-CITE-
    17 USC CHAPTER 1 - SUBJECT MATTER AND SCOPE OF COPYRIGHT    01/03/2007
-EXPCITE-
    TITLE 17 - COPYRIGHTS
    CHAPTER 1 - SUBJECT MATTER AND SCOPE OF COPYRIGHT
-HEAD-
             CHAPTER 1 - SUBJECT MATTER AND SCOPE OF COPYRIGHT         
-MISC1-
    Sec.                                                     
    101.        Definitions.                                          
    102.        Subject matter of copyright: In general.              
    103.        Subject matter of copyright: Compilations and
                 derivative works.                                    
    104.        Subject matter of copyright: National origin.         
    104A.       Copyright in restored works.                          
    105.        Subject matter of copyright: United States Government
                 works.                                               
    106.        Exclusive rights in copyrighted works.                
    106A.       Rights of certain authors to attribution and
                 integrity.                                           
    107.        Limitations on exclusive rights: Fair use.            
    108.        Limitations on exclusive rights: Reproduction by
                 libraries and archives.                              
    109.        Limitations on exclusive rights: Effect of transfer of
                 particular copy or phonorecord.                      
    110.        Limitations on exclusive rights: Exemption of certain
                 performances and displays.                           
    111.        Limitations on exclusive rights: Secondary
                 transmissions.                                       
    112.        Limitations on exclusive rights: Ephemeral recordings.
    113.        Scope of exclusive rights in pictorial, graphic, and
                 sculptural works.                                    
    114.        Scope of exclusive rights in sound recordings.        
    115.        Scope of exclusive rights in nondramatic musical
                 works: Compulsory license for making and distributing
                 phonorecords.                                        
    116.        Negotiated licenses for public performances by means
                 of coin-operated phonorecord players.                
    [116A.      Renumbered.]                                          
    117.        Limitations on exclusive rights: Computer programs.   
    118.        Scope of exclusive rights: Use of certain works in
                 connection with noncommercial broadcasting.          
    119.        Limitations on exclusive rights: Secondary
                 transmissions of superstations and network stations
                 for private home viewing.                            
    120.        Scope of exclusive rights in architectural works.     
    121.        Limitations on exclusive rights: Reproduction for
                 blind or other people with disabilities.             
    122.        Limitations on exclusive rights: Secondary
                 transmissions by satellite carriers within local
                 markets.                                             
                                AMENDMENTS                            
      2002 - Pub. L. 107-273, div. C, title III, Sec. 13210(2)(B),
    (3)(B), Nov. 2, 2002, 116 Stat. 1909, substituted "Reproduction"
    for "reproduction" in item 121 and "Limitations on exclusive
    rights: Secondary transmissions by satellite carriers within local
    markets" for "Limitations on exclusive rights; secondary
    transmissions by satellite carriers within local market" in item
    122.
      1999 - Pub. L. 106-113, div. B, Sec. 1000(a)(9) [title I, Sec.
    1002(c)], Nov. 29, 1999, 113 Stat. 1536, 1501A-527, added item 122.
      1997 - Pub. L. 105-80, Sec. 12(a)(2), Nov. 13, 1997, 111 Stat.
    1534, substituted "Limitations on exclusive rights: Computer
    programs" for "Scope of exclusive rights: Use in conjunction with
    computers and similar information systems" in item 117.
      1996 - Pub. L. 104-197, title III, Sec. 316(b), Sept. 16, 1996,
    110 Stat. 2417, added item 121.
      1994 - Pub. L. 103-465, title V, Sec. 514(c), Dec. 8, 1994, 108
    Stat. 4981, substituted "Copyright in restored works" for
    "Copyright in certain motion pictures" in item 104A.
      1993 - Pub. L. 103-198, Sec. 3(a), (b)(2), Dec. 17, 1993, 107
    Stat. 2309, renumbered item 116A as 116 and struck out former item
    116 "Scope of exclusive rights in nondramatic musical works:
    Compulsory licenses for public performances by means of coin-
    operated phonorecord players."
      Pub. L. 103-182, title III, Sec. 334(b), Dec. 8, 1993, 107 Stat.
    2115, added item 104A.
      1990 - Pub. L. 101-650, title VI, Sec. 603(b), title VII, Sec.
    704(b)(1), Dec. 1, 1990, 104 Stat. 5130, 5134, added items 106A and
    120.
      1988 - Pub. L. 100-667, title II, Sec. 202(6), Nov. 16, 1988, 102
    Stat. 3958, added item 119.
      Pub. L. 100-568, Sec. 4(b)(2), Oct. 31, 1988, 102 Stat. 2857,
    substituted "Compulsory licenses for public performances" for
    "Public performances" in item 116 and added item 116A.
-End-
-CITE-
    17 USC Sec. 101                                             01/03/2007
-EXPCITE-
    TITLE 17 - COPYRIGHTS
    CHAPTER 1 - SUBJECT MATTER AND SCOPE OF COPYRIGHT
-HEAD-
    Sec. 101. Definitions
-STATUTE-
      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.
        "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.
        The "best edition" of a work is the edition, published in the
      United States at any time before the date of deposit, that the
      Library of Congress determines to be most suitable for its
      purposes.
        A person's "children" are that person's immediate offspring,
      whether legitimate or not, and any children legally adopted by
      that person.
        A "collective work" is a work, such as a periodical issue,
      anthology, or encyclopedia, in which a number of contributions,
      constituting separate and independent works in themselves, are
      assembled into a collective whole.
        A "compilation" is a work formed by the collection and
      assembling of preexisting materials or of data that are selected,
      coordinated, or arranged in such a way that the resulting work as
      a whole constitutes an original work of authorship. The term
      "compilation" includes collective works.
        A "computer program" is a set of statements or instructions to
      be used directly or indirectly in a computer in order to bring
      about a certain result.
        "Copies" are material objects, other than phonorecords, in
      which a work is fixed by any method now known or later developed,
      and from which the work can be perceived, reproduced, or
      otherwise communicated, either directly or with the aid of a
      machine or device. The term "copies" includes the material
      object, other than a phonorecord, in which the work is first
      fixed.
        A "Copyright Royalty Judge" is a Copyright Royalty Judge
      appointed under section 802 of this title, and includes any
      individual serving as an interim Copyright Royalty Judge under
      such section.
        "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.
        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.
        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.
        The term "financial gain" includes receipt, or expectation of
      receipt, of anything of value, including the receipt of other
      copyrighted works.
        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.
        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.
        The terms "including" and "such as" are illustrative and not
      limitative.
        An "international agreement" is - 
          (1) the Universal Copyright Convention;
          (2) the Geneva Phonograms Convention;
          (3) the Berne Convention;
          (4) the WTO Agreement;
          (5) the WIPO Copyright Treaty;
          (6) the WIPO Performances and Phonograms Treaty; and
          (7) any other copyright treaty to which the United States is
        a party.
        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.
        The term "motion picture exhibition facility" means a movie
      theater, screening room, or other venue that is being used
      primarily for the exhibition of a copyrighted motion picture, if
      such exhibition is open to the public or is made to an assembled
      group of viewers outside of a normal circle of a family and its
      social acquaintances.
        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.
        "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.
        For purposes of section 513, a "proprietor" is an individual,
      corporation, partnership, or other entity, as the case may be,
      that owns an establishment or a food service or drinking
      establishment, except that no owner or operator of a radio or
      television station licensed by the Federal Communications
      Commission, cable system or satellite carrier, cable or satellite
      carrier service or programmer, provider of online services or
      network access or the operator of facilities therefor,
      telecommunications company, or any other such audio or
      audiovisual service or programmer now known or as may be
      developed in the future, commercial subscription music service,
      or owner or operator of any other transmission service, shall
      under any circumstances be deemed to be a proprietor.
        A "pseudonymous work" is a work on the copies or phonorecords
      of which the author is identified under a fictitious name.
        "Publication" is the distribution of copies or phonorecords of
      a work to the public by sale or other transfer of ownership, or
      by rental, lease, or lending. The offering to distribute copies
      or phonorecords to a group of persons for purposes of further
      distribution, public performance, or public display, constitutes
      publication. A public performance or display of a work does not
      of itself constitute publication.
        To perform or display a work "publicly" means - 
          (1) to perform or display it at a place open to the public or
        at any place where a substantial number of persons outside of a
        normal circle of a family and its social acquaintances is
        gathered; or
          (2) to transmit or otherwise communicate a performance or
        display of the work to a place specified by clause (1) or to
        the public, by means of any device or process, whether the
        members of the public capable of receiving the performance or
        display receive it in the same place or in separate places and
        at the same time or at different times.
        "Registration", for purposes of sections 205(c)(2), 405, 406,
      410(d), 411, 412, and 506(e), means a registration of a claim in
      the original or the renewed and extended term of copyright.
        "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.
        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.
        For purposes of section 411, a work is a "United States work"
      only if - 
          (1) in the case of a published work, the work is first
        published - 
            (A) in the United States;
            (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.
        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.
        The "WIPO Performances and Phonograms Treaty" is the WIPO
      Performances and Phonograms Treaty concluded at Geneva,
      Switzerland, on December 20, 1996.
        A "work of visual art" is - 
          (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 work of visual art does not include - 
          (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;
          (iii) any portion or part of any item described in clause (i)
        or (ii);
          (B) any work made for hire; or
          (C) any work not subject to copyright protection under this
        title.
        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.
        A "work made for hire" is - 
          (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 - 
          (A) shall be considered or otherwise given any legal
        significance, or
          (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.
        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.
-SOURCE-
    (Pub. L. 94-553, title I, Sec. 101, Oct. 19, 1976, 90 Stat. 2541;
    Pub. L. 96-517, Sec. 10(a), Dec. 12, 1980, 94 Stat. 3028; Pub. L.
    100-568, Sec. 4(a)(1), Oct. 31, 1988, 102 Stat. 2854; Pub. L. 101-
    650, title VI, Sec. 602, title VII, Sec. 702, Dec. 1, 1990, 104
    Stat. 5128, 5133; Pub. L. 102-307, title I, Sec. 102(b)(2), June
    26, 1992, 106 Stat. 266; Pub. L. 102-563, Sec. 3(b), Oct. 28, 1992,
    106 Stat. 4248; Pub. L. 104-39, Sec. 5(a), Nov. 1, 1995, 109 Stat.
    348; Pub. L. 105-80, Sec. 12(a)(3), Nov. 13, 1997, 111 Stat. 1534;
    Pub. L. 105-147, Sec. 2(a), Dec. 16, 1997, 111 Stat. 2678; Pub. L.
    105-298, title II, Sec. 205, Oct. 27, 1998, 112 Stat. 2833; Pub. L.
    105-304, title I, Sec. 102(a), Oct. 28, 1998, 112 Stat. 2861; Pub.
    L. 106-44, Sec. 1(g)(1), Aug. 5, 1999, 113 Stat. 222; Pub. L. 106-
    113, div. B, Sec. 1000(a)(9) [title I, Sec. 1011(d)], Nov. 29,
    1999, 113 Stat. 1536, 1501A-544; Pub. L. 106-379, Sec. 2(a), Oct.
    27, 2000, 114 Stat. 1444; Pub. L. 107-273, div. C, title III, Sec.
    13210(5), Nov. 2, 2002, 116 Stat. 1909; Pub. L. 108-419, Sec. 4,
    Nov. 30, 2004, 118 Stat. 2361; Pub. L. 109-9, title I, Sec. 102(c),
    Apr. 27, 2005, 119 Stat. 220.)
-MISC1-
                       HISTORICAL AND REVISION NOTES                   
                         HOUSE REPORT NO. 94-1476                     
      The significant definitions in this section will be mentioned or
    summarized in connection with the provisions to which they are most
    relevant.
-REFTEXT-
                            REFERENCES IN TEXT                        
      Section 1011(d) of the Intellectual Property and Communications
    Omnibus Reform Act of 1999, referred to in definition of "work made
    for hire", is section 1000(a)(9) [title I, Sec. 1011(d)] of Pub. L.
    106-113, which amended par. (2) of that definition. See 1999
    Amendment note below.
      Section 2(a)(1) of the Work Made For Hire and Copyright
    Corrections Act of 2000, referred to in definition of "work made
    for hire", is section 2(a)(1) of Pub. L. 106 - 379, which amended
    par. (2) of that definition. See 2000 Amendment note below.
      Section 2 of the Uruguay Round Agreements Act, referred to in
    definitions of "WTO Agreement" and "WTO member country", is
    classified to section 3501 of Title 19, Customs Duties.
-MISC2-
                                AMENDMENTS                            
      2005 - Pub. L. 109-9 inserted definition of "motion picture
    exhibition facility" after definition of "Motion pictures".
      2004 - Pub. L. 108-419 inserted definition of "Copyright Royalty
    Judge" after definition of "Copies".
      2002 - Pub. L. 107-273, Sec. 13210(5)(B), transferred definition
    of "Registration" to appear after definition of "publicly".
      Pub. L. 107-273, Sec. 13210(5)(A), transferred definition of
    "computer program" to appear after definition of "compilation".
