that their contributions
be merged into inseparable or interdependent parts of a
unitary whole.
”Literary works” are works, other than audiovisual
works, expressed in words, numbers, or other verbal or numerical
symbols or indicia, regardless of the nature of the material
objects, such as books, periodicals, manuscripts, phonorecords,
film, tapes, disks, or cards, in which they are embodied.
”Motion pictures” are audiovisual works consisting
of a series of related images which, when shown in succession,
impart an impression of motion, together with accompanying
sounds, if any.
To “perform” a work means to recite, render,
play, dance, or act it, either directly or by means of any
device or process or, in the case of a motion picture or
other audiovisual work, to show its images in any sequence
or to make the sounds accompanying it audible.
A “performing rights society” is an association,
corporation, or other entity that licenses the public performance
of nondramatic musical works on behalf of copyright owners
of such works, such as the American Society of Composers,
Authors and Publishers (ASCAP), Broadcast Music, Inc. (BMI),
and SESAC, Inc.15
”Phonorecords” are material objects in which
sounds, other than those accompanying a motion picture or
other audiovisual work, are fixed by any method now known
or later developed, and from which the sounds can be perceived,
reproduced, or otherwise communicated, either directly or
with the aid of a machine or device. The term “phonorecords”
includes the material object in which the sounds are first
fixed.
”Pictorial, graphic, and sculptural works”
include two-dimensional and three-dimensional works of fine,
graphic, and applied art, photographs, prints and art reproductions,
maps, globes, charts, diagrams, models, and technical drawings,
including architectural plans. Such works shall include
works of artistic craftsmanship insofar as their form but
not their mechanical or utilitarian aspects are concerned;
the design of a useful article, as defined in this section,
shall be considered a pictorial, graphic, or sculptural
work only if, and only to the extent that, such design incorporates
pictorial, graphic, or sculptural features that can be identified
separately from, and are capable of existing independently
of, the utilitarian aspects of the article.16
A “pseudonymous work” is a work on the copies
or phonorecords of which the author is identified under
a fictitious name.
”Publication” is the distribution of copies
or phonorecords of a work to the public by sale or other
transfer of ownership, or by rental, lease, or lending.
The offering to distribute copies or phonorecords to a group
of persons for purposes of further distribution, public
performance, or public display, constitutes publication.
A public performance or display of a work does not of itself
constitute publication.
(1) to perform or display it at a place open to the public
or at any place where a substantial number of persons outside
of a normal circle of a family and its social acquaintances
is gathered; or
(2) to transmit or otherwise communicate a performance
or display of the work to a place specified by clause (1)
or to the public, by means of any device or process, whether
the members of the public capable of receiving the performance
or display receive it in the same place or in separate places
and at the same time or at different times.
”Sound recordings” are works that result from
the fixation of a series of musical, spoken, or other sounds,
but not including the sounds accompanying a motion picture
or other audiovisual work, regardless of the nature of the
material objects, such as disks, tapes, or other phonorecords,
in which they are embodied.
”State” includes the District of Columbia and
the Commonwealth of Puerto Rico, and any territories to
which this title is made applicable by an Act of Congress.
A “transfer of copyright ownership” is an assignment,
mortgage, exclusive license, or any other conveyance, alienation,
or hypothecation of a copyright or of any of the exclusive
rights comprised in a copyright, whether or not it is limited
in time or place of effect, but not including a nonexclusive
license.
A “transmission program” is a body of material
that, as an aggregate, has been produced for the sole purpose
of transmission to the public in sequence and as a unit.
To “transmit” a performance or display is to
communicate it by any device or process whereby images or
sounds are received beyond the place from which they are
sent.
A “treaty party” is a country or intergovernmental
organization other than the United States that is a party
to an international agreement.19
The “United States”, when used in a geographical
sense, comprises the several States, the District of Columbia
and the Commonwealth of Puerto Rico, and the organized territories
under the jurisdiction of the United States Government.
(B) simultaneously in the United States and another treaty
party or parties, whose law grants a term of copyright protection
that is the same as or longer than the term provided in
the United States;
(C) simultaneously in the United States and a foreign nation
that is not a treaty party; or
(D) in a foreign nation that is not a treaty party, and
all of the authors of the work are nationals, domiciliaries,
or habitual residents of, or in the case of an audiovisual
work legal entities with headquarters in, the United States;
(2) in the case of an unpublished work, all the authors
of the work are nationals, domiciliaries, or habitual residents
of the United States, or, in the case of an unpublished
audiovisual work, all the authors are legal entities with
headquarters in the United States; or
(3) in the case of a pictorial, graphic, or sculptural
work incorporated in a building or structure, the building
or structure is located in the United States.19
A “useful article” is an article having an
intrinsic utilitarian function that is not merely to portray
the appearance of the article or to convey information.
An article that is normally a part of a useful article is
considered a “useful article”.
The author's “widow” or “widower”
is the author's surviving spouse under the law of the author's
domicile at the time of his or her death, whether or not
the spouse has later remarried.
The “WIPO Copyright Treaty” is the WIPO Copyright
Treaty concluded at Geneva, Switzerland, on December 20,
1996.21
The “WIPO Performances and Phonograms Treaty”
is the WIPO Performances and Phonograms Treaty concluded
at Geneva, Switzerland, on December 20, 1996.22
(1) a painting, drawing, print or sculpture, existing in
a single copy, in a limited edition of 200 copies or fewer
that are signed and consecutively numbered by the author,
or, in the case of a sculpture, in multiple cast, carved,
or fabricated sculptures of 200 or fewer that are consecutively
numbered by the author and bear the signature or other identifying
mark of the author; or
(2) a still photographic image produced for exhibition
purposes only, existing in a single copy that is signed
by the author, or in a limited edition of 200 copies or
fewer that are signed and consecutively numbered by the
author.
(A)(i) any poster, map, globe, chart, technical drawing,
diagram, model, applied art, motion picture or other audiovisual
work, book, magazine, newspaper, periodical, data base,
electronic information service, electronic publication,
or similar publication;
(ii) any merchandising item or advertising, promotional,
descriptive, covering, or packaging material or container;
A “work of the United States Government” is
a work prepared by an officer or employee of the United
States Government as part of that person's official duties.
(1) a work prepared by an employee within the scope of
his or her employment; or
(2) a work specially ordered or commissioned for use as
a contribution to a collective work, as a part of a motion
picture or other audiovisual work, as a translation, as
a supplementary work, as a compilation, as an instructional
text, as a test, as answer material for a test, or as an
atlas, if the parties expressly agree in a written instrument
signed by them that the work shall be considered a work
made for hire. For the purpose of the foregoing sentence,
a “supplementary work” is a work prepared for
publication as a secondary adjunct to a work by another
author for the purpose of introducing, concluding, illustrating,
explaining, revising, commenting upon, or assisting in the
use of the other work, such as forewords, afterwords, pictorial
illustrations, maps, charts, tables, editorial notes, musical
arrangements, answer material for tests, bibliographies,
appendixes, and indexes, and an “instructional text”
is a literary, pictorial, or graphic work prepared for publication
and with the purpose of use in systematic instructional
activities.
In determining whether any work is eligible to be considered
a work made for hire under paragraph (2), neither the amendment
contained in section 1011(d) of the Intellectual Property
and Communications Omnibus Reform Act of 1999, as enacted
by section 1000(a)(9) of Public Law 106-113, nor the deletion
of the words added by that amendment —
(B) shall be interpreted to indicate congressional approval
or disapproval of, or acquiescence in, any judicial determination,
by the courts or the Copyright Office. Paragraph (2) shall
be interpreted as if both section 2(a)(1) of the Work Made
For Hire and Copyright Corrections Act of 2000 and section
1011(d) of the Intellectual Property and Communications
Omnibus Reform Act of 1999, as enacted by section 1000(a)(9)
of Public Law 106-113, were never enacted, and without regard
to any inaction or awareness by the Congress at any time
of any judicial determinations.24
The terms “WTO Agreement” and “WTO
member country” have the meanings given those terms
in paragraphs (9) and (10), respectively, of section 2
of the Uruguay Round Agreements Act.24
§ 102. Subject matter of copyright:
In general26
(a) Copyright protection subsists, in accordance with
this title, in original works of authorship fixed in any
tangible medium of expression, now known or later developed,
from which they can be perceived, reproduced, or otherwise
communicated, either directly or with the aid of a machine
or device. Works of authorship include the following categories:
(1) literary works;
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8) architectural works.
(b) In no case does copyright protection for an original
work of authorship extend to any idea, procedure, process,
system, method of operation, concept, principle, or discovery,
regardless of the form in which it is described, explained,
illustrated, or embodied in such work.
§ 103. Subject matter of copyright:
Compilations and derivative works
(a) The subject matter of copyright as specified by section
102 includes compilations and derivative works, but
protection for a work employing preexisting material in
which copyright subsists does not extend to any part of
the work in which such material has been used unlawfully.