      2000 - Pub. L. 106-379, Sec. 2(a)(2), in definition of "work made
    for hire", inserted after par. (2) provisions relating to
    considerations and interpretations to be used in determining
    whether any work is eligible to be considered a work made for hire
    under par. (2).
      Pub. L. 106-379, Sec. 2(a)(1), in definition of "work made for
    hire", struck out "as a sound recording," after "motion picture or
    other audiovisual work," in par. (2).
      1999 - Pub. L. 106-113, which directed the insertion of "as a
    sound recording," after "audiovisual work" in par. (2) of
    definition relating to work made for hire, was executed by making
    the insertion after "audiovisual work," to reflect the probable
    intent of Congress.
      Pub. L. 106-44, Sec. 1(g)(1)(B), in definition of "proprietor",
    substituted "For purposes of section 513, a 'proprietor' " for "A
    'proprietor' ".
      Pub. L. 106-44, Sec. 1(g)(1)(A), transferred definition of
    "United States work" to appear after definition of "United States".
      1998 - Pub. L. 105-304, Sec. 102(a)(1), struck out definition of
    "Berne Convention work".
      Pub. L. 105-304, Sec. 102(a)(2), in definition of "country of
    origin", substituted "For purposes of section 411, a work is a
    'United States work' only if" for "The 'country of origin' of a
    Berne Convention work, for purposes of section 411, is the United
    States if" in introductory provisions, substituted "treaty party or
    parties" for "nation or nations adhering to the Berne Convention"
    in par. (1)(B) and "is not a treaty party" for "does not adhere to
    the Berne Convention" in par. (1)(C), (D), and struck out at end
    "For the purposes of section 411, the 'country of origin' of any
    other Berne Convention work is not the United States."
      Pub. L. 105-298, Sec. 205(1), inserted definitions of
    "establishment" and "food service or drinking establishment".
      Pub. L. 105-304, Sec. 102(a)(3), inserted definition of "Geneva
    Phonograms Convention".
      Pub. L. 105-298, Sec. 205(2), inserted definition of "gross
    square feet of space".
      Pub. L. 105-304, Sec. 102(a)(4), inserted definition of
    "international agreement".
      Pub. L. 105-298, Sec. 205(3), (4), inserted definitions of
    "performing rights society" and "proprietor".
      Pub. L. 105-304, Sec. 102(a)(5), inserted definition of term
    "treaty party".
      Pub. L. 105-304, Sec. 102(a)(6), inserted definition of term
    "WIPO Copyright Treaty".
      Pub. L. 105-304, Sec. 102(a)(7), inserted definition of term
    "WIPO Performances and Phonograms Treaty".
      Pub. L. 105-304, Sec. 102(a)(8), inserted definitions of terms
    "WTO Agreement" and "WTO member country".
      1997 - Pub. L. 105-147 inserted definition of "financial gain".
      Pub. L. 105-80, in definition of to perform or to display a work
    "publicly", substituted "process" for "processs" in par. (2).
      1995 - Pub. L. 104-39 inserted definition of "digital
    transmission".
      1992 - Pub. L. 102-563 substituted "Except as otherwise provided
    in this title, as used" for "As used" in introductory provisions.
      Pub. L. 102-307 inserted definition of "registration".
      1990 - Pub. L. 101-650, Sec. 702(a), inserted definition of
    "architectural work".
      Pub. L. 101-650, Sec. 702(b), in definition of "Berne Convention
    work" added par. (5).
      Pub. L. 101-650, Sec. 602, inserted definition of "work of visual
    art".
      1988 - Pub. L. 100-568, Sec. 4(a)(1)(B), inserted definitions of
    "The Berne Convention" and "Berne Convention work".
      Pub. L. 100-568, Sec. 4(a)(1)(C), inserted definition of "country
    of origin".
      Pub. L. 100-568, Sec. 4(a)(1)(A), in definition of "Pictorial,
    graphic, and sculptural works" substituted "diagrams, models, and
    technical drawings, including architectural plans" for "technical
    drawings, diagrams, and models".
      1980 - Pub. L. 96-517 inserted definition of "computer program".
                     EFFECTIVE DATE OF 2004 AMENDMENT                 
      Amendment by Pub. L. 108-419 effective 6 months after Nov. 30,
    2004, subject to transition provisions, see section 6 of Pub. L.
    108-419, set out as an Effective Date; Transition Provisions note
    under section 801 of this title.
                     EFFECTIVE DATE OF 2000 AMENDMENT                 
      Pub. L. 106-379, Sec. 2(b)(1), Oct. 27, 2000, 114 Stat. 1444,
    provided that: "The amendments made by this section [amending this
    section] shall be effective as of November 29, 1999."
                     EFFECTIVE DATE OF 1999 AMENDMENT                 
      Pub. L. 106-113, div. B, Sec. 1000(a)(9) [title I, Sec. 1012],
    Nov. 29, 1999, 113 Stat. 1536, 1501A-544, provided that: "Sections
    1001, 1003, 1005, 1007, 1008, 1009, 1010, and 1011 [enacting
    sections 338 and 339 of Title 47, Telegraphs, Telephones, and
    Radiotelegraphs, amending this section, sections 111, 119, 501, and
    510 of this title, and section 325 of Title 47, enacting provisions
    set out as a note under this section and section 325 of Title 47,
    and amending provisions set out as a note under section 119 of this
    title] (and the amendments made by such sections) shall take effect
    on the date of the enactment of this Act [Nov. 29, 1999]. The
    amendments made by sections 1002, 1004, and 1006 [enacting section
    122 of this title and amending sections 119 and 501 of this title]
    shall be effective as of July 1, 1999."
                     EFFECTIVE DATE OF 1998 AMENDMENTS                 
      Pub. L. 105-304, title I, Sec. 105, Oct. 28, 1998, 112 Stat.
    2877, provided that:
      "(a) In General. - Except as otherwise provided in this title
    [see section 101 of Pub. L. 105-304, set out as a Short Title of
    1998 Amendments note below], this title and the amendments made by
    this title shall take effect on the date of the enactment of this
    Act [Oct. 28, 1998].
      "(b) Amendments Relating to Certain International Agreements. -
    (1) The following shall take effect upon the entry into force of
    the WIPO Copyright Treaty with respect to the United States [Mar.
    6, 2002]:
        "(A) Paragraph (5) of the definition of 'international
      agreement' contained in section 101 of title 17, United States
      Code, as amended by section 102(a)(4) of this Act.
        "(B) The amendment made by section 102(a)(6) of this Act
      [amending this section].
        "(C) Subparagraph (C) of section 104A(h)(1) of title 17, United
      States Code, as amended by section 102(c)(1) of this Act.
        "(D) Subparagraph (C) of section 104A(h)(3) of title 17, United
      States Code, as amended by section 102(c)(2) of this Act.
      "(2) The following shall take effect upon the entry into force of
    the WIPO Performances and Phonograms Treaty with respect to the
    United States [May 20, 2002]:
        "(A) Paragraph (6) of the definition of 'international
      agreement' contained in section 101 of title 17, United States
      Code, as amended by section 102(a)(4) of this Act.
        "(B) The amendment made by section 102(a)(7) of this Act
      [amending this section].
        "(C) The amendment made by section 102(b)(2) of this Act
      [amending section 104 of this title].
        "(D) Subparagraph (D) of section 104A(h)(1) of title 17, United
      States Code, as amended by section 102(c)(1) of this Act.
        "(E) Subparagraph (D) of section 104A(h)(3) of title 17, United
      States Code, as amended by section 102(c)(2) of this Act.
        "(F) The amendments made by section 102(c)(3) of this Act
      [amending section 104A of this title]."
      Pub. L. 105-298, title II, Sec. 207, Oct. 27, 1998, 112 Stat.
    2834, provided that: "This title [enacting section 512 of this
    title, amending this section and sections 110 and 504 of this
    title, and enacting provisions set out as notes under this section]
    and the amendments made by this title shall take effect 90 days
    after the date of the enactment of this Act [Oct. 27, 1998]."
                     EFFECTIVE DATE OF 1995 AMENDMENT                 
      Section 6 of Pub. L. 104-39 provided that: "This Act [see Short
    Title of 1995 Amendment note below] and the amendments made by this
    Act shall take effect 3 months after the date of enactment of this
    Act [Nov. 1, 1995], except that the provisions of sections 114(e)
    and 114(f) of title 17, United States Code (as added by section 3
    of this Act) shall take effect immediately upon the date of
    enactment of this Act."
                     EFFECTIVE DATE OF 1992 AMENDMENT                 
      Section 102(g) of Pub. L. 102-307, as amended by Pub. L. 105-298,
    title I, Sec. 102(d)(2)(B), Oct. 27, 1998, 112 Stat. 2828, provided
    that:
      "(1) Subject to paragraphs (2) and (3), this section [amending
    this section and sections 304, 408, 409, and 708 of this title and
    enacting provisions set out as a note under section 304 of this
    title] and the amendments made by this section shall take effect on
    the date of the enactment of this Act [June 26, 1992].
      "(2) The amendments made by this section shall apply only to
    those copyrights secured between January 1, 1964, and December 31,
    1977. Copyrights secured before January 1, 1964, shall be governed
    by the provisions of section 304(a) of title 17, United States
    Code, as in effect on the day before the effective date of this
    section [June 26, 1992], except each reference to forty-seven years
    in such provisions shall be deemed to be 67 years.
      "(3) This section and the amendments made by this section shall
    not affect any court proceedings pending on the effective date of
    this section."
                     EFFECTIVE DATE OF 1990 AMENDMENT                 
      Amendment by section 602 of Pub. L. 101-650 effective 6 months
    after Dec. 1, 1990, see section 610 of Pub. L. 101-650, set out as
    an Effective Date note under section 106A of this title.
      Section 706 of title VII of Pub. L. 101-650 provided that: "The
    amendments made by this title [enacting section 120 of this title
    and amending this section and sections 102, 106, and 301 of this
    title], apply to - 
        "(1) any architectural work created on or after the date of the
      enactment of this Act [Dec. 1, 1990]; and
        "(2) any architectural work that, on the date of the enactment
      of this Act, is unconstructed and embodied in unpublished plans
      or drawings, except that protection for such architectural work
      under title 17, United States Code, by virtue of the amendments
      made by this title, shall terminate on December 31, 2002, unless
      the work is constructed by that date."
                     EFFECTIVE DATE OF 1988 AMENDMENT                 
      Section 13 of Pub. L. 100-568 provided that:
      "(a) Effective Date. - This Act and the amendments made by this
    Act [enacting section 116A of this title, amending this section and
    sections 104, 116, 205, 301, 401 to 408, 411, 501, 504, 801, and
    804 of this title, and enacting provisions set out as notes under
    this section] take effect on the date on which the Berne Convention
    (as defined in section 101 of title 17, United States Code) enters
    into force with respect to the United States [Mar. 1, 1989]. [The
    Berne Convention entered into force with respect to the United
    States on Mar. 1, 1989.]
      "(b) Effect on Pending Cases. - Any cause of action arising under
    title 17, United States Code, before the effective date of this Act
    shall be governed by the provisions of such title as in effect when
    the cause of action arose."
                       SHORT TITLE OF 2006 AMENDMENT                   
      Pub. L. 109-303, Sec. 1, Oct. 6, 2006, 120 Stat. 1478, provided
    that: "This Act [amending sections 111, 114, 115, 118, 119, 801 to
    804, and 1007 of this title, enacting provisions set out as notes
    under sections 111 and 119 of this title, and amending provisions
    set out as a note under section 801 of this title] may be cited as
    the 'Copyright Royalty Judges Program Technical Corrections Act'."
                       SHORT TITLE OF 2005 AMENDMENT                   
      Pub. L. 109-9, Sec. 1, Apr. 27, 2005, 119 Stat. 218, provided
    that: "This Act [enacting section 2319B of Title 18, Crimes and
    Criminal Procedure, amending this section and sections 108, 110,
    408, 411, 412, and 506 of this title, sections 179m, 179n, 179p,
    179q, and 179w of Title 2, The Congress, section 1114 of Title 15,
    Commerce and Trade, section 2319 of Title 18, and sections 151703,
    151705, 151706, and 151711 of Title 36, Patriotic and National
    Observances, Ceremonies, and Organizations, enacting provisions set
    out as notes under this section, section 179l of Title 2, and
    section 101 of Title 36, and provisions listed in a table relating
    to sentencing guidelines set out as a note under section 994 of
    Title 28, Judiciary and Judicial Procedure] may be cited as the
    'Family Entertainment and Copyright Act of 2005'."
      Pub. L. 109-9, title I, Sec. 101, Apr. 27, 2005, 119 Stat. 218,
    provided that: "This title [enacting section 2319B of Title 18,
    Crimes and Criminal Procedure, amending this section, sections 408,
    411, 412, and 506 of this title, and section 2319 of Title 18, and
    enacting provisions listed in a table relating to sentencing
    guidelines set out as a note under section 994 of Title 28,
    Judiciary and Judicial Procedure] may be cited as the 'Artists'
    Rights and Theft Prevention Act of 2005' or the 'ART Act'."
      Pub. L. 109-9, title II, Sec. 201, Apr. 27, 2005, 119 Stat. 223,
    provided that: "This title [amending section 110 of this title and
    section 1114 of Title 15, Commerce and Trade] may be cited as the
    'Family Movie Act of 2005'."
      Pub. L. 109-9, title IV, Sec. 401, Apr. 27, 2005, 119 Stat. 226,
    provided that: "This title [amending section 108 of this title] may
    be cited as the 'Preservation of Orphan Works Act'."
                      SHORT TITLE OF 2004 AMENDMENTS                  
      Pub. L. 108-447, div. J, title IX, Sec. 1(a), Dec. 8, 2004, 118
    Stat. 3393, provided that: "This title [enacting sections 340 and
    341 of Title 47, Telegraphs, Telephones, and Radiotelegraphs,
    amending sections 111, 119, 122, and 803 of this title and sections
    307, 312, 325, 338, and 339 of Title 47, enacting provisions set
    out as notes under section 119 of this title and sections 325 and
    338 of Title 47, and amending provisions set out as a note under
    section 119 of this title] may be cited as the 'Satellite Home
    Viewer Extension and Reauthorization Act of 2004' or the 'W. J.
    (Billy) Tauzin Satellite Television Act of 2004'."
      Pub. L. 108-419, Sec. 1, Nov. 30, 2004, 118 Stat. 2341, provided
    that: "This Act [enacting chapter 8 of this title, amending this
    section and sections 111, 112, 114 to 116, 118, 119, 1004, 1006,
    1007, and 1010 of this title, and enacting provisions set out as a
    note under section 801 of this title] may be cited as the
    'Copyright Royalty and Distribution Reform Act of 2004'."
                      SHORT TITLE OF 2002 AMENDMENTS                  
      Pub. L. 107-321, Sec. 1, Dec. 4, 2002, 116 Stat. 2780, provided
    that: "This Act [amending section 114 of this title and enacting
    provisions set out as notes under section 114 of this title] may be
    cited as the 'Small Webcaster Settlement Act of 2002'."
      Pub. L. 107-273, div. C, title III, Sec. 13301(a), Nov. 2, 2002,
    116 Stat. 1910, provided that: "This subtitle [subtitle C (Sec.
    13301) of title III of div. C of Pub. L. 107-273, amending sections
    110, 112, and 802 of this title] may be cited as the 'Technology,
    Education, and Copyright Harmonization Act of 2002'."
                       SHORT TITLE OF 2000 AMENDMENT                   
      Pub. L. 106-379, Sec. 1, Oct. 27, 2000, 114 Stat. 1444, provided
    that: "This Act [amending this section and sections 121, 705, and
    708 of this title, repealing section 710 of this title, and
    enacting provisions set out as notes under this section and section
    708 of this title] may be cited as the 'Work Made For Hire and
    Copyright Corrections Act of 2000'."
                      SHORT TITLE OF 1999 AMENDMENTS                  
      Pub. L. 106-160, Sec. 1, Dec. 9, 1999, 113 Stat. 1774, provided
    that: "This Act [amending section 504 of this title and enacting
    provisions set out as notes under section 504 of this title and
    section 994 of Title 28, Judiciary and Judicial Procedure] may be
    cited as the 'Digital Theft Deterrence and Copyright Damages
    Improvement Act of 1999'."
      Pub. L. 106-113, div. B, Sec. 1000(a)(9) [title I, Sec. 1001],
    Nov. 29, 1999, 113 Stat. 1536, 1501A-523, provided that: "This
    title [enacting section 122 of this title and sections 338 and 339
    of Title 47, Telegraphs, Telephones, and Radiotelegraphs, amending
    this section, sections 111, 119, 501, and 510 of this title, and
    section 325 of Title 47, enacting provisions set out as notes under
    this section and section 325 of Title 47, and amending provisions
    set out as a note under section 119 of this title] may be cited as
    the 'Satellite Home Viewer Improvement Act of 1999'."
                      SHORT TITLE OF 1998 AMENDMENTS                  
      Pub. L. 105-304, Sec. 1, Oct. 28, 1998, 112 Stat. 2860, provided
    that: "This Act [enacting section 512 and chapters 12 and 13 of
    this title and section 4001 of Title 28, Judiciary and Judicial
    Procedure, amending this section, sections 104, 104A, 108, 112,
    114, 117, 411, 507, 701, and 801 to 803 of this title, section 5314
    of Title 5, Government Organization and Employees, sections 1338,
    1400, and 1498 of Title 28, and section 3 of Title 35, Patents, and
    enacting provisions set out as notes under this section and
    sections 108, 109, 112, 114, 512, and 1301 of this title] may be
    cited as the 'Digital Millennium Copyright Act'."
      Pub. L. 105-304, title I, Sec. 101, Oct. 28, 1998, 112 Stat.
    2861, provided that: "This title [enacting chapter 12 of this
    title, amending this section and sections 104, 104A, 411, and 507
    of this title, and enacting provisions set out as notes under this
    section and section 109 of this title] may be cited as the 'WIPO
    Copyright and Performances and Phonograms Treaties Implementation
    Act of 1998'."
      Pub. L. 105-304, title II, Sec. 201, Oct. 28, 1998, 112 Stat.
    2877, provided that: "This title [enacting section 512 of this
    title and provisions set out as a note under section 512 of this
    title] may be cited as the 'Online Copyright Infringement Liability
    Limitation Act'."
      Pub. L. 105-304, title III, Sec. 301, Oct. 28, 1998, 112 Stat.
    2886, provided that: "This title [amending section 117 of this
    title] may be cited as the 'Computer Maintenance Competition
    Assurance Act'."
      Pub. L. 105-304, title V, Sec. 501, Oct. 28, 1998, 112 Stat.
    2905, provided that: "This Act [probably means "this title",
    enacting chapter 13 of this title and amending sections 1338, 1400,
    and 1498 of Title 28, Judiciary and Judicial Procedure] may be
    referred to as the 'Vessel Hull Design Protection Act'."
      Pub. L. 105-298, title I, Sec. 101, Oct. 27, 1998, 112 Stat.
    2827, provided that: "This title [amending sections 108, 203, and
    301 to 304 of this title, enacting provisions set out as a note
    under section 108 of this title, and amending provisions set out as
    notes under this section and section 304 of this title] may be
    referred to as the 'Sonny Bono Copyright Term Extension Act'."
      Pub. L. 105-298, title II, Sec. 201, Oct. 27, 1998, 112 Stat.
    2830, provided that: "This title [enacting section 512 of this
    title, amending this section and sections 110 and 504 of this
    title, and enacting provisions set out as notes under this section]
    may be cited as the 'Fairness In Music Licensing Act of 1998'."
                       SHORT TITLE OF 1995 AMENDMENT                   
      Section 1 of Pub. L. 104-39 provided that: "This Act [amending
    this section and sections 106, 111, 114, 115, 119, and 801 to 803
    of this title and enacting provisions set out as a note above] may
    be cited as the 'Digital Performance Right in Sound Recordings Act
    of 1995'."
                       SHORT TITLE OF 1994 AMENDMENT                   
      Pub. L. 103-369, Sec. 1, Oct. 18, 1994, 108 Stat. 3477, provided
    that: "This Act [amending sections 111 and 119 of this title and
    enacting and repealing provisions set out as notes under section
    119 of this title] may be cited as the 'Satellite Home Viewer Act
    of 1994'."
                       SHORT TITLE OF 1993 AMENDMENT                   
      Pub. L. 103-198, Sec. 1, Dec. 17, 1993, 107 Stat. 2304, provided
    that: "This Act [amending sections 111, 116, 118, 119, 801 to 803,
    1004 to 1007, and 1010 of this title and section 1288 of Title 8,
    Aliens and Nationality, renumbering sections 116A and 804 of this
    title as sections 116 and 803, respectively, of this title,
    repealing sections 116, 803, and 805 to 810 of this title, and
    enacting provisions set out as notes under section 801 of this
    title and section 1288 of Title 8] may be cited as the 'Copyright
    Royalty Tribunal Reform Act of 1993'."
                      SHORT TITLE OF 1992 AMENDMENTS                  
      Pub. L. 102-563, Sec. 1, Oct. 28, 1992, 106 Stat. 4237, provided
    that: "This Act [enacting chapter 10 of this title, amending this
    section, sections 801, 804, and 912 of this title, and section 1337
    of Title 19, Customs Duties, and enacting provisions set out as a
    note under section 1001 of this title] may be cited as the 'Audio
    Home Recording Act of 1992'."
      Section 1 of Pub. L. 102-307 provided that: "This Act [enacting
    sections 179 to 179k of Title 2, The Congress, amending this
    section and sections 108, 304, 408, 409, and 708 of this title,
    repealing sections 178 to 178l of Title 2, enacting provisions set
    out as notes under this section, section 304 of this title, and
    section 179 of Title 2, and repealing provisions set out as a note
    under section 178 of Title 2] may be cited as the 'Copyright
    Amendments Act of 1992'."
      Section 101 of title I of Pub. L. 102-307 provided that: "This
    title [amending this section and sections 304, 408, 409, and 708 of
    this title and enacting provisions set out as notes under this
    section and section 304 of this title] may be referred to as the
    'Copyright Renewal Act of 1992'."
                       SHORT TITLE OF 1991 AMENDMENT                   
      Pub. L. 102-64, Sec. 1, June 28, 1991, 105 Stat. 320, provided
    that: "This Act [amending section 914 of this title and enacting
    provisions set out as a note under section 914 of this title] may
    be cited as the 'Semiconductor International Protection Extension
    Act of 1991'."
                      SHORT TITLE OF 1990 AMENDMENTS                  
      Section 601 of title VI of Pub. L. 101-650 provided that: "This
    title [enacting section 106A of this title, amending this section
    and sections 107, 113, 301, 411, 412, 501, and 506 of this title,
    and enacting provisions set out as notes under this section and
    section 106A of this title] may be cited as the 'Visual Artists
    Rights Act of 1990'."
      Section 701 of title VII of Pub. L. 101-650 provided that: "This
    title [enacting section 120 of this title, amending this section
    and sections 102, 106, and 301 of this title, and enacting
    provisions set out as a note above] may be cited as the
    'Architectural Works Copyright Protection Act'."
      Section 801 of title VIII of Pub. L. 101-650 provided that: "This
    title [amending section 109 of this title and enacting provisions
    set out as notes under sections 109 and 205 of this title] may be
    cited as the 'Computer Software Rental Amendments Act of 1990'."
      Pub. L. 101-553, Sec. 1, Nov. 15, 1990, 104 Stat. 2749, provided
    that: "This Act [enacting section 511 of this title, amending
    sections 501, 910, and 911 of this title, and enacting provisions
    set out as a note under section 501 of this title] may be cited as
    the 'Copyright Remedy Clarification Act'."
      Pub. L. 101-319, Sec. 1, July 3, 1990, 104 Stat. 290, provided
    that: "This Act [amending sections 701 and 802 of this title and
    sections 5315 and 5316 of Title 5, Government Organization and
    Employees, and enacting provisions set out as a note under section
    701 of this title] may be cited as the 'Copyright Royalty Tribunal
    Reform and Miscellaneous Pay Act of 1989'."
      Pub. L. 101-318, Sec. 1, July 3, 1990, 104 Stat. 287, provided
    that: "This Act [amending sections 106, 111, 704, 708, 801, and 804
    of this title and enacting provisions set out as notes under
    sections 106, 111, 708, and 804 of this title] may be cited as the
    'Copyright Fees and Technical Amendments Act of 1989'."
                      SHORT TITLE OF 1988 AMENDMENTS                  
      Pub. L. 100-667, title II, Sec. 201, Nov. 16, 1988, 102 Stat.
    3949, provided that: "This title [enacting section 119 of this
    title and sections 612 and 613 of Title 47, Telegraphs, Telephones,
    and Radiotelegraphs, amending sections 111, 501, 801, and 804 of
    this title and section 605 of Title 47, and enacting provisions set
    out as notes under section 119 of this title] may be cited as the
    'Satellite Home Viewer Act of 1988'." [Section ceases to be
    effective Dec. 31, 1994, see section 207 of Pub. L. 100-667, set
    out as an Effective and Termination Dates note under section 119 of
    this title.]
      Section 1(a) of Pub. L. 100-568 provided that: "This Act
    [enacting section 116A of this title, amending this section and
    sections 104, 116, 205, 301, 401 to 408, 411, 501, 504, 801, and
    804 of this title, and enacting provisions set out as notes under
    this section] may be cited as the 'Berne Convention Implementation
    Act of 1988'."
                      SHORT TITLE OF 1984 AMENDMENTS                  
      Pub. L. 98-620, title III, Sec. 301, Nov. 8, 1984, 98 Stat. 3347,
    provided that: "This title [enacting chapter 9 of this title] may
    be cited as the 'Semiconductor Chip Protection Act of 1984'."
      Pub. L. 98-450, Sec. 1, Oct. 4, 1984, 98 Stat. 1727, provided
    that: "This Act [amending sections 109 and 115 of this title and
    enacting provisions set out as a note under section 109 of this
    title] may be cited as the 'Record Rental Amendment of 1984'."