(b) The copyright in a compilation or derivative work
extends only to the material contributed by the author
of such work, as distinguished from the preexisting material
employed in the work, and does not imply any exclusive
right in the preexisting material. The copyright in such
work is independent of, and does not affect or enlarge
the scope, duration, ownership, or subsistence of, any
copyright protection in the preexisting material.
§ 104. Subject matter of copyright:
National origin27
(a) Unpublished Works. — The
works specified by sections
102 and 103, while
unpublished, are subject to protection under this title
without regard to the nationality or domicile of the author.
(b) Published Works. — The
works specified by sections
102 and 103, when published,
are subject to protection under this title if —
(1) on the date of first publication, one or more of
the authors is a national or domiciliary of the United
States, or is a national, domiciliary, or sovereign authority
of a treaty party, or is a stateless person, wherever
that person may be domiciled; or
(2) the work is first published in the United States
or in a foreign nation that, on the date of first publication,
is a treaty party; or
(3) the work is a sound recording that was first fixed
in a treaty party; or
(4) the work is a pictorial, graphic, or sculptural work
that is incorporated in a building or other structure,
or an architectural work that is embodied in a building
and the building or structure is located in the United
States or a treaty party; or
(5) the work is first published by the United Nations
or any of its specialized agencies, or by the Organization
of American States; or
(6) the work comes within the scope of a Presidential
proclamation. Whenever the President finds that a particular
foreign nation extends, to works by authors who are nationals
or domiciliaries of the United States or to works that
are first published in the United States, copyright protection
on substantially the same basis as that on which the foreign
nation extends protection to works of its own nationals
and domiciliaries and works first published in that nation,
the President may by proclamation extend protection under
this title to works of which one or more of the authors
is, on the date of first publication, a national, domiciliary,
or sovereign authority of that nation, or which was first
published in that nation. The President may revise, suspend,
or revoke any such proclamation or impose any conditions
or limitations on protection under a proclamation.
For purposes of paragraph (2), a work that is published
in the United States or a treaty party within 30 days
after publication in a foreign nation that is not a treaty
party shall be considered to be first published in the
United States or such treaty party, as the case may be.
(c) Effect of Berne Convention. — No
right or interest in a work eligible for protection under
this title may be claimed by virtue of, or in reliance
upon, the provisions of the Berne Convention, or the adherence
of the United States thereto. Any rights in a work eligible
for protection under this title that derive from this
title, other Federal or State statutes, or the common
law, shall not be expanded or reduced by virtue of, or
in reliance upon, the provisions of the Berne Convention,
or the adherence of the United States thereto.
(d) Effect of Phonograms Treaties. — Notwithstanding
the provisions of subsection (b), no works other than
sound recordings shall be eligible for protection under
this title solely by virtue of the adherence of the United
States to the Geneva Phonograms Convention or the WIPO
Performances and Phonograms Treaty.28
§ 104A. Copyright in restored works29
(a) Automatic Protection and Term. —
(1) Term. —
(A) Copyright subsists, in accordance with this section,
in restored works, and vests automatically on the date
of restoration.
(B) Any work in which copyright is restored under this
section shall subsist for the remainder of the term of
copyright that the work would have otherwise been granted
in the United States if the work never entered the public
domain in the United States.
(2) Exception. — Any work
in which the copyright was ever owned or administered
by the Alien Property Custodian and in which the restored
copyright would be owned by a government or instrumentality
thereof, is not a restored work.
(b) Ownership of Restored Copyright. — A
restored work vests initially in the author or initial
rightholder of the work as determined by the law of the
source country of the work.
(c) Filing of Notice of Intent to Enforce Restored
Copyright Against Reliance Parties. — On
or after the date of restoration, any person who owns
a copyright in a restored work or an exclusive right therein
may file with the Copyright Office a notice of intent
to enforce that person's copyright or exclusive right
or may serve such a notice directly on a reliance party.
Acceptance of a notice by the Copyright Office is effective
as to any reliance parties but shall not create a presumption
of the validity of any of the facts stated therein. Service
on a reliance party is effective as to that reliance party
and any other reliance parties with actual knowledge of
such service and of the contents of that notice.
(d) Remedies for Infringement of Restored Copyrights. —
(1) Enforcement of copyright in restored works
in the absence of a reliance party. — As
against any party who is not a reliance party, the remedies
provided in chapter 5 of this
title shall be available on or after the date of restoration
of a restored copyright with respect to an act of infringement
of the restored copyright that is commenced on or after
the date of restoration.
(2) Enforcement of copyright in restored works
as against reliance parties. — As
against a reliance party, except to the extent provided
in paragraphs (3) and (4), the remedies provided in chapter
5 of this title shall be available, with respect to
an act of infringement of a restored copyright, on or
after the date of restoration of the restored copyright
if the requirements of either of the following subparagraphs
are met:
(A)(i) The owner of the restored copyright (or such owner's
agent) or the owner of an exclusive right therein (or
such owner's agent) files with the Copyright Office, during
the 24-month period beginning on the date of restoration,
a notice of intent to enforce the restored copyright;
and
(ii)(I) the act of infringement commenced after the end
of the 12-month period beginning on the date of publication
of the notice in the Federal Register;
(II) the act of infringement commenced before the end
of the 12-month period described in subclause (I) and
continued after the end of that 12-month period, in which
case remedies shall be available only for infringement
occurring after the end of that 12-month period; or
(III) copies or phonorecords of a work in which copyright
has been restored under this section are made after publication
of the notice of intent in the Federal Register.
(B)(i) The owner of the restored copyright (or such owner's
agent) or the owner of an exclusive right therein (or
such owner's agent) serves upon a reliance party a notice
of intent to enforce a restored copyright; and
(ii)(I) the act of infringement commenced after the end
of the 12-month period beginning on the date the notice
of intent is received;
(II) the act of infringement commenced before the end
of the 12-month period described in subclause (I) and
continued after the end of that 12-month period, in which
case remedies shall be available only for the infringement
occurring after the end of that 12-month period; or
(III) copies or phonorecords of a work in which copyright
has been restored under this section are made after receipt
of the notice of intent.
In the event that notice is provided under both subparagraphs
(A) and (B), the 12-month period referred to in such subparagraphs
shall run from the earlier of publication or service of
notice.
(3) Existing derivative works. —
(A) In the case of a derivative work that is based upon
a restored work and is created —
(i) before the date of the enactment of the Uruguay Round
Agreements Act, if the source country of the restored
work is an eligible country on such date, or
(ii) before the date on which the source country of the
restored work becomes an eligible country, if that country
is not an eligible country on such date of enactment,
a reliance party may continue to exploit that derivative
work for the duration of the restored copyright if the
reliance party pays to the owner of the restored copyright
reasonable compensation for conduct which would be subject
to a remedy for infringement but for the provisions of
this paragraph.
(B) In the absence of an agreement between the parties,
the amount of such compensation shall be determined by
an action in United States district court, and shall reflect
any harm to the actual or potential market for or value
of the restored work from the reliance party's continued
exploitation of the work, as well as compensation for
the relative contributions of expression of the author
of the restored work and the reliance party to the derivative
work.
(4) Commencement of infringement for reliance parties. — For
purposes of section 412,
in the case of reliance parties, infringement shall be
deemed to have commenced before registration when acts
which would have constituted infringement had the restored
work been subject to copyright were commenced before the
date of restoration.
(e) Notices of Intent to Enforce a Restored Copyright. —
(1) Notices of intent filed with the copyright
office. —
(A)(i) A notice of intent filed with the Copyright Office
to enforce a restored copyright shall be signed by the
owner of the restored copyright or the owner of an exclusive
right therein, who files the notice under subsection (d)(2)(A)(i)
(hereafter in this paragraph referred to as the “owner”),
or by the owner's agent, shall identify the title of the
restored work, and shall include an English translation
of the title and any other alternative titles known to
the owner by which the restored work may be identified,
and an address and telephone number at which the owner
may be contacted. If the notice is signed by an agent,
the agency relationship must have been constituted in
a writing signed by the owner before the filing of the
notice. The Copyright Office may specifically require
in regulations other information to be included in the
notice, but failure to provide such other information
shall not invalidate the notice or be a basis for refusal
to list the restored work in the Federal Register.
(ii)If a work in which copyright is restored has no formal
title, it shall be described in the notice of intent in
detail sufficient to identify it.
(iii) Minor errors or omissions may be corrected by further
notice at any time after the notice of intent is filed.
Notices of corrections for such minor errors or omissions
shall be accepted after the period established in subsection
(d)(2)(A)(i). Notices shall be published in the Federal
Register pursuant to subparagraph (B).
(B)(i) The Register of Copyrights shall publish in the
Federal Register, commencing not later than 4 months after
the date of restoration for a particular nation and every
4 months thereafter for a period of 2 years, lists identifying
restored works and the ownership thereof if a notice of
intent to enforce a restored copyright has been filed.