                               SEVERABILITY                           
      Pub. L. 106-379, Sec. 2(b)(2), Oct. 27, 2000, 114 Stat. 1444,
    provided that: "If the provisions of paragraph (1) [see Effective
    Date of 2000 Amendment note above], or any application of such
    provisions to any person or circumstance, is held to be invalid,
    the remainder of this section [amending this section and enacting
    provisions set out as a note above], the amendments made by this
    section, and the application of this section to any other person or
    circumstance shall not be affected by such invalidation."
                      CONSTRUCTION OF 1998 AMENDMENT                  
      Pub. L. 105-298, title II, Sec. 206, Oct. 27, 1998, 112 Stat.
    2834, provided that: "Except as otherwise provided in this title
    [enacting section 512 of this title, amending this section and
    sections 110 and 504 of this title, and enacting provisions set out
    as notes under this section], nothing in this title shall be
    construed to relieve any performing rights society of any
    obligation under any State or local statute, ordinance, or law, or
    consent decree or other court order governing its operation, as
    such statute, ordinance, law, decree, or order is in effect on the
    date of the enactment of this Act [Oct. 27, 1998], as it may be
    amended after such date, or as it may be issued or agreed to after
    such date."
                        FIRST AMENDMENT APPLICATION                    
      Section 609 of title VI of Pub. L. 101-650 provided that: "This
    title [see Short Title of 1990 Amendments note above] does not
    authorize any governmental entity to take any action or enforce
    restrictions prohibited by the First Amendment to the United States
    Constitution."
               BERNE CONVENTION; CONGRESSIONAL DECLARATIONS           
      Section 2 of Pub. L. 100-568 provided that: "The Congress makes
    the following declarations:
        "(1) 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 (hereafter in this Act
      [see Short Title of 1988 Amendment note above] referred to as the
      'Berne Convention') are not self-executing under the Constitution
      and laws of the United States.
        "(2) The obligations of the United States under the Berne
      Convention may be performed only pursuant to appropriate domestic
      law.
        "(3) The amendments made by this Act, together with the law as
      it exists on the date of the enactment of this Act [Oct. 31,
      1988], satisfy the obligations of the United States in adhering
      to the Berne Convention and no further rights or interests shall
      be recognized or created for that purpose."
                      BERNE CONVENTION; CONSTRUCTION                  
      Section 3 of Pub. L. 100-568 provided that:
      "(a) Relationship With Domestic Law. - The provisions of the
    Berne Convention - 
        "(1) shall be given effect under title 17, as amended by this
      Act [see Short Title of 1988 Amendment note above], and any other
      relevant provision of Federal or State law, including the common
      law; and
        "(2) shall not be enforceable in any action brought pursuant to
      the provisions of the Berne Convention itself.
      "(b) Certain Rights Not Affected. - The provisions of the Berne
    Convention, the adherence of the United States thereto, and
    satisfaction of United States obligations thereunder, do not expand
    or reduce any right of an author of a work, whether claimed under
    Federal, State, or the common law - 
        "(1) to claim authorship of the work; or
        "(2) to object to any distortion, mutilation, or other
      modification of, or other derogatory action in relation to, the
      work, that would prejudice the author's honor or reputation."
            WORKS IN PUBLIC DOMAIN WITHOUT COPYRIGHT PROTECTION        
      Section 12 of Pub. L. 100-568 provided that: "Title 17, United
    States Code, as amended by this Act [see Short Title of 1988
    Amendment note above], does not provide copyright protection for
    any work that is in the public domain in the United States."
-CROSS-
                                DEFINITIONS                            
      Pub. L. 103-465, title V, Sec. 501, Dec. 8, 1994, 108 Stat. 4973,
    provided that: "For purposes of this title [enacting section 1101
    of this title and section 2319A of Title 18, Crimes and Criminal
    Procedure, amending sections 104A and 109 of this title, sections
    1052 and 1127 of Title 15, Commerce and Trade, and sections 41,
    104, 111, 119, 154, 156, 172, 173, 252, 262, 271, 272, 287, 292,
    295, 307, 365, and 373 of Title 35, Patents, enacting provisions
    set out as notes under section 1052 of Title 15 and sections 104
    and 154 of Title 35, and amending provisions set out as a note
    under section 109 of this title] - 
        "(1) the term 'WTO Agreement' has the meaning given that term
      in section 2(9) of the Uruguay Round Agreements Act [19 U.S.C.
      3501(9)]; and
        "(2) the term 'WTO member country' has the meaning given that
      term in section 2(10) of the Uruguay Round Agreements Act."
-End-
-CITE-
    17 USC Sec. 102                                             01/03/2007
-EXPCITE-
    TITLE 17 - COPYRIGHTS
    CHAPTER 1 - SUBJECT MATTER AND SCOPE OF COPYRIGHT
-HEAD-
    Sec. 102. Subject matter of copyright: In general
-STATUTE-
      (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.
-SOURCE-
    (Pub. L. 94-553, title I, Sec. 101, Oct. 19, 1976, 90 Stat. 2544;
    Pub. L. 101-650, title VII, Sec. 703, Dec. 1, 1990, 104 Stat.
    5133.)
-MISC1-
                       HISTORICAL AND REVISION NOTES                   
                         HOUSE REPORT NO. 94-1476                     
      Original Works of Authorship. The two fundamental criteria of
    copyright protection - originality and fixation in tangible form
    are restated in the first sentence of this cornerstone provision.
    The phrase "original works or authorship," which is purposely left
    undefined, is intended to incorporate without change the standard
    of originality established by the courts under the present
    copyright statute. This standard does not include requirements of
    novelty, ingenuity, or esthetic merit, and there is no intention to
    enlarge the standard of copyright protection to require them.
      In using the phrase "original works of authorship," rather than
    "all the writings of an author" now in section 4 of the statute
    [section 4 of former title 17], the committee's purpose is to avoid
    exhausting the constitutional power of Congress to legislate in
    this field, and to eliminate the uncertainties arising from the
    latter phrase. Since the present statutory language is
    substantially the same as the empowering language of the
    Constitution [Const. Art. I, Sec. 8, cl. 8], a recurring question
    has been whether the statutory and the constitutional provisions
    are coextensive. If so, the courts would be faced with the
    alternative of holding copyrightable something that Congress
    clearly did not intend to protect, or of holding constitutionally
    incapable of copyright something that Congress might one day want
    to protect. To avoid these equally undesirable results, the courts
    have indicated that "all the writings of an author" under the
    present statute is narrower in scope than the "writings" of
    "authors" referred to in the Constitution. The bill avoids this
    dilemma by using a different phrase - "original works of
    authorship" - in characterizing the general subject matter of
    statutory copyright protection.
      The history of copyright law has been one of gradual expansion in
    the types of works accorded protection, and the subject matter
    affected by this expansion has fallen into two general categories.
    In the first, scientific discoveries and technological developments
    have made possible new forms of creative expression that never
    existed before. In some of these cases the new expressive forms -
    electronic music, filmstrips, and computer programs, for example -
    could be regarded as an extension of copyrightable subject matter
    Congress had already intended to protect, and were thus considered
    copyrightable from the outset without the need of new legislation.
    In other cases, such as photographs, sound recordings, and motion
    pictures, statutory enactment was deemed necessary to give them
    full recognition as copyrightable works.
      Authors are continually finding new ways of expressing
    themselves, but it is impossible to foresee the forms that these
    new expressive methods will take. The bill does not intend either
    to freeze the scope of copyrightable subject matter at the present
    stage of communications technology or to allow unlimited expansion
    into areas completely outside the present congressional intent.
    Section 102 implies neither that that subject matter is unlimited
    nor that new forms of expression within that general area of
    subject matter would necessarily be unprotected.
      The historic expansion of copyright has also applied to forms of
    expression which, although in existence for generations or
    centuries, have only gradually come to be recognized as creative
    and worthy of protection. The first copyright statute in this
    country, enacted in 1790, designated only "maps, charts, and
    books"; major forms of expression such as music, drama, and works
    of art achieved specific statutory recognition only in later
    enactments. Although the coverage of the present statute is very
    broad, and would be broadened further by the explicit recognition
    of all forms of choreography, there are unquestionably other areas
    of existing subject matter that this bill does not propose to
    protect but that future Congresses may want to.
      Fixation in Tangible Form. As a basic condition of copyright
    protection, the bill perpetuates the existing requirement that a
    work be fixed in a "tangible medium of expression," and adds that
    this medium may be one "now known or later developed," and that the
    fixation is sufficient if the work "can be perceived, reproduced,
    or otherwise communicated, either directly or with the aid of a
    machine or device." This broad language is intended to avoid the
    artificial and largely unjustifiable distinctions, derived from
    cases such as White-Smith Publishing Co. v. Apollo Co., 209 U.S. 1
    (1908) [28 S.Ct. 319, 52 L.Ed. 655], under which statutory
    copyrightability in certain cases has been made to depend upon the
    form or medium in which the work is fixed. Under the bill it makes
    no difference what the form, manner, or medium of fixation may be -
    whether it is in words, numbers, notes, sounds, pictures, or any
    other graphic or symbolic indicia, whether embodied in a physical
    object in written, printed, photographic, sculptural, punched,
    magnetic, or any other stable form, and whether it is capable of
    perception directly or by means of any machine or device "now known
    or later developed."
      Under the bill, the concept of fixation is important since it not
    only determines whether the provisions of the statute apply to a
    work, but it also represents the dividing line between common law
    and statutory protection. As will be noted in more detail in
    connection with section 301, an unfixed work of authorship, such as
    an improvisation or an unrecorded choreographic work, performance,
    or broadcast, would continue to be subject to protection under
    State common law or statute, but would not be eligible for Federal
    statutory protection under section 102.
      The bill seeks to resolve, through the definition of "fixation"
    in section 101, the status of live broadcasts - sports, news
    coverage, live performances of music, etc. - that are reaching the
    public in unfixed form but that are simultaneously being recorded.
    When a football game is being covered by four television cameras,
    with a director guiding the activities of the four cameramen and
    choosing which of their electronic images are sent out to the
    public and in what order, there is little doubt that what the
    cameramen and the director are doing constitutes "authorship." The
    further question to be considered is whether there has been a
    fixation. If the images and sounds to be broadcast are first
    recorded (on a video tape, film, etc.) and then transmitted, the
    recorded work would be considered a "motion picture" subject to
    statutory protection against unauthorized reproduction or
    retransmission of the broadcast. If the program content is
    transmitted live to the public while being recorded at the same
    time, the case would be treated the same; the copyright owner would
    not be forced to rely on common law rather than statutory rights in
    proceeding against an infringing user of the live broadcast.
      Thus, assuming it is copyrightable - as a "motion picture" or
    "sound recording," for example - the content of a live transmission
    should be regarded as fixed and should be accorded statutory
    protection if it is being recorded simultaneously with its
    transmission. On the other hand, the definition of "fixation" would
    exclude from the concept purely evanescent or transient
    reproductions such as those projected briefly on a screen, shown
    electronically on a television or other cathode ray tube, or
    captured momentarily in the "memory" of a computer.
      Under the first sentence of the definition of "fixed" in section
    101, a work would be considered "fixed in a tangible medium of
    expression" if there has been an authorized embodiment in a copy or
    phonorecord and if that embodiment "is sufficiently permanent or
    stable" to permit the work "to be perceived, reproduced, or
    otherwise communicated for a period of more than transitory
    duration." The second sentence makes clear that, in the case of "a
    work consisting of sounds, images, or both, that are being
    transmitted," the work is regarded as "fixed" if a fixation is
    being made at the same time as the transmission.
      Under this definition "copies" and "phonorecords" together will
    comprise all of the material objects in which copyrightable works
    are capable of being fixed. The definitions of these terms in
    section 101, together with their usage in section 102 and
    throughout the bill, reflect a fundamental distinction between the
    "original work" which is the product of "authorship" and the
    multitude of material objects in which it can be embodied. Thus, in
    the sense of the bill, a "book" is not a work of authorship, but is
    a particular kind of "copy." Instead, the author may write a
    "literary work," which in turn can be embodied in a wide range of
    "copies" and "phonorecords," including books, periodicals, computer
    punch cards, microfilm, tape recordings, and so forth. It is
    possible to have an "original work of authorship" without having a
    "copy" or "phonorecord" embodying it, and it is also possible to
    have a "copy" or "phonorecord" embodying something that does not
    qualify as an "original work of authorship." The two essential
    elements - original work and tangible object - must merge through
    fixation in order to produce subject matter copyrightable under the
    statute.
      Categories of Copyrightable Works. The second sentence of section
    102 lists seven broad categories which the concept of "works of
    authorship" is said to "include". The use of the word "include," as
    defined in section 101, makes clear that the listing is
    "illustrative and not limitative," and that the seven categories do
    not necessarily exhaust the scope of "original works of authorship"
    that the bill is intended to protect. Rather, the list sets out the
    general area of copyrightable subject matter, but with sufficient
    flexibility to free the courts from rigid or outmoded concepts of
    the scope of particular categories. The items are also overlapping
    in the sense that a work falling within one class may encompass
    works coming within some or all of the other categories. In the
    aggregate, the list covers all classes of works now specified in
    section 5 of title 17 [section 5 of former title 17]; in addition,
    it specifically enumerates "pantomimes and choreographic works".