(ii) Not less than 1 list containing all notices of intent
to enforce shall be maintained in the Public Information
Office of the Copyright Office and shall be available
for public inspection and copying during regular business
hours pursuant to sections
705 and 708.
(C) The Register of Copyrights is authorized to fix reasonable
fees based on the costs of receipt, processing, recording,
and publication of notices of intent to enforce a restored
copyright and corrections thereto.
(D)(i) Not later than 90 days before the date the Agreement
on Trade-Related Aspects of Intellectual Property referred
to in section 101(d)(15) of the Uruguay Round Agreements
Act enters into force with respect to the United States,
the Copyright Office shall issue and publish in the Federal
Register regulations governing the filing under this subsection
of notices of intent to enforce a restored copyright.
(ii) Such regulations shall permit owners of restored
copyrights to file simultaneously for registration of
the restored copyright.
(2) Notices of intent served on a reliance party. —
(A) Notices of intent to enforce a restored copyright
may be served on a reliance party at any time after the
date of restoration of the restored copyright.
(B) Notices of intent to enforce a restored copyright
served on a reliance party shall be signed by the owner
or the owner's agent, shall identify the restored work
and the work in which the restored work is used, if any,
in detail sufficient to identify them, and shall include
an English translation of the title, any other alternative
titles known to the owner by which the work may be identified,
the use or uses to which the owner objects, and an address
and telephone number at which the reliance party may contact
the owner. If the notice is signed by an agent, the agency
relationship must have been constituted in writing and
signed by the owner before service of the notice.
(3) Effect of material false statements. — Any
material false statement knowingly made with respect to
any restored copyright identified in any notice of intent
shall make void all claims and assertions made with respect
to such restored copyright.
(f) Immunity from Warranty and Related Liability. —
(1) In general. — Any person
who warrants, promises, or guarantees that a work does
not violate an exclusive right granted in section
106 shall not be liable for legal, equitable, arbitral,
or administrative relief if the warranty, promise, or
guarantee is breached by virtue of the restoration of
copyright under this section, if such warranty, promise,
or guarantee is made before January 1, 1995.
(2) Performances. — No person
shall be required to perform any act if such performance
is made infringing by virtue of the restoration of copyright
under the provisions of this section, if the obligation
to perform was undertaken before January 1, 1995.
(g) Proclamation of Copyright Restoration. — Whenever
the President finds that a particular foreign nation extends,
to works by authors who are nationals or domiciliaries
of the United States, restored copyright protection on
substantially the same basis as provided under this section,
the President may by proclamation extend restored protection
provided under this section to any work —
(1) of which one or more of the authors is, on the date
of first publication, a national, domiciliary, or sovereign
authority of that nation; or
(2) which was first published in that nation.
The President may revise, suspend, or revoke any such
proclamation or impose any conditions or limitations on
protection under such a proclamation.
(h) Definitions. — For purposes
of this section and section
109(a):
(1) The term “date of adherence or proclamation”
means the earlier of the date on which a foreign nation
which, as of the date the WTO Agreement enters into force
with respect to the United States, is not a nation adhering
to the Berne Convention or a WTO member country, becomes —
(A) a nation adhering to the Berne Convention;
(B) a WTO member country;
(C) a nation adhering to the WIPO Copyright Treaty;30
(D) a nation adhering to the WIPO Performances and Phonograms
Treaty;31 or
(E) subject to a Presidential proclamation under subsection
(g).
(2) The “date of restoration” of a restored
copyright is —
(A) January 1, 1996, if the source country of the restored
work is a nation adhering to the Berne Convention or a
WTO member country on such date, or
(B) the date of adherence or proclamation, in the case
of any other source country of the restored work.
(3) The term “eligible country” means a nation,
other than the United States, that —
(A) becomes a WTO member country after the date of the
enactment of the Uruguay Round Agreements Act;
(B) on such date of enactment is, or after such date
of enactment becomes, a nation adhering to the Berne Convention;
(C) adheres to the WIPO Copyright Treaty;32
(D) adheres to the WIPO Performances and Phonograms Treaty;33
or
(E) after such date of enactment becomes subject to a
proclamation under subsection (g).
(4) The term “reliance party” means any person
who —
(A) with respect to a particular work, engages in acts,
before the source country of that work becomes an eligible
country, which would have violated section
106 if the restored work had been subject to copyright
protection, and who, after the source country becomes
an eligible country, continues to engage in such acts;
(B) before the source country of a particular work becomes
an eligible country, makes or acquires 1 or more copies
or phonorecords of that work; or
(C) as the result of the sale or other disposition of
a derivative work covered under subsection (d)(3), or
significant assets of a person described in subparagraph
(A) or (B), is a successor, assignee, or licensee of that
person.
(5) The term “restored copyright” means copyright
in a restored work under this section.
(6) The term “restored work” means an original
work of authorship that —
(A) is protected under subsection (a);
(B) is not in the public domain in its source country
through expiration of term of protection;
(C) is in the public domain in the United States due
to —
(i) noncompliance with formalities imposed at any time
by United States copyright law, including failure of renewal,
lack of proper notice, or failure to comply with any manufacturing
requirements;
(ii) lack of subject matter protection in the case of
sound recordings fixed before February 15, 1972; or
(iii) lack of national eligibility;
(D) has at least one author or rightholder who was, at
the time the work was created, a national or domiciliary
of an eligible country, and if published, was first published
in an eligible country and not published in the United
States during the 30-day period following publication
in such eligible country; and
(E) if the source country for the work is an eligible
country solely by virtue of its adherence to the WIPO
Performances and Phonograms Treaty, is a sound recording.34
(7) The term “rightholder” means the person —
(A) who, with respect to a sound recording, first fixes
a sound recording with authorization, or
(B) who has acquired rights from the person described
in subparagraph (A) by means of any conveyance or by operation
of law.
(8) The “source country” of a restored work
is —
(A) a nation other than the United States;
(B) in the case of an unpublished work —
(i) the eligible country in which the author or rightholder
is a national or domiciliary, or, if a restored work has
more than 1 author or rightholder, of which the majority
of foreign authors or rightholders are nationals or domiciliaries;
or
(ii) if the majority of authors or rightholders are not
foreign, the nation other than the United States which
has the most significant contacts with the work; and
(C) in the case of a published work —
(i) the eligible country in which the work is first published,
or
(ii) if the restored work is published on the same day
in 2 or more eligible countries, the eligible country
which has the most significant contacts with the work.
§ 105. Subject matter of copyright:
United States Government works35
Copyright protection under this title is not available
for any work of the United States Government, but the
United States Government is not precluded from receiving
and holding copyrights transferred to it by assignment,
bequest, or otherwise.
§ 106. Exclusive rights in copyrighted
works36
Subject to sections 107 through
122, the owner of copyright under this title has the
exclusive rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted
work;
(3) to distribute copies or phonorecords of the copyrighted
work to the public by sale or other transfer of ownership,
or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic
works, pantomimes, and motion pictures and other audiovisual
works, to perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and choreographic
works, pantomimes, and pictorial, graphic, or sculptural
works, including the individual images of a motion picture
or other audiovisual work, to display the copyrighted
work publicly; and
(6) in the case of sound recordings, to perform the copyrighted
work publicly by means of a digital audio transmission.
§ 106A. Rights of certain authors
to attribution and integrity37
(a) Rights of Attribution and Integrity. — Subject
to section 107 and independent
of the exclusive rights provided in section
106, the author of a work of visual art —
(1) shall have the right —
(A) to claim authorship of that work, and
(B) to prevent the use of his or her name as the author
of any work of visual art which he or she did not create;
(2) shall have the right to prevent the use of his or
her name as the author of the work of visual art in the
event of a distortion, mutilation, or other modification
of the work which would be prejudicial to his or her honor
or reputation; and
(3) subject to the limitations set forth in section
113(d), shall have the right —
(A) to prevent any intentional distortion, mutilation,
or other modification of that work which would be prejudicial
to his or her honor or reputation, and any intentional
distortion, mutilation, or modification of that work is
a violation of that right, and
(B) to prevent any destruction of a work of recognized
stature, and any intentional or grossly negligent destruction
of that work is a violation of that right.
(b) Scope and Exercise of Rights. — Only
the author of a work of visual art has the rights conferred
by subsection (a) in that work, whether or not the author
is the copyright owner. The authors of a joint work of
visual art are coowners of the rights conferred by subsection
(a) in that work.
(c) Exceptions. — (1) The
modification of a work of visual art which is the result
of the passage of time or the inherent nature of the materials
is not a distortion, mutilation, or other modification
described in subsection (a)(3)(A).
(2) The modification of a work of visual art which is
the result of conservation, or of the public presentation,
including lighting and placement, of the work is not a
destruction, distortion, mutilation, or other modification
described in subsection (a)(3) unless the modification
is caused by gross negligence.