      Of the seven items listed, four are defined in section 101. The
    three undefined categories - "musical works," "dramatic works," and
    "pantomimes and choreographic works" - have fairly settled
    meanings. There is no need, for example, to specify the
    copyrightability of electronic or concrete music in the statute
    since the form of a work would no longer be of any importance, nor
    is it necessary to specify that "choreographic works" do not
    include social dance steps and simple routines.
      The four items defined in section 101 are "literary works,"
    "pictorial, graphic, and sculptural works," "motion pictures and
    audiovisual works", and "sound recordings". In each of these cases,
    definitions are needed not only because the meaning of the term
    itself is unsettled but also because the distinction between "work"
    and "material object" requires clarification. The term "literary
    works" does not connote any criterion of literary merit or
    qualitative value: it includes catalogs, directories, and similar
    factual, reference, or instructional works and compilations of
    data. It also includes computer data bases, and computer programs
    to the extent that they incorporate authorship in the programmer's
    expression of original ideas, as distinguished from the ideas
    themselves.
      Correspondingly, the definition of "pictorial, graphic, and
    sculptural works" carries with it no implied criterion of artistic
    taste, aesthetic value, or intrinsic quality. The term is intended
    to comprise not only "works of art" in the traditional sense but
    also works of graphic art and illustration, art reproductions,
    plans and drawings, photographs and reproductions of them, maps,
    charts, globes, and other cartographic works, works of these kinds
    intended for use in advertising and commerce, and works of "applied
    art." There is no intention whatever to narrow the scope of the
    subject matter now characterized in section 5(k) [section 5(k) of
    former title 17] as "prints or labels used for articles of
    merchandise." However, since this terminology suggests the material
    object in which a work is embodied rather than the work itself, the
    bill does not mention this category separately.
      In accordance with the Supreme Court's decision in Mazer v.
    Stein, 347 U.S. 201 (1954) [74 S.Ct. 460, 98 L. Ed. 630, rehearing
    denied 74 S.Ct. 637, 347 U.S. 949, 98 L.Ed. 1096], works of
    "applied art" encompass all original pictorial, graphic, and
    sculptural works that are intended to be or have been embodied in
    useful articles, regardless of factors such as mass production,
    commercial exploitation, and the potential availability of design
    patent protection. The scope of exclusive rights in these works is
    given special treatment in section 113, to be discussed below.
      The Committee has added language to the definition of "pictorial,
    graphic, and sculptural works" in an effort to make clearer the
    distinction between works of applied art protectable under the bill
    and industrial designs not subject to copyright protection. The
    declaration that "pictorial, graphic, and sculptural works" include
    "works of artistic craftsmanship insofar as their form but not
    their mechanical or utilitarian aspects are concerned" is classic
    language; it is drawn from Copyright Office regulations promulgated
    in the 1940's and expressly endorsed by the Supreme Court in the
    Mazer case.
      The second part of the amendment states that "the design of a
    useful article * * * shall be considered a pictorial, graphic, or
    sculptural work only if, and only to the extent that, such design
    incorporates pictorial, graphic, or sculptural features that can be
    identified separately from, and are capable of existing
    independently of, the utilitarian aspects of the article." A
    "useful article" is defined as "an article having an intrinsic
    utilitarian function that is not merely to portray the appearance
    of the article or to convey information." This part of the
    amendment is an adaptation of language added to the Copyright
    Office Regulations in the mid-1950's in an effort to implement the
    Supreme Court's decision in the Mazer case.
      In adopting this amendatory language, the Committee is seeking to
    draw as clear a line as possible between copyrightable works of
    applied art and uncopyrighted works of industrial design. A two-
    dimensional painting, drawing, or graphic work is still capable of
    being identified as such when it is printed on or applied to
    utilitarian articles such as textile fabrics, wallpaper,
    containers, and the like. The same is true when a statue or carving
    is used to embellish an industrial product or, as in the Mazer
    case, is incorporated into a product without losing its ability to
    exist independently as a work of art. On the other hand, although
    the shape of an industrial product may be aesthetically satisfying
    and valuable, the Committee's intention is not to offer it
    copyright protection under the bill. Unless the shape of an
    automobile, airplane, ladies' dress, food processor, television
    set, or any other industrial product contains some element that,
    physically or conceptually, can be identified as separable from the
    utilitarian aspects of that article, the design would not be
    copyrighted under the bill. The test of separability and
    independence from "the utilitarian aspects of the article" does not
    depend upon the nature of the design - that is, even if the
    appearance of an article is determined by aesthetic (as opposed to
    functional) considerations, only elements, if any, which can be
    identified separately from the useful article as such are
    copyrightable. And, even if the three-dimensional design contains
    some such element (for example, a carving on the back of a chair or
    a floral relief design on silver flatware), copyright protection
    would extend only to that element, and would not cover the over-all
    configuration of the utilitarian article as such.
      A special situation is presented by architectural works. An
    architect's plans and drawings would, of course, be protected by
    copyright, but the extent to which that protection would extend to
    the structure depicted would depend on the circumstances. Purely
    nonfunctional or monumental structures would be subject to full
    copyright protection under the bill, and the same would be true of
    artistic sculpture or decorative ornamentation or embellishment
    added to a structure. On the other hand, where the only elements of
    shape in an architectural design are conceptually inseparable from
    the utilitarian aspects of the structure, copyright protection for
    the design would not be available.
      The Committee has considered, but chosen to defer, the
    possibility of protecting the design of typefaces. A "typeface" can
    be defined as a set of letters, numbers, or other symbolic
    characters, whose forms are related by repeating design elements
    consistently applied in a notational system and are intended to be
    embodied in articles whose intrinsic utilitarian function is for
    use in composing text or other cognizable combinations of
    characters. The Committee does not regard the design of typeface,
    as thus defined, to be a copyrightable "pictorial, graphic, or
    sculptural work" within the meaning of this bill and the
    application of the dividing line in section 101.
      Enactment of Public Law 92-140 in 1971 [Pub. L. 92-140, Oct. 15,
    1971, 85 Stat. 391, which amended sections 1, 5, 19, 20, 26, and
    101 of former title 17, and enacted provisions set out as a note
    under section 1 of former title 17] marked the first recognition in
    American copyright law of sound recordings as copyrightable works.
    As defined in section 101, copyrightable "sound recordings" are
    original works of authorship comprising an aggregate of musical,
    spoken, or other sounds that have been fixed in tangible form. The
    copyrightable work comprises the aggregation of sounds and not the
    tangible medium of fixation. Thus, "sound recordings" as
    copyrightable subject matter are distinguished from "phonorecords,"
    the latter being physical objects in which sounds are fixed. They
    are also distinguished from any copyrighted literary, dramatic, or
    musical works that may be reproduced on a "phonorecord."
      As a class of subject matter, sound recordings are clearly within
    the scope of the "writings of an author" capable of protection
    under the Constitution [Const. Art. I, Sec. 8, cl. 8], and the
    extension of limited statutory protection to them was too long
    delayed. Aside from cases in which sounds are fixed by some purely
    mechanical means without originality of any kind, the copyright
    protection that would prevent the reproduction and distribution of
    unauthorized phonorecords of sound recordings is clearly justified.
      The copyrightable elements in a sound recording will usually,
    though not always, involve "authorship" both on the part of the
    performers whose performance is captured and on the part of the
    record producer responsible for setting up the recording session,
    capturing and electronically processing the sounds, and compiling
    and editing them to make the final sound recording. There may,
    however, be cases where the record producer's contribution is so
    minimal that the performance is the only copyrightable element in
    the work, and there may be cases (for example, recordings of
    birdcalls, sounds of racing cars, et cetera) where only the record
    producer's contribution is copyrightable.
      Sound tracks of motion pictures, long a nebulous area in American
    copyright law, are specifically included in the definition of
    "motion pictures," and excluded in the definition of "sound
    recordings." To be a "motion picture," as defined, requires three
    elements: (1) a series of images, (2) the capability of showing the
    images in certain successive order, and (3) an impression of motion
    when the images are thus shown. Coupled with the basic requirements
    of original authorship and fixation in tangible form, this
    definition encompasses a wide range of cinematographic works
    embodied in films, tapes, video disks, and other media. However, it
    would not include: (1) unauthorized fixations of live performances
    or telecasts, (2) live telecasts that are not fixed simultaneously
    with their transmission, or (3) filmstrips and slide sets which,
    although consisting of a series of images intended to be shown in
    succession, are not capable of conveying an impression of motion.
      On the other hand, the bill equates audiovisual materials such as
    filmstrips, slide sets, and sets of transparencies with "motion
    pictures" rather than with "pictorial, graphic, and sculptural
    works." Their sequential showing is closer to a "performance" than
    to a "display," and the definition of "audiovisual works," which
    applies also to "motion pictures," embraces works consisting of a
    series of related images that are by their nature, intended for
    showing by means of projectors or other devices.
      Nature of Copyright. Copyright does not preclude others from
    using the ideas or information revealed by the author's work. It
    pertains to the literary, musical, graphic, or artistic form in
    which the author expressed intellectual concepts. Section 102(b)
    makes clear that copyright protection does not 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.
      Some concern has been expressed lest copyright in computer
    programs should extend protection to the methodology or processes
    adopted by the programmer, rather than merely to the "writing"
    expressing his ideas. Section 102(b) is intended, among other
    things, to make clear that the expression adopted by the programmer
    is the copyrightable element in a computer program, and that the
    actual processes or methods embodied in the program are not within
    the scope of the copyright law.
      Section 102(b) in no way enlarges or contracts the scope of
    copyright protection under the present law. Its purpose is to
    restate, in the context of the new single Federal system of
    copyright, that the basic dichotomy between expression and idea
    remains unchanged.
                                AMENDMENTS                            
      1990 - Subsec. (a)(8). Pub. L. 101-650 added par. (8).
                     EFFECTIVE DATE OF 1990 AMENDMENT                 
      Amendment by Pub. L. 101-650 applicable to any architectural work
    created on or after Dec. 1, 1990, and any architectural work, that,
    on Dec. 1, 1990, is unconstructed and embodied in unpublished plans
    or drawings, except that protection for such architectural work
    under this title terminates on Dec. 31, 2002, unless the work is
    constructed by that date, see section 706 of Pub. L. 101-650, set
    out as a note under section 101 of this title.
-End-
-CITE-
    17 USC Sec. 103                                             01/03/2007
-EXPCITE-
    TITLE 17 - COPYRIGHTS
    CHAPTER 1 - SUBJECT MATTER AND SCOPE OF COPYRIGHT
-HEAD-
    Sec. 103. Subject matter of copyright: Compilations and derivative
      works
-STATUTE-
      (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.
-SOURCE-
    (Pub. L. 94-553, title I, Sec. 101, Oct. 19, 1976, 90 Stat. 2545.)
-MISC1-
                       HISTORICAL AND REVISION NOTES                   
                         HOUSE REPORT NO. 94-1476                     
      Section 103 complements section 102: A compilation or derivative
    work is copyrightable if it represents an "original work of
    authorship" and falls within one or more of the categories listed
    in section 102. Read together, the two sections make plain that the
    criteria of copyrightable subject matter stated in section 102
    apply with full force to works that are entirely original and to
    those containing preexisting material. Section 103(b) is also
    intended to define, more sharply and clearly than does section 7 of
    the present law [section 7 of former title 17], the important
    interrelationship and correlation between protection of preexisting
    and of "new" material in a particular work. The most important
    point here is one that is commonly misunderstood today: copyright
    in a "new version" covers only the material added by the later
    author, and has no effect one way or the other on the copyright or
    public domain status of the preexisting material.
      Between them the terms "compilations" and "derivative works"
    which are defined in section 101 comprehend every copyrightable
    work that employs preexisting material or data of any kind. There
    is necessarily some overlapping between the two, but they basically
    represent different concepts. A "compilation" results from a
    process of selecting, bringing together, organizing, and arranging
    previously existing material of all kinds, regardless of whether
    the individual items in the material have been or ever could have
    been subject to copyright. A "derivative work," on the other hand,
    requires a process of recasting, transforming, or adapting "one or
    more preexisting works"; the "preexisting work" must come within
    the general subject matter of copyright set forth in section 102,
    regardless of whether it is or was ever copyrighted.
      The second part of the sentence that makes up section 103(a)
    deals with the status of a compilation or derivative work
    unlawfully employing preexisting copyrighted material. In providing
    that protection does not extend to "any part of the work in which
    such material has been used unlawfully," the bill prevents an
    infringer from benefiting, through copyright protection, from
    committing an unlawful act, but preserves protection for those
    parts of the work that do not employ the preexisting work. Thus, an
    unauthorized translation of a novel could not be copyrighted at
    all, but the owner of copyright in an anthology of poetry could sue
    someone who infringed the whole anthology, even though the
    infringer proves that publication of one of the poems was
    unauthorized. Under this provision, copyright could be obtained as
    long as the use of the preexisting work was not "unlawful," even
    though the consent of the copyright owner had not been obtained.
    For instance, the unauthorized reproduction of a work might be
    "lawful" under the doctrine of fair use or an applicable foreign
    law, and if so the work incorporating it could be copyrighted.
-End-
-CITE-
    17 USC Sec. 104                                             01/03/2007
-EXPCITE-
    TITLE 17 - COPYRIGHTS
    CHAPTER 1 - SUBJECT MATTER AND SCOPE OF COPYRIGHT
-HEAD-
    Sec. 104. Subject matter of copyright: National origin
-STATUTE-
      (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.
-SOURCE-
    (Pub. L. 94-553, title I, Sec. 101, Oct. 19, 1976, 90 Stat. 2545;
    Pub. L. 100-568, Sec. 4(a)(2), (3), Oct. 31, 1988, 102 Stat. 2855;
    Pub. L. 105-304, title I, Sec. 102(b), Oct. 28, 1998, 112 Stat.
    2862.)
-MISC1-
                       HISTORICAL AND REVISION NOTES                   
                         HOUSE REPORT NO. 94-1476                     
      Section 104 of the bill [this section], which sets forth the
    basic criteria under which works of foreign origin can be protected
    under the U.S. copyright law, divides all works coming within the
    scope of sections 102 and 103 into two categories: unpublished and
    published. Subsection (a) imposes no qualifications of nationality
    and domicile with respect to unpublished works. Subsection (b)
    would make published works subject to protection under any one of
    four conditions:
        (1) The author is a national or domiciliary of the United
      States or of a country with which the United States has copyright
      relations under a treaty, or is a stateless person;
        (2) The work is first published in the United States or in a
      country that is a party to the Universal Copyright Convention;
        (3) The work is first published by the United Nations, by any
      of its specialized agencies, or by the Organization of American
      States; or
        (4) The work is covered by a Presidential proclamation
      extending protection to works originating in a specified country
      which extends protection to U.S. works "on substantially the same
      basis" as to its own works.
      The third of these conditions represents a treaty obligation of
    the United States. Under the Second Protocol of the Universal
    Copyright Convention, protection under U.S. Copyright law is
    expressly required for works published by the United Nations, by
    U.N. specialized agencies and by the Organization of American
    States.
                                AMENDMENTS                            
      1998 - Subsec. (b). Pub. L. 105-304, Sec. 102(b)(1)(G), inserted
    concluding provisions.
      Subsec. (b)(1). Pub. L. 105-304, Sec. 102(b)(1)(A), substituted
    "treaty party" for "foreign nation that is a party to a copyright
    treaty to which the United States is also a party".
      Subsec. (b)(2). Pub. L. 105-304, Sec. 102(b)(1)(B), substituted
    "treaty party" for "party to the Universal Copyright Convention".
      Subsec. (b)(3). Pub. L. 105-304, Sec. 102(b)(1)(E), added par.
    (3). Former par. (3) redesignated (5).
      Subsec. (b)(4). Pub. L. 105-304, Sec. 102(b)(1)(F), substituted
    "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" for "Berne Convention work".
      Subsec. (b)(5), (6). Pub. L. 105-304, Sec. 102(b)(1)(C), (D),
    redesignated par. (3) as (5) and transferred it to appear after
    par. (4) and redesignated former par. (5) as (6).
      Subsec. (d). Pub. L. 105-304, Sec. 102(b)(2), added subsec. (d).
      1988 - Subsec. (b)(4), (5). Pub. L. 100-568, Sec. 4(a)(2), added
    par. (4) and redesignated former par. (4) as (5).
      Subsec. (c). Pub. L. 100-568, Sec. 4(a)(3), added subsec. (c).
                     EFFECTIVE DATE OF 1998 AMENDMENT                 
      Amendment by section 102(b)(1) of Pub. L. 105-304 effective Oct.
    28, 1998, except as otherwise provided, and amendment by section
    102(b)(2) of Pub. L. 105-304 effective May 20, 2002, see section
    105(a), (b)(2)(C) of Pub. L. 105-304, set out as a note under
    section 101 of this title.
                     EFFECTIVE DATE OF 1988 AMENDMENT                 
      Amendment by Pub. L. 100-568 effective Mar. 1, 1989, with any
    cause of action arising under this title before such date being
    governed by provisions in effect when cause of action arose, see
    section 13 of Pub. L. 100-568, set out as a note under section 101
    of this title.
-EXEC-
               PROC. NO. 3792. COPYRIGHT EXTENSION: GERMANY           
      Proc. No. 3792, July 12, 1967, 32 F.R. 10341, provided:
      WHEREAS the President is authorized, in accordance with the
    conditions prescribed in Section 9 of Title 17 of the United States
    Code which includes the provisions of the act of Congress approved
    March 4, 1909, 35 Stat. 1075, as amended by the act of September
    25, 1941, 55 Stat. 732, to grant an extension of time for
    fulfillment of the conditions and formalities prescribed by the
    copyright laws of the United States of America, with respect to
    works first produced or published outside the United States of
    America and subject to copyright or to renewal of copyright under
    the laws of the United States of America, by nationals of countries
    which accord substantially equal treatment to citizens of the
    United States of America; and
      WHEREAS satisfactory official assurances have been received that,
    since April 15, 1892, citizens of the United States have been
    entitled to obtain copyright in Germany for their works on
    substantially the same basis as German citizens without the need of
    complying with any formalities, provided such works secured
    protection in the United States; and
      WHEREAS, pursuant to Article 2 of the Law No. 8, Industrial,
    Literary and Artistic Property Rights of Foreign Nations and
    Nationals, promulgated by the Allied High Commission for Germany on
    October 20, 1949, literary or artistic property rights in Germany
    owned by United States nationals at the commencement of or during
    the state of war between Germany and the United States of America
    which were transferred, seized, requisitioned, revoked or otherwise
    impaired by war measures, whether legislative, judicial or
    administrative, were, upon request made prior to October 3, 1950,
    restored to such United States nationals or their legal successors;
    and
      WHEREAS, pursuant to Article 5 of the aforesaid law, any literary
    or artistic property right in Germany owned by a United States
    national at the commencement of or during the state of war between
    Germany and the United States of America was, upon request made
    prior to October 3, 1950, extended in term for a period
    corresponding to the inclusive time from the date of the
    commencement of the state of war, or such later date on which such
    right came in existence, to September 30, 1949; and
      WHEREAS, by virtue of a proclamation by the President of the
    United States of America dated May 25, 1922, 42 Stat. 2271, German
    citizens are and have been entitled to the benefits of the act of
    Congress approved March 4, 1909, 35 Stat. 1075, as amended,
    including the benefits of Section 1(e) of the aforementioned Title
    17 of the United States Code [section 1(e) of former Title 17]; and
      WHEREAS, a letter of February 6, 1950, from the Chancellor of the
    Federal Republic of Germany to the Chairman of the Allied High
    Commission for Germany established the mutual understanding that
    reciprocal copyright relations continued in effect between the
    Federal Republic of Germany and the United States of America:
      NOW, THEREFORE, I, LYNDON B. JOHNSON, President of the United
    States of America, by virtue of the authority vested in me by
    Section 9 of Title 17 of the United States Code [section 9 of
    former Title 17], do declare and proclaim:
      (1) That, with respect to works first produced or published
    outside the United States of America: (a) where the work was
    subject to copyright under the laws of the United States of America
    on or after September 3, 1939, and on or before May 5, 1956, by an
    author or other owner who was then a German citizen; or (b) where
    the work was subject to renewal of copyright under the laws of the
    United States of America on or after September 3, 1939, and on or
    before May 5, 1956, by an author or other person specified in
    Sections 24 and 25 of the aforesaid Title 17 [sections 24 and 25 of
    former Title 17], who was then a German citizen, there has existed
    during several years of the aforementioned period such disruption
    and suspension of facilities essential to compliance with
    conditions and formalities prescribed with respect to such works by
    the copyright law of the United States of America as to bring such
    works within the terms of Section 9(b) of the aforesaid Title 17
    [section 9(b) of former Title 17]; and
      (2) That, in view of the reciprocal treatment accorded to
    citizens of the United States by the Federal Republic of Germany,
    the time within which persons who are presently German citizens may
    comply with such conditions and formalities with respect to such
    works is hereby extended for one year after the date of this
    proclamation.
      It shall be understood that the term of copyright in any case is
    not and cannot be altered or affected by this proclamation. It
    shall also be understood that, as provided by Section 9(b) of Title
    17, United States Code [section 9(b) of former Title 17], no
    liability shall attach under that title for lawful uses made or
    acts done prior to the effective date of this proclamation in
    connection with the above-described works, or with respect to the
    continuance for one year subsequent to such date of any business
    undertaking or enterprise lawfully undertaken prior to such date
    involving expenditure or contractual obligation in connection with
    the exploitation, production, reproduction, circulation or
    performance of any such works.
      IN WITNESS WHEREOF, I have hereunto set my hand this twelfth day
    of July in the year of our Lord nineteen hundred and sixty-seven,
    and of the Independence of the United States of America the one
    hundred and ninety-second.
                                                      Lyndon B. Johnson.
-MISC2-
      PRESIDENTIAL PROCLAMATIONS ISSUED UNDER PREDECESSOR PROVISIONS  
      Section 104 of Pub. L. 94-553 provided that: "All proclamations
    issued by the President under section 1(e) or 9(b) of title 17 as
    it existed on December 31, 1977, or under previous copyright
    statutes of the United States, shall continue in force until
    terminated, suspended, or revised by the President."
-End-
-CITE-
    17 USC Sec. 104A                                            01/03/2007
-EXPCITE-
    TITLE 17 - COPYRIGHTS
    CHAPTER 1 - SUBJECT MATTER AND SCOPE OF COPYRIGHT
-HEAD-
    Sec. 104A. Copyright in restored works
-STATUTE-
      (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;
          (D) a nation adhering to the WIPO Performances and Phonograms
        Treaty; 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;
          (D) adheres to the WIPO Performances and Phonograms Treaty;
        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.
        (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.
-SOURCE-
    (Added Pub. L. 103-182, title III, Sec. 334(a), Dec. 8, 1993, 107
    Stat. 2115; amended Pub. L. 103-465, title V, Sec. 514(a), Dec. 8,
    1994, 108 Stat. 4976; Pub. L. 104-295, Sec. 20(e)(2), Oct. 11,
    1996, 110 Stat. 3529; Pub. L. 105-80, Sec. 2, Nov. 13, 1997, 111
    Stat. 1530; Pub. L. 105-304, title I, Sec. 102(c), Oct. 28, 1998,
    112 Stat. 2862.)
-REFTEXT-
                            REFERENCES IN TEXT                        
      The date of the enactment of the Uruguay Round Agreements Act,
    referred to in subsecs. (d)(3)(A) and (h)(3), is the date of
    enactment of Pub. L. 103-465, which was approved Dec. 8, 1994.
      Section 101(d)(15) of the Uruguay Round Agreements Act, referred
    to in subsec. (e)(1)(D)(i), is classified to section 3511(d)(15) of
    Title 19, Customs Duties.
-MISC1-
                                AMENDMENTS                            
      1998 - Subsec. (h)(1)(A) to (E). Pub. L. 105-304, Sec. 102(c)(1),
    added subpars. (A) to (E) and struck out former subpars. (A) and
    (B) which read as follows:
      "(A) a nation adhering to the Berne Convention or a WTO member
    country; or
      "(B) subject to a Presidential proclamation under subsection
    (g)."
      Subsec. (h)(3). Pub. L. 105-304, Sec. 102(c)(2), amended par. (3)
    generally. Prior to amendment, par. (3) read as follows: "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 member of the Berne Convention; or
        "(C) after such date of enactment becomes subject to a
      proclamation under subsection (g).
    For purposes of this section, a nation that is a member of the
    Berne Convention on the date of the enactment of the Uruguay Round
    Agreements Act shall be construed to become an eligible country on
    such date of enactment."
      Subsec. (h)(6)(E). Pub. L. 105-304, Sec. 102(c)(3), added subpar.
    (E).
      Subsec. (h)(8)(B)(i). Pub. L. 105-304, Sec. 102(c)(4), inserted
    "of which" before "the majority" and struck out "of eligible
    countries" after "domiciliaries".
      Subsec. (h)(9). Pub. L. 105-304, Sec. 102(c)(5), struck out par.
    (9) which read as follows: "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."
      1997 - Subsec. (d)(3)(A). Pub. L. 105-80, Sec. 2(1), amended
    subpar. (A) generally. Prior to amendment, subpar. (A) read as
    follows: "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 derivative work is
      an eligible country on such date, or
        "(ii) before the date of adherence or proclamation, if the
      source country of the derivative work is not an eligible country
      on such date of enactment,
    a reliance party may continue to exploit that 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."
      Subsec. (e)(1)(B)(ii). Pub. L. 105-80, Sec. 2(2), struck out at
    end "Such list shall also be published in the Federal Register on
    an annual basis for the first 2 years after the applicable date of
    restoration."