(3) The rights described in paragraphs (1) and (2) of
subsection (a) shall not apply to any reproduction, depiction,
portrayal, or other use of a work in, upon, or in any
connection with any item described in subparagraph (A)
or (B) of the definition of “work of visual art”
in section 101, and any
such reproduction, depiction, portrayal, or other use
of a work is not a destruction, distortion, mutilation,
or other modification described in paragraph (3) of subsection
(a).
(d) Duration of Rights. — (1)
With respect to works of visual art created on or after
the effective date set forth in section 610(a) of the
Visual Artists Rights Act of 1990, the rights conferred
by subsection (a) shall endure for a term consisting of
the life of the author.
(2) With respect to works of visual art created before
the effective date set forth in section 610(a) of the
Visual Artists Rights Act of 1990, but title to which
has not, as of such effective date, been transferred from
the author, the rights conferred by subsection (a) shall
be coextensive with, and shall expire at the same time
as, the rights conferred by section
106.
(3) In the case of a joint work prepared by two or more
authors, the rights conferred by subsection (a) shall
endure for a term consisting of the life of the last surviving
author.
(4) All terms of the rights conferred by subsection (a)
run to the end of the calendar year in which they would
otherwise expire.
(e) Transfer and Waiver. — (1)
The rights conferred by subsection (a) may not be transferred,
but those rights may be waived if the author expressly
agrees to such waiver in a written instrument signed by
the author. Such instrument shall specifically identify
the work, and uses of that work, to which the waiver applies,
and the waiver shall apply only to the work and uses so
identified. In the case of a joint work prepared by two
or more authors, a waiver of rights under this paragraph
made by one such author waives such rights for all such
authors.
(2) Ownership of the rights conferred by subsection (a)
with respect to a work of visual art is distinct from
ownership of any copy of that work, or of a copyright
or any exclusive right under a copyright in that work.
Transfer of ownership of any copy of a work of visual
art, or of a copyright or any exclusive right under a
copyright, shall not constitute a waiver of the rights
conferred by subsection (a). Except as may otherwise be
agreed by the author in a written instrument signed by
the author, a waiver of the rights conferred by subsection
(a) with respect to a work of visual art shall not constitute
a transfer of ownership of any copy of that work, or of
ownership of a copyright or of any exclusive right under
a copyright in that work.
§ 107. Limitations on exclusive rights:
Fair use38
Notwithstanding the provisions of sections
106 and 106A, the
fair use of a copyrighted work, including such use by
reproduction in copies or phonorecords or by any other
means specified by that section, for purposes such as
criticism, comment, news reporting, teaching (including
multiple copies for classroom use), scholarship, or research,
is not an infringement of copyright. In determining whether
the use made of a work in any particular case is a fair
use the factors to be considered shall include —
(1) the purpose and character of the use, including whether
such use is of a commercial nature or is for nonprofit
educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used
in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for
or value of the copyrighted work.
The fact that a work is unpublished shall not itself
bar a finding of fair use if such finding is made upon
consideration of all the above factors.
§ 108. Limitations on exclusive rights:
Reproduction by libraries and archives39
(a) Except as otherwise provided in this title and notwithstanding
the provisions of section 106,
it is not an infringement of copyright for a library or
archives, or any of its employees acting within the scope
of their employment, to reproduce no more than one copy
or phonorecord of a work, except as provided in subsections
(b) and (c), or to distribute such copy or phonorecord,
under the conditions specified by this section, if —
(1) the reproduction or distribution is made without
any purpose of direct or indirect commercial advantage;
(2) the collections of the library or archives are (i)
open to the public, or (ii) available not only to researchers
affiliated with the library or archives or with the institution
of which it is a part, but also to other persons doing
research in a specialized field; and
(3) the reproduction or distribution of the work includes
a notice of copyright that appears on the copy or phonorecord
that is reproduced under the provisions of this section,
or includes a legend stating that the work may be protected
by copyright if no such notice can be found on the copy
or phonorecord that is reproduced under the provisions
of this section.
(b) The rights of reproduction and distribution under
this section apply to three copies or phonorecords of
an unpublished work duplicated solely for purposes of
preservation and security or for deposit for research
use in another library or archives of the type described
by clause (2) of subsection (a), if —
(1) the copy or phonorecord reproduced is currently in
the collections of the library or archives; and
(2) any such copy or phonorecord that is reproduced in
digital format is not otherwise distributed in that format
and is not made available to the public in that format
outside the premises of the library or archives.
(c) The right of reproduction under this section applies
to three copies or phonorecords of a published work duplicated
solely for the purpose of replacement of a copy or phonorecord
that is damaged, deteriorating, lost, or stolen, or if
the existing format in which the work is stored has become
obsolete, if —
(1) the library or archives has, after a reasonable effort,
determined that an unused replacement cannot be obtained
at a fair price; and
(2) any such copy or phonorecord that is reproduced in
digital format is not made available to the public in
that format outside the premises of the library or archives
in lawful possession of such copy.
For purposes of this subsection, a format shall be considered
obsolete if the machine or device necessary to render
perceptible a work stored in that format is no longer
manufactured or is no longer reasonably available in the
commercial marketplace.
(d) The rights of reproduction and distribution under
this section apply to a copy, made from the collection
of a library or archives where the user makes his or her
request or from that of another library or archives, of
no more than one article or other contribution to a copyrighted
collection or periodical issue, or to a copy or phonorecord
of a small part of any other copyrighted work, if —
(1) the copy or phonorecord becomes the property of the
user, and the library or archives has had no notice that
the copy or phonorecord would be used for any purpose
other than private study, scholarship, or research; and
(2) the library or archives displays prominently, at
the place where orders are accepted, and includes on its
order form, a warning of copyright in accordance with
requirements that the Register of Copyrights shall prescribe
by regulation.
(e) The rights of reproduction and distribution under
this section apply to the entire work, or to a substantial
part of it, made from the collection of a library or archives
where the user makes his or her request or from that of
another library or archives, if the library or archives
has first determined, on the basis of a reasonable investigation,
that a copy or phonorecord of the copyrighted work cannot
be obtained at a fair price, if —
(1) the copy or phonorecord becomes the property of the
user, and the library or archives has had no notice that
the copy or phonorecord would be used for any purpose
other than private study, scholarship, or research; and
(2) the library or archives displays prominently, at
the place where orders are accepted, and includes on its
order form, a warning of copyright in accordance with
requirements that the Register of Copyrights shall prescribe
by regulation.
(f) Nothing in this section —
(1) shall be construed to impose liability for copyright
infringement upon a library or archives or its employees
for the unsupervised use of reproducing equipment located
on its premises: Provided, That such equipment
displays a notice that the making of a copy may be subject
to the copyright law;
(2) excuses a person who uses such reproducing equipment
or who requests a copy or phonorecord under subsection
(d) from liability for copyright infringement for any
such act, or for any later use of such copy or phonorecord,
if it exceeds fair use as provided by section
107;
(3) shall be construed to limit the reproduction and
distribution by lending of a limited number of copies
and excerpts by a library or archives of an audiovisual
news program, subject to clauses (1), (2), and (3) of
subsection (a); or
(4) in any way affects the right of fair use as provided
by section 107, or any
contractual obligations assumed at any time by the library
or archives when it obtained a copy or phonorecord of
a work in its collections.
(g) The rights of reproduction and distribution under
this section extend to the isolated and unrelated reproduction
or distribution of a single copy or phonorecord of the
same material on separate occasions, but do not extend
to cases where the library or archives, or its employee —
(1) is aware or has substantial reason to believe that
it is engaging in the related or concerted reproduction
or distribution of multiple copies or phonorecords of
the same material, whether made on one occasion or over
a period of time, and whether intended for aggregate use
by one or more individuals or for separate use by the
individual members of a group; or
(2) engages in the systematic reproduction or distribution
of single or multiple copies or phonorecords of material
described in subsection (d): Provided, That nothing
in this clause prevents a library or archives from participating
in interlibrary arrangements that do not have, as their
purpose or effect, that the library or archives receiving
such copies or phonorecords for distribution does so in
such aggregate quantities as to substitute for a subscription
to or purchase of such work.
(h)(1) For purposes of this section, during the last
20 years of any term of copyright of a published work,
a library or archives, including a nonprofit educational
institution that functions as such, may reproduce, distribute,
display, or perform in facsimile or digital form a copy
or phonorecord of such work, or portions thereof, for
purposes of preservation, scholarship, or research, if
such library or archives has first determined, on the
basis of a reasonable investigation, that none of the
conditions set forth in subparagraphs (A), (B), and (C)
of paragraph (2) apply.