      Subsec. (h)(2), (3). Pub. L. 105-80, Sec. 2(3), (4), amended
    pars. (2) and (3) generally. Prior to amendment, pars. (2) and (3)
    read as follows:
      "(2) The 'date of restoration' of a restored copyright is the
    later of - 
        "(A) the date on which 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, 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 is a WTO member country, adheres to the Berne
    Convention, or is subject to a proclamation under subsection (g)."
      1996 - Subsec. (h)(3). Pub. L. 104-295 substituted "subsection
    (g)" for "section 104A(g)".
      1994 - Pub. L. 103-465 substituted "Copyright in restored works"
    for "Copyright in certain motion pictures" as section catchline and
    amended text generally, substituting present provisions for
    provisions restoring copyright in certain motion pictures and
    providing for effective date of protection as well as use of
    previously owned copies.
                     EFFECTIVE DATE OF 1998 AMENDMENT                 
      Subsec. (h)(1)(A), (B), (E), (3)(A), (B), (E) of this section and
    amendment by section 102(c)(4), (5) of Pub. L. 105-304 effective
    Oct. 28, 1998, except as otherwise provided, subsec. (h)(1)(C),
    (3)(C) of this section effective Mar. 6, 2002, and subsec.
    (h)(1)(D), (3)(D) of this section and amendment by section
    102(c)(3) of Pub. L. 105-304 effective May 20, 2002, see section
    105(a), (b)(1)(C), (D), (2)(D)-(F) of Pub. L. 105-304, set out as a
    note under section 101 of this title.
                              EFFECTIVE DATE                          
      Section effective on the date the North American Free Trade
    Agreement enters into force with respect to the United States [Jan.
    1, 1994], see section 335(a) of Pub. L. 103-182, set out in an
    Effective Date of 1993 Amendment note under section 1052 of Title
    15, Commerce and Trade.
                URUGUAY ROUND AGREEMENTS: ENTRY INTO FORCE            
      The Uruguay Round Agreements, including the World Trade
    Organization Agreement and agreements annexed to that Agreement, as
    referred to in section 3511(d) of Title 19, Customs Duties, entered
    into force with respect to the United States on Jan. 1, 1995. See
    note set out under section 3511 of Title 19.
-End-
-CITE-
    17 USC Sec. 105                                             01/03/2007
-EXPCITE-
    TITLE 17 - COPYRIGHTS
    CHAPTER 1 - SUBJECT MATTER AND SCOPE OF COPYRIGHT
-HEAD-
    Sec. 105. Subject matter of copyright: United States Government
      works
-STATUTE-
      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.
-SOURCE-
    (Pub. L. 94-553, title I, Sec. 101, Oct. 19, 1976, 90 Stat. 2546.)
-MISC1-
                       HISTORICAL AND REVISION NOTES                   
                         HOUSE REPORT NO. 94-1476                     
      Scope of the Prohibition. The basic premise of section 105 of the
    bill is the same as that of section 8 of the present law [section 8
    of former title 17] - that works produced for the U.S. Government
    by its officers and employees should not be subject to copyright.
    The provision applies the principle equally to unpublished and
    published works.
      The general prohibition against copyright in section 105 applies
    to "any work of the United States Government," which is defined in
    section 101 as "a work prepared by an officer or employee of the
    United States Government as part of that person's official duties."
    Under this definition a Government official or employee would not
    be prevented from securing copyright in a work written at that
    person's own volition and outside his or her duties, even though
    the subject matter involves the Government work or professional
    field of the official or employee. Although the wording of the
    definition of "work of the United States Government" differs
    somewhat from that of the definition of "work made for hire," the
    concepts are intended to be construed in the same way.
      A more difficult and far-reaching problem is whether the
    definition should be broadened to prohibit copyright in works
    prepared under U.S. Government contract or grant. As the bill is
    written, the Government agency concerned could determine in each
    case whether to allow an independent contractor or grantee, to
    secure copyright in works prepared in whole or in part with the use
    of Government funds. The argument that has been made against
    allowing copyright in this situation is that the public should not
    be required to pay a "double subsidy," and that it is inconsistent
    to prohibit copyright in works by Government employees while
    permitting private copyrights in a growing body of works created by
    persons who are paid with Government funds. Those arguing in favor
    of potential copyright protection have stressed the importance of
    copyright as an incentive to creation and dissemination in this
    situation, and the basically different policy considerations,
    applicable to works written by Government employees and those
    applicable to works prepared by private organizations with the use
    of Federal funds.
      The bill deliberately avoids making any sort of outright,
    unqualified prohibition against copyright in works prepared under
    Government contract or grant. There may well be cases where it
    would be in the public interest to deny copyright in the writings
    generated by Government research contracts and the like; it can be
    assumed that, where a Government agency commissions a work for its
    own use merely as an alternative to having one of its own employees
    prepare the work, the right to secure a private copyright would be
    withheld. However, there are almost certainly many other cases
    where the denial of copyright protection would be unfair or would
    hamper the production and publication of important works. Where,
    under the particular circumstances, Congress or the agency involved
    finds that the need to have a work freely available outweighs the
    need of the private author to secure copyright, the problem can be
    dealt with by specific legislation, agency regulations, or
    contractual restrictions.
      The prohibition on copyright protection for United States
    Government works is not intended to have any effect on protection
    of these works abroad. Works of the governments of most other
    countries are copyrighted. There are no valid policy reasons for
    denying such protection to United States Government works in
    foreign countries, or for precluding the Government from making
    licenses for the use of its works abroad.
      The effect of section 105 is intended to place all works of the
    United States Government, published or unpublished, in the public
    domain. This means that the individual Government official or
    employee who wrote the work could not secure copyright in it or
    restrain its dissemination by the Government or anyone else, but it
    also means that, as far as the copyright law is concerned, the
    Government could not restrain the employee or official from
    disseminating the work if he or she chooses to do so. The use of
    the term "work of the United States Government" does not mean that
    a work falling within the definition of that term is the property
    of the U.S. Government.
       LIMITED EXCEPTION FOR NATIONAL TECHNICAL INFORMATION SERVICE   
      At the House hearings in 1975 the U.S. Department of Commerce
    called attention to its National Technical Information Service
    (NTIS), which has a statutory mandate, under Chapter 23 [Sec. 1151
    et seq.] of Title 15 of the U.S. Code, to operate a clearinghouse
    for the collection and dissemination of scientific, technical and
    engineering information. Under its statute, NTIS is required to be
    as self-sustaining as possible, and not to force the general public
    to bear publishing costs that are for private benefit. The
    Department urged an amendment to section 105 that would allow it to
    secure copyright in NTIS publications both in the United States and
    abroad, noting that a precedent exists in the Standard Reference
    Data Act (15 U.S.C. Sec. 290(e) [Sec. 290e]).
      In response to this request the Committee adopted a limited
    exception to the general prohibition in section 105, permitting the
    Secretary of Commerce to "secure copyright for a limited term not
    to exceed five years, on behalf of the United States as author or
    copyright owner" in any NTIS publication disseminated pursuant to
    15 U.S.C. Chapter 23 [Sec. 1151 et seq.]. In order to "secure
    copyright" in a work under this amendment the Secretary would be
    required to publish the work with a copyright notice, and the five-
    year term would begin upon the date of first publication.
      Proposed Saving Clause. Section 8 of the statute now in effect
    [section 8 of former title 17] includes a saving clause intended to
    make clear that the copyright protection of a private work is not
    affected if the work is published by the Government. This provision
    serves a real purpose in the present law because of the ambiguity
    of the undefined term "any publication of the United States
    Government." Section 105 of the bill, however, uses the operative
    term "work of the United States Government" and defines it in such
    a way that privately written works are clearly excluded from the
    prohibition; accordingly, a saving clause becomes superfluous.
      Retention of a saving clause has been urged on the ground that
    the present statutory provision is frequently cited, and that
    having the provision expressly stated in the law would avoid
    questions and explanations. The committee here observes: (1) there
    is nothing in section 105 that would relieve the Government of its
    obligation to secure permission in order to publish a copyrighted
    work; and (2) publication or other use by the Government of a
    private work would not affect its copyright protection in any way.
    The question of use of copyrighted material in documents published
    by the Congress and its Committees is discussed below in connection
    with section 107.
      Works of the United States Postal Service. The intent of section
    105 [this section] is to restrict the prohibition against
    Government copyright to works written by employees of the United
    States Government within the scope of their official duties. In
    accordance with the objectives of the Postal Reorganization Act of
    1970 [Pub. L. 91-375, which enacted title 39, Postal Service], this
    section does not apply to works created by employees of the United
    States Postal Service. In addition to enforcing the criminal
    statutes proscribing the forgery or counterfeiting of postage
    stamps, the Postal Service could, if it chooses, use the copyright
    law to prevent the reproduction of postage stamp designs for
    private or commercial non-postal services (for example, in
    philatelic publications and catalogs, in general advertising, in
    art reproductions, in textile designs, and so forth). However, any
    copyright claimed by the Postal Service in its works, including
    postage stamp designs, would be subject to the same conditions,
    formalities, and time limits as other copyrightable works.
-End-
-CITE-
    17 USC Sec. 106                                             01/03/2007
-EXPCITE-
    TITLE 17 - COPYRIGHTS
    CHAPTER 1 - SUBJECT MATTER AND SCOPE OF COPYRIGHT
-HEAD-
    Sec. 106. Exclusive rights in copyrighted works
-STATUTE-
      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.
-SOURCE-
    (Pub. L. 94-553, title I, Sec. 101, Oct. 19, 1976, 90 Stat. 2546;
    Pub. L. 101-318, Sec. 3(d), July 3, 1990, 104 Stat. 288; Pub. L.
    101-650, title VII, Sec. 704(b)(2), Dec. 1, 1990, 104 Stat. 5134;
    Pub. L. 104-39, Sec. 2, Nov. 1, 1995, 109 Stat. 336; Pub. L. 106-
    44, Sec. 1(g)(2), Aug. 5, 1999, 113 Stat. 222; Pub. L. 107-273,
    div. C, title III, Sec. 13210(4)(A), Nov. 2, 2002, 116 Stat. 1909.)
-MISC1-
                       HISTORICAL AND REVISION NOTES                   
                         HOUSE REPORT NO. 94-1476                     
      General Scope of Copyright. The five fundamental rights that the
    bill gives to copyright owners - the exclusive rights of
    reproduction, adaptation, publication, performance, and display -
    are stated generally in section 106. These exclusive rights, which
    comprise the so-called "bundle of rights" that is a copyright, are
    cumulative and may overlap in some cases. Each of the five
    enumerated rights may be subdivided indefinitely and, as discussed
    below in connection with section 201, each subdivision of an
    exclusive right may be owned and enforced separately.
      The approach of the bill is to set forth the copyright owner's
    exclusive rights in broad terms in section 106, and then to provide
    various limitations, qualifications, or exemptions in the 12
    sections that follow. Thus, everything in section 106 is made
    "subject to sections 107 through 118", and must be read in
    conjunction with those provisions.
      The exclusive rights accorded to a copyright owner under section
    106 are "to do and to authorize" any of the activities specified in
    the five numbered clauses. Use of the phrase "to authorize" is
    intended to avoid any questions as to the liability of contributory
    infringers. For example, a person who lawfully acquires an
    authorized copy of a motion picture would be an infringer if he or
    she engages in the business of renting it to others for purposes of
    unauthorized public performance.
      Rights of Reproduction, Adaptation, and Publication. The first
    three clauses of section 106, which cover all rights under a
    copyright except those of performance and display, extend to every
    kind of copyrighted work. The exclusive rights encompassed by these
    clauses, though closely related, are independent; they can
    generally be characterized as rights of copying, recording,
    adaptation, and publishing. A single act of infringement may
    violate all of these rights at once, as where a publisher
    reproduces, adapts, and sells copies of a person's copyrighted work
    as part of a publishing venture. Infringement takes place when any
    one of the rights is violated: where, for example, a printer
    reproduces copies without selling them or a retailer sells copies
    without having anything to do with their reproduction. The
    references to "copies or phonorecords," although in the plural, are
    intended here and throughout the bill to include the singular (1
    U.S.C. Sec. 1).
      Reproduction. - Read together with the relevant definitions in
    section 101, the right "to reproduce the copyrighted work in copies
    or phonorecords" means the right to produce a material object in
    which the work is duplicated, transcribed, imitated, or simulated
    in a fixed form from which it can be "perceived, reproduced, or
    otherwise communicated, either directly or with the aid of a
    machine or device." As under the present law, a copyrighted work
    would be infringed by reproducing it in whole or in any substantial
    part, and by duplicating it exactly or by imitation or simulation.
    Wide departures or variations from the copyrighted work would still
    be an infringement as long as the author's "expression" rather than
    merely the author's "ideas" are taken. An exception to this general
    principle, applicable to the reproduction of copyrighted sound
    recordings, is specified in section 114.