(2) No reproduction, distribution, display, or performance
is authorized under this subsection if —
(A) the work is subject to normal commercial exploitation;
(B) a copy or phonorecord of the work can be obtained
at a reasonable price; or
(C) the copyright owner or its agent provides notice
pursuant to regulations promulgated by the Register of
Copyrights that either of the conditions set forth in
subparagraphs (A) and (B) applies.
(3) The exemption provided in this subsection does not
apply to any subsequent uses by users other than such
library or archives.
(i) The rights of reproduction and distribution under
this section do not apply to a musical work, a pictorial,
graphic or sculptural work, or a motion picture or other
audiovisual work other than an audiovisual work dealing
with news, except that no such limitation shall apply
with respect to rights granted by subsections (b) and
(c), or with respect to pictorial or graphic works published
as illustrations, diagrams, or similar adjuncts to works
of which copies are reproduced or distributed in accordance
with subsections (d) and (e).
§ 109. Limitations on exclusive rights:
Effect of transfer of particular copy or phonorecord40
(a) Notwithstanding the provisions of section
106(3), the owner of a particular copy or phonorecord
lawfully made under this title, or any person authorized
by such owner, is entitled, without the authority of the
copyright owner, to sell or otherwise dispose of the possession
of that copy or phonorecord. Notwithstanding the preceding
sentence, copies or phonorecords of works subject to restored
copyright under section 104A
that are manufactured before the date of restoration of
copyright or, with respect to reliance parties, before
publication or service of notice under section
104A(e), may be sold or otherwise disposed of without
the authorization of the owner of the restored copyright
for purposes of direct or indirect commercial advantage
only during the 12-month period beginning on —
(1) the date of the publication in the Federal Register
of the notice of intent filed with the Copyright Office
under section 104A(d)(2)(A),
or
(2) the date of the receipt of actual notice served under
section 104A(d)(2)(B),
whichever occurs first.
(b)(1)(A) Notwithstanding the provisions of subsection
(a), unless authorized by the owners of copyright in the
sound recording or the owner of copyright in a computer
program (including any tape, disk, or other medium embodying
such program), and in the case of a sound recording in
the musical works embodied therein, neither the owner
of a particular phonorecord nor any person in possession
of a particular copy of a computer program (including
any tape, disk, or other medium embodying such program),
may, for the purposes of direct or indirect commercial
advantage, dispose of, or authorize the disposal of, the
possession of that phonorecord or computer program (including
any tape, disk, or other medium embodying such program)
by rental, lease, or lending, or by any other act or practice
in the nature of rental, lease, or lending. Nothing in
the preceding sentence shall apply to the rental, lease,
or lending of a phonorecord for nonprofit purposes by
a nonprofit library or nonprofit educational institution.
The transfer of possession of a lawfully made copy of
a computer program by a nonprofit educational institution
to another nonprofit educational institution or to faculty,
staff, and students does not constitute rental, lease,
or lending for direct or indirect commercial purposes
under this subsection.
(B) This subsection does not apply to —
(i) a computer program which is embodied in a machine
or product and which cannot be copied during the ordinary
operation or use of the machine or product; or
(ii) a computer program embodied in or used in conjunction
with a limited purpose computer that is designed for playing
video games and may be designed for other purposes.
(C) Nothing in this subsection affects any provision
of chapter 9 of this title.
(2)(A) Nothing in this subsection shall apply to the
lending of a computer program for nonprofit purposes by
a nonprofit library, if each copy of a computer program
which is lent by such library has affixed to the packaging
containing the program a warning of copyright in accordance
with requirements that the Register of Copyrights shall
prescribe by regulation.
(B) Not later than three years after the date of the
enactment of the Computer Software Rental Amendments Act
of 1990, and at such times thereafter as the Register
of Copyrights considers appropriate, the Register of Copyrights,
after consultation with representatives of copyright owners
and librarians, shall submit to the Congress a report
stating whether this paragraph has achieved its intended
purpose of maintaining the integrity of the copyright
system while providing nonprofit libraries the capability
to fulfill their function. Such report shall advise the
Congress as to any information or recommendations that
the Register of Copyrights considers necessary to carry
out the purposes of this subsection.
(3) Nothing in this subsection shall affect any provision
of the antitrust laws. For purposes of the preceding sentence,
“antitrust laws” has the meaning given that
term in the first section of the Clayton Act and includes
section 5 of the Federal Trade Commission Act to the extent
that section relates to unfair methods of competition.
(4) Any person who distributes a phonorecord or a copy
of a computer program (including any tape, disk, or other
medium embodying such program) in violation of paragraph
(1) is an infringer of copyright under section
501 of this title and is subject to the remedies set
forth in sections 502,
503, 504,
505, and
509. Such violation shall not be a criminal offense
under section 506 or cause
such person to be subject to the criminal penalties set
forth in section 2319 of title 18.
(c) Notwithstanding the provisions of section
106(5), the owner of a particular copy lawfully made
under this title, or any person authorized by such owner,
is entitled, without the authority of the copyright owner,
to display that copy publicly, either directly or by the
projection of no more than one image at a time, to viewers
present at the place where the copy is located.
(d) The privileges prescribed by subsections (a) and
(c) do not, unless authorized by the copyright owner,
extend to any person who has acquired possession of the
copy or phonorecord from the copyright owner, by rental,
lease, loan, or otherwise, without acquiring ownership
of it.
(e) Notwithstanding the provisions of sections
106(4) and 106(5), in the case of an electronic audiovisual
game intended for use in coin-operated equipment, the
owner of a particular copy of such a game lawfully made
under this title, is entitled, without the authority of
the copyright owner of the game, to publicly perform or
display that game in coin-operated equipment, except that
this subsection shall not apply to any work of authorship
embodied in the audiovisual game if the copyright owner
of the electronic audiovisual game is not also the copyright
owner of the work of authorship.
§ 110. Limitations on exclusive rights:
Exemption of certain performances and displays41
Notwithstanding the provisions of section
106, the following are not infringements of copyright:
(1) performance or display of a work by instructors or
pupils in the course of face-to-face teaching activities
of a nonprofit educational institution, in a classroom
or similar place devoted to instruction, unless, in the
case of a motion picture or other audiovisual work, the
performance, or the display of individual images, is given
by means of a copy that was not lawfully made under this
title, and that the person responsible for the performance
knew or had reason to believe was not lawfully made;
(2) except with respect to a work produced or marketed
primarily for performance or display as part of mediated
instructional activities transmitted via digital networks,
or a performance or display that is given by means of
a copy or phonorecord that is not lawfully made and acquired
under this title, and the transmitting government body
or accredited nonprofit educational institution knew or
had reason to believe was not lawfully made and acquired,
the performance of a nondramatic literary or musical work
or reasonable and limited portions of any other work,
or display of a work in an amount comparable to that which
is typically displayed in the course of a live classroom
session, by or in the course of a transmission, if —
(A) the performance or display is made by, at the direction
of, or under the actual supervision of an instructor as
an integral part of a class session offered as a regular
part of the systematic mediated instructional activities
of a governmental body or an accredited nonprofit educational
institution;
(B) the performance or display is directly related and
of material assistance to the teaching content of the
transmission;
(C) the transmission is made solely for, and, to the
extent technologically feasible, the reception of such
transmission is limited to —
(i) students officially enrolled in the course for which
the transmission is made; or
(ii) officers or employees of governmental bodies as
a part of their official duties or employment; and
(D) the transmitting body or institution —
(i) institutes policies regarding copyright, provides
informational materials to faculty, students, and relevant
staff members that accurately describe, and promote compliance
with, the laws of the United States relating to copyright,
and provides notice to students that materials used in
connection with the course may be subject to copyright
protection; and
(ii) in the case of digital transmissions —
(I) applies technological measures that reasonably prevent —
(aa) retention of the work in accessible form by recipients
of the transmission from the transmitting body or institution
for longer than the class session; and
(bb) unauthorized further dissemination of the work
in accessible form by such recipients to others; and
(II) does not engage in conduct that could reasonably
be expected to interfere with technological measures used
by copyright owners to prevent such retention or unauthorized
further dissemination;
(3) performance of a nondramatic literary or musical
work or of a dramatico-musical work of a religious nature,
or display of a work, in the course of services at a place
of worship or other religious assembly;
(4) performance of a nondramatic literary or musical
work otherwise than in a transmission to the public, without
any purpose of direct or indirect commercial advantage
and without payment of any fee or other compensation for
the performance to any of its performers, promoters, or
organizers, if —
(A) there is no direct or indirect admission charge;
or
(B) the proceeds, after deducting the reasonable costs
of producing the performance, are used exclusively for
educational, religious, or charitable purposes and not
for private financial gain, except where the copyright
owner has served notice of objection to the performance
under the following conditions:
(i) the notice shall be in writing and signed by the
copyright owner or such owner's duly authorized agent;
and
(ii) the notice shall be served on the person responsible
for the performance at least seven days before the date
of the performance, and shall state the reasons for the
objection; and
(iii) the notice shall comply, in form, content, and
manner of service, with requirements that the Register
of Copyrights shall prescribe by regulation;
(5)(A) except as provided in subparagraph (B), communication
of a transmission embodying a performance or display of
a work by the public reception of the transmission on
a single receiving apparatus of a kind commonly used in
private homes, unless —
(i) a direct charge is made to see or hear the transmission;
or
(ii) the transmission thus received is further transmitted
to the public;
(B) communication by an establishment of a transmission
or retransmission embodying a performance or display of
a nondramatic musical work intended to be received by
the general public, originated by a radio or television
broadcast station licensed as such by the Federal Communications
Commission, or, if an audiovisual transmission, by a cable
system or satellite carrier, if —
(i) in the case of an establishment other than a food
service or drinking establishment, either the establishment
in which the communication occurs has less than 2,000
gross square feet of space (excluding space used for customer
parking and for no other purpose), or the establishment
in which the communication occurs has 2,000 or more gross
square feet of space (excluding space used for customer
parking and for no other purpose) and —
(I) if the performance is by audio means only, the performance
is communicated by means of a total of not more than 6
loudspeakers, of which not more than 4 loudspeakers are
located in any 1 room or adjoining outdoor space; or
(II) if the performance or display is by audiovisual
means, any visual portion of the performance or display
is communicated by means of a total of not more than 4
audiovisual devices, of which not more than 1 audiovisual
device is located in any 1 room, and no such audiovisual
device has a diagonal screen size greater than 55 inches,
and any audio portion of the performance or display is
communicated by means of a total of not more than 6 loudspeakers,
of which not more than 4 loudspeakers are located in any
1 room or adjoining outdoor space;
(ii) in the case of a food service or drinking establishment,
either the establishment in which the communication occurs
has less than 3,750 gross square feet of space (excluding
space used for customer parking and for no other purpose),
or the establishment in which the communication occurs
has 3,750 gross square feet of space or more (excluding
space used for customer parking and for no other purpose)
and —
(I) if the performance is by audio means only, the performance
is communicated by means of a total of not more than 6
loudspeakers, of which not more than 4 loudspeakers are
located in any 1 room or adjoining outdoor space; or
(II) if the performance or display is by audiovisual
means, any visual portion of the performance or display
is communicated by means of a total of not more than 4
audiovisual devices, of which not more than 1 audiovisual
device is located in any 1 room, and no such audiovisual
device has a diagonal screen size greater than 55 inches,
and any audio portion of the performance or display is
communicated by means of a total of not more than 6 loudspeakers,
of which not more than 4 loudspeakers are located in any
1 room or adjoining outdoor space;
(iii) no direct charge is made to see or hear the transmission
or retransmission;
(iv) the transmission or retransmission is not further
transmitted beyond the establishment where it is received;
and
(v) the transmission or retransmission is licensed by
the copyright owner of the work so publicly performed
or displayed;
(6) performance of a nondramatic musical work by a governmental
body or a nonprofit agricultural or horticultural organization,
in the course of an annual agricultural or horticultural
fair or exhibition conducted by such body or organization;
the exemption provided by this clause shall extend to
any liability for copyright infringement that would otherwise
be imposed on such body or organization, under doctrines
of vicarious liability or related infringement, for a
performance by a concessionnaire, business establishment,
or other person at such fair or exhibition, but shall
not excuse any such person from liability for the performance;
(7) performance of a nondramatic musical work by a vending
establishment open to the public at large without any
direct or indirect admission charge, where the sole purpose
of the performance is to promote the retail sale of copies
or phonorecords of the work, or of the audiovisual or
other devices utilized in such performance, and the performance
is not transmitted beyond the place where the establishment
is located and is within the immediate area where the
sale is occurring;
(8) performance of a nondramatic literary work, by or
in the course of a transmission specifically designed
for and primarily directed to blind or other handicapped
persons who are unable to read normal printed material
as a result of their handicap, or deaf or other handicapped
persons who are unable to hear the aural signals accompanying
a transmission of visual signals, if the performance is
made without any purpose of direct or indirect commercial
advantage and its transmission is made through the facilities
of: (i) a governmental body; or (ii) a noncommercial educational
broadcast station (as defined in section 397 of title
47); or (iii) a radio subcarrier authorization (as defined
in 47 CFR 73.293–73.295 and 73.593–73.595);
or (iv) a cable system (as defined in section
111 (f));
(9) performance on a single occasion of a dramatic literary
work published at least ten years before the date of the
performance, by or in the course of a transmission specifically
designed for and primarily directed to blind or other
handicapped persons who are unable to read normal printed
material as a result of their handicap, if the performance
is made without any purpose of direct or indirect commercial
advantage and its transmission is made through the facilities
of a radio subcarrier authorization referred to in clause
(8) (iii), Provided, That the provisions of this
clause shall not be applicable to more than one performance
of the same work by the same performers or under the auspices
of the same organization; and
(10) notwithstanding paragraph (4), the following is
not an infringement of copyright: performance of a nondramatic
literary or musical work in the course of a social function
which is organized and promoted by a nonprofit veterans'
organization or a nonprofit fraternal organization to
which the general public is not invited, but not including
the invitees of the organizations, if the proceeds from
the performance, after deducting the reasonable costs
of producing the performance, are used exclusively for
charitable purposes and not for financial gain. For purposes
of this section the social functions of any college or
university fraternity or sorority shall not be included
unless the social function is held solely to raise funds
for a specific charitable purpose.
The exemptions provided under paragraph (5) shall not
be taken into account in any administrative, judicial,
or other governmental proceeding to set or adjust the
royalties payable to copyright owners for the public performance
or display of their works. Royalties payable to copyright
owners for any public performance or display of their
works other than such performances or displays as are
exempted under paragraph (5) shall not be diminished in
any respect as a result of such exemption.
In paragraph (2), the term “mediated instructional
activities” with respect to the performance or display
of a work by digital transmission under this section refers
to activities that use such work as an integral part of
the class experience, controlled by or under the actual
supervision of the instructor and analogous to the type
of performance or display that would take place in a live
classroom setting. The term does not refer to activities
that use, in 1 or more class sessions of a single course,
such works as textbooks, course packs, or other material
in any media, copies or phonorecords of which are typically
purchased or acquired by the students in higher education
for their independent use and retention or are typically
purchased or acquired for elementary and secondary students
for their possession and independent use.
For purposes of paragraph (2), accreditation —
(A) with respect to an institution providing post-secondary
education, shall be as determined by a regional or national
accrediting agency recognized by the Council on Higher
Education Accreditation or the United States Department
of Education; and
(B) with respect to an institution providing elementary
or secondary education, shall be as recognized by the
applicable state certification or licensing procedures.
For purposes of paragraph (2), no governmental body
or accredited nonprofit educational institution shall
be liable for infringement by reason of the transient
or temporary storage of material carried out through the
automatic technical process of a digital transmission
of the performance or display of that material as authorized
under paragraph (2). No such material stored on the system
or network controlled or operated by the transmitting
body or institution under this paragraph shall be maintained
on such system or network in a manner ordinarily accessible
to anyone other than anticipated recipients. No such copy
shall be maintained on the system or network in a manner
ordinarily accessible to such anticipated recipients for
a longer period than is reasonably necessary to facilitate
the transmissions for which it was made.
§ 111. Limitations on exclusive rights:
Secondary transmissions42
(a) Certain Secondary Transmissions Exempted. — The
secondary transmission of a performance or display of
a work embodied in a primary transmission is not an infringement
of copyright if —
(1) the secondary transmission is not made by a cable
system, and consists entirely of the relaying, by the
management of a hotel, apartment house, or similar establishment,
of signals transmitted by a broadcast station licensed
by the Federal Communications Commission, within the local
service area of such station, to the private lodgings
of guests or residents of such establishment, and no direct
charge is made to see or hear the secondary transmission;
or
(2) the secondary transmission is made solely for the
purpose and under the conditions specified by clause (2)
of section 110; or
(3) the secondary transmission is made by any carrier
who has no direct or indirect control over the content
or selection of the primary transmission or over the particular
recipients of the secondary transmission, and whose activities
with respect to the secondary transmission consist solely
of providing wires, cables, or other communications channels
for the use of others: Provided, That the provisions
of this clause extend only to the activities of said carrier
with respect to secondary transmissions and do not exempt
from liability the activities of others with respect to
their own primary or secondary transmissions;
(4) the secondary transmission is made by a satellite
carrier for private home viewing pursuant to a statutory
license under section 119;
or
(5) the secondary transmission is not made by a cable
system but is made by a governmental body, or other nonprofit
organization, without any purpose of direct or indirect
commercial advantage, and without charge to the recipients
of the secondary transmission other than assessments necessary
to defray the actual and reasonable costs of maintaining
and operating the secondary transmission service.
(b) Secondary Transmission of Primary Transmission
to Controlled Group. — Notwithstanding
the provisions of subsections (a) and (c), the secondary
transmission to the public of a performance or display
of a work embodied in a primary transmission is actionable
as an act of infringement under section
501, and is fully subject to the remedies provided
by sections 502 through
506 and 509,
if the primary transmission is not made for reception
by the public at large but is controlled and limited to
reception by particular members of the public: Provided,
however, That such secondary transmission is not actionable
as an act of infringement if —
(1) the primary transmission is made by a broadcast station
licensed by the Federal Communications Commission; and
(2) the carriage of the signals comprising the secondary
transmission is required under the rules, regulations,
or authorizations of the Federal Communications Commission;
and
(3) the signal of the primary transmitter is not altered
or changed in any way by the secondary transmitter.
(c) Secondary Transmissions by Cable Systems. —
(1) Subject to the provisions of clauses (2), (3), and
(4) of this subsection and section
114(d), secondary transmissions to the public by a
cable system of a performance or display of a work embodied
in a primary transmission made by a broadcast station
licensed by the Federal Communications Commission or by
an appropriate governmental authority of Canada or Mexico
shall be subject to statutory licensing upon compliance
with the requirements of subsection (d) where the carriage
of the signals comprising the secondary transmission is
permissible under the rules, regulations, or authorizations
of the Federal Communications Commission.
(2) Notwithstanding the provisions of clause (1) of this
subsection, the willful or repeated secondary transmission
to the public by a cable system of a primary transmission
made by a broadcast station licensed by the Federal Communications
Commission or by an appropriate governmental authority
of Canada or Mexico and embodying a performance or display
of a work is actionable as an act of infringement under
section 501, and is fully
subject to the remedies provided by sections
502 through 506 and
509, in the following cases:
(A) where the carriage of the signals comprising the
secondary transmission is not permissible under the rules,
regulations, or authorizations of the Federal Communications
Commission; or
(B) where the cable system has not deposited the statement
of account and royalty fee required by subsection (d).
(3) Notwithstanding the provisions of clause (1) of this
subsection and subject to the provisions of subsection
(e) of this section, the secondary transmission to the
public by a cable system of a performance or display of
a work embodied in a primary transmission made by a broadcast
station licensed by the Federal Communications Commission
or by an appropriate governmental authority of Canada
or Mexico is actionable as an act of infringement under
section 501, and is fully
subject to the remedies provided by sections
502 through 506 and
sections 509 and 510,
if the content of the particular program in which the
performance or display is embodied, or any commercial
advertising or station announcements transmitted by the
primary transmitter during, or immediately before or after,
the transmission of such program, is in any way willfully
altered by the cable system through changes, deletions,
or additions, except for the alteration, deletion, or
substitution of commercial advertisements performed by
those engaged in television commercial advertising market
research: >Provided, That the research company
has obtained the prior consent of the advertiser who has
purchased the original commercial advertisement, the television
station broadcasting that commercial advertisement, and
the cable system performing the secondary transmission:
And provided further, That such commercial alteration,
deletion, or substitution is not performed for the purpose
of deriving income from the sale of that commercial time.
(4) Notwithstanding the provisions of clause (1) of this
subsection, the secondary transmission to the public by
a cable system of a performance or display of a work embodied
in a primary transmission made by a broadcast station
licensed by an appropriate governmental authority of Canada
or Mexico is actionable as an act of infringement under
section 501, and is fully
subject to the remedies provided by sections
502 through 506 and
section 509, if (A) with
respect to Canadian signals, the community of the cable
system is located more than 150 miles from the United
States–Canadian border and is also located south
of the forty-second parallel of latitude, or (B) with
respect to Mexican signals, the secondary transmission
is made by a cable system which received the primary transmission
by means other than direct interception of a free space
radio wave emitted by such broadcast television station,
unless prior to April 15, 1976, such cable system was
actually carrying, or was specifically authorized to carry,
the signal of such foreign station on the system pursuant
to the rules, regulations, or authorizations of the Federal
Communications Commission.
(d) Statutory License for Secondary Transmissions
by Cable Systems.43 —
(1) A cable system whose secondary transmissions have
been subject to statutory licensing under subsection (c)
shall, on a semiannual basis, deposit with the Register
of Copyrights, in accordance with requirements that the
Register shall prescribe by regulation —
(A) a statement of account, covering the six months next
preceding, specifying the number of channels on which
the cable system made secondary transmissions to its subscribers,
the names and locations of all primary transmitters whose
transmissions were further transmitted by the cable system,
the total number of subscribers, the gross amounts paid
to the cable system for the basic service of providing
secondary transmissions of primary broadcast transmitters,
and such other data as the Register of Copyrights may
from time to time prescribe by regulation. In determining
the total number of subscribers and the gross amounts
paid to the cable system for the basic service of providing
secondary transmissions of primary broadcast transmitters,
the cable system shall not include subscribers and amounts
collected from subscribers receiving secondary transmissions
for private home viewing pursuant to section
119. Such statement shall also include a special statement
of account covering any nonnetwork television programming
that was carried by the cable system in whole or in part
beyond the local service area of the primary transmitter,
under rules, regulations, or authorizations of the Federal
Communications Commission permitting the substitution
or addition of signals under certain circumstances, together
with logs showing the times, dates, stations, and programs
involved in such substituted or added carriage; and
(B) except in the case of a cable system whose royalty
is specified in subclause (C) or (D), a total royalty
fee for the period covered by the statement, computed
on the basis of specified percentages of the gross receipts
from subscribers to the cable service during said period
for the basic service of providing secondary transmissions
of primary broadcast transmitters, as follows:
(i) 0.675 of 1 per centum of such gross receipts for
the privilege of further transmitting any nonnetwork programming
of a primary transmitter in whole or in part beyond the
local service area of such primary transmitter, such amount
to be applied against the fee, if any, payable pursuant
to paragraphs (ii) through (iv);
(ii) 0.675 of 1 per centum of such gross receipts for
the first distant signal equivalent;
(iii) 0.425 of 1 per centum of such gross receipts for
each of the second, third, and fourth distant signal equivalents;
(iv) 0.2 of 1 per centum of such gross receipts for the
fifth distant signal equivalent and each additional distant
signal equivalent thereafter; and
in computing the amounts payable under paragraph (ii)
through (iv), above, any fraction of a distant signal
equivalent shall be computed at its fractional value and,
in the case of any cable system located partly within
and partly without the local service area of a primary
transmitter, gross receipts shall be limited to those
gross receipts derived from subscribers located without
the local service area of such primary transmitter; and
(C) if the actual gross receipts paid by subscribers
to a cable system for the period covered by the statement
for the basic service of providing secondary transmissions
of primary broadcast transmitters total $80,000 or less,
gross receipts of the cable system for the purpose of
this subclause shall be computed by subtracting from such
actual gross receipts the amount by which $80,000 exceeds
such actual gross receipts, except that in no case shall
a cable system's gross receipts be reduced to less than
$3,000. The royalty fee payable under this subclause shall
be 0.5 of 1 per centum, regardless of the number of distant
signal equivalents, if any; and
(D) if the actual gross receipts paid by subscribers
to a cable system for the period covered by the statement,
for the basic service of providing secondary transmissions
of primary broadcast transmitters, are more than $80,000
but less than $160,000, the royalty fee payable under
this subclause shall be
(i) 0.5 of 1 per centum of any gross receipts up to $80,000;
and
(ii) 1 per centum of any gross receipts in excess of
$80,000 but less than $160,000, regardless of the number
of distant signal equivalents, if any.
(2) The Register of Copyrights shall receive all fees
deposited under this section and, after deducting the
reasonable costs incurred by the Copyright Office under
this section, shall deposit the balance in the Treasury
of the United States, in such manner as the Secretary
of the Treasury directs. All funds held by the Secretary
of the Treasury shall be invested in interest-bearing
United States securities for later distribution with interest
by the Librarian of Congress in the event no controversy
over distribution exists, or by a copyright arbitration
royalty panel in the event a controversy over such distribution
exists.
(3) The royalty fees thus deposited shall, in accordance
with the procedures provided by clause (4), be distributed
to those among the following copyright owners who claim
that their works were the subject of secondary transmissions
by cable systems during the relevant semiannual period:
(A) any such owner whose work was included in a secondary
transmission made by a cable system of a nonnetwork television
program in whole or in part beyond the local service area
of the primary transmitter; and
(B) any such owner whose work was included in a secondary
transmission identified in a special statement of account
deposited under clause (1) (A); and
(C) any such owner whose work was included in nonnetwork
programming consisting exclusively of aural signals carried
by a cable system in whole or in part beyond the local
service area of the primary transmitter of such programs.
(4) The royalty fees thus deposited
shall be distributed in accordance with the following
procedures:
(A) During the month of July in each year, every person
claiming to be entitled to statutory license fees for
secondary transmissions shall file a claim with the Librarian
of Congress, in accordance with requirements that the
Librarian of Congress shall prescribe by regulation. Notwithstanding
any provisions of the antitrust laws, for purposes of
this clause any claimants may agree among themselves as
to the proportionate division of statutory licensing fees
among them, may lump their claims together and file them
jointly or as a single claim, or may designate a common
agent to receive payment on their behalf.
(B) After the first day of August of each year, the Librarian
of Congress shall, upon the recommendation of the Register
of Copyrights, determine whether there exists a controversy
concerning the distribution of royalty fees. If the Librarian
determines that no such controversy exists, the Librarian
shall, after deducting reasonable administrative costs
under this section, distribute such fees to the copyright
owners entitled to such fees, or to their designated agents.
If the Librarian finds the existence of a controversy,
the Librarian shall, pursuant to chapter
8 of this title, convene a copyright arbitration royalty
panel to determine the distribution of royalty fees.
(C) During the pendency of any proceeding under this
subsection, the Librarian of Congress shall withhold from
distribution an amount sufficient to satisfy all claims
with respect to which a controversy exists, but shall
have discretion to proceed to distribute any amounts that
are not in controversy.
(e) Nonsimultaneous Secondary Transmissions by
Cable Systems. —
(1) Notwithstanding those provisions of the second paragraph
of subsection (f) relating to nonsimultaneous secondary
transmissions by a cable system, any such transmissions
are actionable as an act of infringement under section
501, and are fully subject to the remedies provided
by sections 502 through
506 and sections
509 and 510, unless —
(A) the program on the videotape is transmitted no more
than one time to the cable system's subscribers; and
(B) the copyrighted program, episode, or motion picture
videotape, including the commercials contained within
such program, episode, or picture, is transmitted without
deletion or editing; and
(C) an owner or officer of the cable system
(i) prevents the duplication of the videotape while in
the possession of the system,
(ii) prevents unauthorized duplication while in the possession
of the facility making the videotape for the system if
the system owns or controls the facility, or takes reasonable
precautions to prevent such duplication if it does not
own or control the facility,
(iii) takes adequate precautions to prevent duplication
while the tape is being transported, and
(iv) subject to clause (2), erases or destroys, or causes
the erasure or destruction of, the videotape; and
(D) within forty-five days after the end of each calendar
quarter, an owner or officer of the cable system executes
an affidavit attesting
(i) to the steps and precautions taken to prevent duplication
of the videotape, and
(ii) subject to clause (2), to the erasure or destruction
of all videotapes made or used during such quarter; and
(E) such owner or officer places or causes each such
affidavit, and affidavits received pursuant to clause
(2) (C), to be placed in a file, open to public inspection,
at such system's main office in the community where the
transmission is made or in the nearest community where
such system maintains an office; and
(F) the nonsimultaneous transmission is one that the
cable system would be authorized to transmit under the
rules, regulations, and authorizations of the Federal
Communications Commission in effect at the time of the
nonsimultaneous transmission if the transmission had been
made simultaneously, except that this subclause shall
not apply to inadvertent or accidental transmissions.
(2) If a cable system transfers to any person a videotape
of a program nonsimultaneously transmitted by it, such
transfer is actionable as an act of infringement under
section 501, and is fully
subject to the remedies provided by sections
502 through 506 and
509, except that, pursuant
to a written, nonprofit contract providing for the equitable
sharing of the costs of such videotape and its transfer,
a videotape nonsimultaneously transmitted by it, in accordance
with clause (1), may be transferred by one cable system
in Alaska to another system in Alaska, by one cable system
in Hawaii permitted to make such nonsimultaneous transmissions
to another such cable system in Hawaii, or by one cable
system in Guam, the Northern Mariana Islands, or the Trust
Territory of the Pacific Islands, to another cable system
in any of those three territories, if —
(A) each such contract is available for public inspection
in the offices of the cable systems involved, and a copy
of such contract is filed, within thirty days after such
contract is entered into, with the Copyright Office (which
Office shall make each such contract available for public
inspection); and
(B) the cable system to which the videotape is transferred
complies with clause (1) (A), (B), (C) (i), (iii), and
(iv), and (D) through (F); and
(C) such system provides a copy of the affidavit required
to be made in accordance with clause (1) (D) to each cable
system making a previous nonsimultaneous transmission
of the same videotape.
(3) This subsection shall not be construed to supersede
the exclusivity protection provisions of any existing
agreement, or any such agreement hereafter entered into,
between a cable system and a television broadcast station
in the area in which the cable system is located, or a
network with which such station is affiliated.
(4) As used in this subsection, the term “videotape”,
and each of its variant forms, means the reproduction
of the images and sounds of a program or programs broadcast
by a television broadcast station licensed by the Federal
Communications Commission, regardless of the nature of
the material objects, such as tapes or films, in which
the reproduction is embodied.
(f) Definitions. — As used
in this section, the following terms and their variant
forms mean the following:
A “primary transmission” is a transmission
made to the public by the transmitting facility whose
signals are being received and further transmitted by
the secondary transmission service, regardless of where
or when the performance or display was first transmitted.
A “secondary transmission” is the further
transmitting of a primary transmission simultaneously
with the primary transmission, or nonsimultaneously with
the primary transmission if by a “cable system”
not located in whole or in part within the boundary of
the forty-eight contiguous States, Hawaii, or Puerto Rico:
Provided, however, That a nonsimultaneous further
transmission by a cable system located in Hawaii of a
primary transmission shall be deemed to be a secondary
transmission if the carriage of the television broadcast
signal comprising such further transmission is permissible
under the rules, regulations, or authorizations of the
Federal Communications Commission.
A “cable system” is a facility, located in
any State, Territory, Trust Territory, or Possession,
that in whole or in part receives signals transmitted
or programs broadcast by one or more television broadcast
stations licensed by the Federal Communications Commission,
and makes secondary transmissions of such signals or programs
by wires, cables, microwave, or other communications channels
to subscribing members of the public who pay for such
service. For purposes of determining the royalty fee under
subsection (d)(1), two or more cable systems in contiguous
communities under common ownership or control or operating
from one headend shall be considered as one system.
The “local service area of a primary transmitter”,
in the case of a television broadcast station, comprises
the area in which such station is entitled to insist upon
its signal being retransmitted by a cable system pursuant
to the rules, regulations, and authorizations of the Federal
Communications Commission in effect on April 15, 1976,
or such station's television market as defined in section
76.55(e) of title 47, Code of Federal Regulations (as
in effect on September 18, 1993), or any modifications
to such television market made, on or after September
18, 1993, pursuant to section 76.55(e) or 76.59 of title
47 of the Code of Federal Regulations, or in the case
of a television broadcast station licensed by an appropriate
governmental authority of Canada or Mexico, the area in
which it would be entitled to insist upon its signal being
retransmitted if it were a television broadcast station
subject to such rules, regulations, and authorizations.
In the case of a low power television station, as defined
by the rules and regulations of the Federal Communications
Commission, the “local service area of a primary
transmitter” comprises the area within 35 miles
of the transmitter site, except that in the case of such
a station located in a standard metropolitan statistical
area which has one of the 50 largest populations of all
standard metropolitan statistical areas (based on the
1980 decennial census of population taken by the Secretary
of Commerce), the number of miles shall be 20 miles. The
“local service area of a primary transmitter”,
in the case of a radio broadcast station, comprises the
primary service area of such station, pursuant to the
rules and regulations of the Federal Communications Commission.
A “distant signal equivalent” is the value
assigned to the secondary transmission of any nonnetwork
television programming carried by a cable system in whole
or in part beyond the local service area of the primary
transmitter of such programming. It is computed by assigning
a value of one to each independent station and a value
of one-quarter to each network station and noncommercial
educational station for the nonnetwork programming so
carried pursuant to the rules, regulations, and authorizations
of the Federal Communications Commission. The foregoing
values for independent, network, and noncommercial educational
stations are subject, however, to the following exceptions
and limitations. Where the rules and regulations of the
Federal Communications Commission require a cable system
to omit the further transmission of a particular program
and such rules and regulations also permit the substitution
of another program embodying a performance or display
of a work in place of the omitted transmission, or where
such rules and regulations in effect on the date of enactment
of this Act permit a cable system, at its election, to
effect such deletion and substitution of a nonlive program
or to carry additional programs not transmitted by primary
transmitters within whose local service area the cable
system is located, no value shall be assigned for the
substituted or additional program; where the rules, regulations,
or authorizations of the Federal Communications Commission
in effect on the date of enactment of this Act permit
a cable system, at its election, to omit the further transmission
of a particular program and such rules, regulations, or
authorizations also permit the substitution of another
program embodying a performance or display of a work in
place of the omitted transmission, the value assigned
for the substituted or additional program shall be, in
the case of a live program, the value of one full distant
signal equivalent multiplied by a fraction t