      "Reproduction" under clause (1) of section 106 is to be
    distinguished from "display" under clause (5). For a work to be
    "reproduced," its fixation in tangible form must be "sufficiently
    permanent or stable to permit it to be perceived, reproduced, or
    otherwise communicated for a period of more than transitory
    duration." Thus, the showing of images on a screen or tube would
    not be a violation of clause (1), although it might come within the
    scope of clause (5).
      Preparation of Derivative Works. - The exclusive right to prepare
    derivative works, specified separately in clause (2) of section
    106, overlaps the exclusive right of reproduction to some extent.
    It is broader than that right, however, in the sense that
    reproduction requires fixation in copies or phonorecords, whereas
    the preparation of a derivative work, such as a ballet, pantomime,
    or improvised performance, may be an infringement even though
    nothing is ever fixed in tangible form.
      To be an infringement the "derivative work" must be "based upon
    the copyrighted work," and the definition in section 101 refers to
    "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." Thus, to constitute
    a violation of section 106(2), the infringing work must incorporate
    a portion of the copyrighted work in some form; for example, a
    detailed commentary on a work or a programmatic musical composition
    inspired by a novel would not normally constitute infringements
    under this clause.
      Use in Information Storage and Retrieval Systems. - As section
    117 declares explicitly, the bill is not intended to alter the
    present law with respect to the use of copyrighted works in
    computer systems.
      Public Distribution. - Clause (3) of section 106 establishes the
    exclusive right of publication: The right "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." Under this
    provision the copyright owner would have the right to control the
    first public distribution of an authorized copy or phonorecord of
    his work, whether by sale, gift, loan, or some rental or lease
    arrangement. Likewise, any unauthorized public distribution of
    copies or phonorecords that were unlawfully made would be an
    infringement. As section 109 makes clear, however, the copyright
    owner's rights under section 106(3) cease with respect to a
    particular copy or phonorecord once he has parted with ownership of
    it.
      Rights of Public Performance and Display. Performing Rights and
    the "For Profit" Limitation. - The right of public performance
    under section 106(4) extends to "literary, musical, dramatic, and
    choreographic works, pantomimes, and motion pictures and other
    audiovisual works and sound recordings" and, unlike the equivalent
    provisions now in effect, is not limited by any "for profit"
    requirement. The approach of the bill, as in many foreign laws, is
    first to state the public performance right in broad terms, and
    then to provide specific exemptions for educational and other
    nonprofit uses.
      This approach is more reasonable than the outright exemption of
    the 1909 statute. The line between commercial and "nonprofit"
    organizations is increasingly difficult to draw. Many "non-profit"
    organizations are highly subsidized and capable of paying
    royalties, and the widespread public exploitation of copyrighted
    works by public broadcasters and other noncommercial organizations
    is likely to grow. In addition to these trends, it is worth noting
    that performances and displays are continuing to supplant markets
    for printed copies and that in the future a broad "not for profit"
    exemption could not only hurt authors but could dry up their
    incentive to write.
      The exclusive right of public performance is expanded to include
    not only motion pictures, including works recorded on film, video
    tape, and video disks, but also audiovisual works such as
    filmstrips and sets of slides. This provision of section 106(4),
    which is consistent with the assimilation of motion pictures to
    audiovisual works throughout the bill, is also related to
    amendments of the definitions of "display" and "perform" discussed
    below. The important issue of performing rights in sound recordings
    is discussed in connection with section 114.
      Right of Public Display. - Clause (5) of section 106 represents
    the first explicit statutory recognition in American copyright law
    of an exclusive right to show a copyrighted work, or an image of
    it, to the public. The existence or extent of this right under the
    present statute is uncertain and subject to challenge. The bill
    would give the owners of copyright in "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, the exclusive right "to display
    the copyrighted work publicly."
      Definitions. Under the definitions of "perform," "display,"
    "publicly," and "transmit" in section 101, the concepts of public
    performance and public display cover not only the initial rendition
    or showing, but also any further act by which that rendition or
    showing is transmitted or communicated to the public. Thus, for
    example: a singer is performing when he or she sings a song; a
    broadcasting network is performing when it transmits his or her
    performance (whether simultaneously or from records); a local
    broadcaster is performing when it transmits the network broadcast;
    a cable television system is performing when it retransmits the
    broadcast to its subscribers; and any individual is performing
    whenever he or she plays a phonorecord embodying the performance or
    communicates the performance by turning on a receiving set.
    Although any act by which the initial performance or display is
    transmitted, repeated, or made to recur would itself be a
    "performance" or "display" under the bill, it would not be
    actionable as an infringement unless it were done "publicly," as
    defined in section 101. Certain other performances and displays, in
    addition to those that are "private," are exempted or given
    qualified copyright control under sections 107 through 118.
      To "perform" a work, under the definition in section 101,
    includes reading a literary work aloud, singing or playing music,
    dancing a ballet or other choreographic work, and acting out a
    dramatic work or pantomime. A performance may be accomplished
    "either directly or by means of any device or process," including
    all kinds of equipment for reproducing or amplifying sounds or
    visual images, any sort of transmitting apparatus, any type of
    electronic retrieval system, and any other techniques and systems
    not yet in use or even invented.
      The definition of "perform" in relation to "a motion picture or
    other audiovisual work" is "to show its images in any sequence or
    to make the sounds accompanying it audible." The showing of
    portions of a motion picture, filmstrip, or slide set must
    therefore be sequential to constitute a "performance" rather than a
    "display", but no particular order need be maintained. The purely
    aural performance of a motion picture sound track, or of the sound
    portions of an audiovisual work, would constitute a performance of
    the "motion picture or other audiovisual work"; but, where some of
    the sounds have been reproduced separately on phonorecords, a
    performance from the phonorecord would not constitute performance
    of the motion picture or audiovisual work.
      The corresponding definition of "display" covers any showing of a
    "copy" of the work, "either directly or by means of a film, slide,
    television image, or any other device or process." Since "copies"
    are defined as including the material object "in which the work is
    first fixed," the right of public display applies to original works
    of art as well as to reproductions of them. With respect to motion
    pictures and other audiovisual works, it is a "display" (rather
    than a "performance") to show their "individual images
    nonsequentially." In addition to the direct showings of a copy of a
    work, "display" would include the projection of an image on a
    screen or other surface by any method, the transmission of an image
    by electronic or other means, and the showing of an image on a
    cathode ray tube, or similar viewing apparatus connected with any
    sort of information storage and retrieval system.
      Under clause (1) of the definition of "publicly" in section 101,
    a performance or display is "public" if it takes place "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." One of the principal purposes of the
    definition was to make clear that, contrary to the decision in
    Metro-Goldwyn-Mayer Distributing Corp. v. Wyatt, 21 C.O.Bull. 203
    (D.Md.1932), performances in "semipublic" places such as clubs,
    lodges, factories, summer camps, and schools are "public
    performances" subject to copyright control. The term "a family" in
    this context would include an individual living alone, so that a
    gathering confined to the individual's social acquaintances would
    normally be regarded as private. Routine meetings of businesses and
    governmental personnel would be excluded because they do not
    represent the gathering of a "substantial number of persons."
      Clause (2) of the definition of "publicly" in section 101 makes
    clear that the concepts of public performance and public display
    include not only performances and displays that occur initially in
    a public place, but also acts that transmit or otherwise
    communicate a performance or display of the work to the public by
    means of any device or process. The definition of "transmit" - to
    communicate a performance or display "by any device or process
    whereby images or sound are received beyond the place from which
    they are sent" - is broad enough to include all conceivable forms
    and combinations of wired or wireless communications media,
    including but by no means limited to radio and television
    broadcasting as we know them. Each and every method by which the
    images or sounds comprising a performance or display are picked up
    and conveyed is a "transmission," and if the transmission reaches
    the public in my [any] form, the case comes within the scope of
    clauses (4) or (5) of section 106.
      Under the bill, as under the present law, a performance made
    available by transmission to the public at large is "public" even
    though the recipients are not gathered in a single place, and even
    if there is no proof that any of the potential recipients was
    operating his receiving apparatus at the time of the transmission.
    The same principles apply whenever the potential recipients of the
    transmission represent a limited segment of the public, such as the
    occupants of hotel rooms or the subscribers of a cable television
    service. Clause (2) of the definition of "publicly" is applicable
    "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."
                                AMENDMENTS                            
      2002 - Pub. L. 107-273 substituted "122" for "121" in
    introductory provisions.
      1999 - Pub. L. 106-44 substituted "121" for "120" in introductory
    provisions.
      1995 - Par. (6). Pub. L. 104-39 added par. (6).
      1990 - Pub. L. 101-650 substituted "120" for "119" in
    introductory provisions.
      Pub. L. 101-318 substituted "119" for "118" in introductory
    provisions.
                     EFFECTIVE DATE OF 1995 AMENDMENT                 
      Amendment by Pub. L. 104-39 effective 3 months after Nov. 1,
    1995, see section 6 of Pub. L. 104-39, set out as a note under
    section 101 of this title.
                     EFFECTIVE DATE OF 1990 AMENDMENTS                 
      Amendment by Pub. L. 101-650 applicable to any architectural work
    created on or after Dec. 1, 1990, and any architectural work, that,
    on Dec. 1, 1990, is unconstructed and embodied in unpublished plans
    or drawings, except that protection for such architectural work
    under this title terminates on Dec. 31, 2002, unless the work is
    constructed by that date, see section 706 of Pub. L. 101-650, set
    out as a note under section 101 of this title.
      Section 3(e)(3) of Pub. L. 101-318 provided that: "The amendment
    made by subsection (d) [amending this section] shall be effective
    as of November 16, 1988."
-End-
-CITE-
    17 USC Sec. 106A                                            01/03/2007
-EXPCITE-
    TITLE 17 - COPYRIGHTS
    CHAPTER 1 - SUBJECT MATTER AND SCOPE OF COPYRIGHT
-HEAD-
    Sec. 106A. Rights of certain authors to attribution and integrity
-STATUTE-
      (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 a 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.
-SOURCE-
    (Added Pub. L. 101-650, title VI, Sec. 603(a), Dec. 1, 1990, 104
    Stat. 5128.)
-REFTEXT-
                            REFERENCES IN TEXT                        
      Section 610(a) of the Visual Artists Rights Act of 1990 [Pub. L.
    101-650], referred to in subsec. (d), is set out as an Effective
    Date note below.
-MISC1-
                              EFFECTIVE DATE                          
      Section 610 of title VI of Pub. L. 101-650 provided that:
      "(a) In General. - Subject to subsection (b) and except as
    provided in subsection (c), this title [enacting this section,
    amending sections 101, 107, 113, 301, 411, 412, 501, and 506 of
    this title, and enacting provisions set out as notes under this
    section and section 101 of this title] and the amendments made by
    this title take effect 6 months after the date of the enactment of
    this Act [Dec. 1, 1990].
      "(b) Applicability. - The rights created by section 106A of title
    17, United States Code, shall apply to - 
        "(1) works created before the effective date set forth in
      subsection (a) but title to which has not, as of such effective
      date, been transferred from the author, and
        "(2) works created on or after such effective date, but shall
      not apply to any destruction, distortion, mutilation, or other
      modification (as described in section 106A(a)(3) of such title)
      of any work which occurred before such effective date.
      "(c) Section 608. - Section 608 [set out below] takes effect on
    the date of the enactment of this Act."
                        STUDIES BY COPYRIGHT OFFICE                    
      Section 608 of Pub. L. 101-650 provided that:
      "(a) Study on Waiver of Rights Provision. - 
        "(1) Study. - The Register of Copyrights shall conduct a study
      on the extent to which rights conferred by subsection (a) of
      section 106A of title 17, United States Code, have been waived
      under subsection (e)(1) of such section.
        "(2) Report to congress. - Not later than 2 years after the
      date of the enactment of this Act [Dec. 1, 1990], the Register of
      Copyrights shall submit to the Congress a report on the progress
      of the study conducted under paragraph (1). Not later than 5
      years after such date of enactment, the Register of Copyrights
      shall submit to the Congress a final report on the results of the
      study conducted under paragraph (1), and any recommendations that
      the Register may have as a result of the study.
      "(b) Study on Resale Royalties. - 
        "(1) Nature of study. - The Register of Copyrights, in
      consultation with the Chair of the National Endowment for the
      Arts, shall conduct a study on the feasibility of implementing - 
          "(A) a requirement that, after the first sale of a work of
        art, a royalty on any resale of the work, consisting of a
        percentage of the price, be paid to the author of the work; and
          "(B) other possible requirements that would achieve the
        objective of allowing an author of a work of art to share
        monetarily in the enhanced value of that work.
        "(2) Groups to be consulted. - The study under paragraph (1)
      shall be conducted in consultation with other appropriate
      departments and agencies of the United States, foreign
      governments, and groups involved in the creation, exhibition,
      dissemination, and preservation of works of art, including
      artists, art dealers, collectors of fine art, and curators of art
      museums.
        "(3) Report to congress. - Not later than 18 months after the
      date of the enactment of this Act [Dec. 1, 1990], the Register of
      Copyrights shall submit to the Congress a report containing the
      results of the study conducted under this subsection."
-End-
-CITE-
    17 USC Sec. 107                                             01/03/2007
-EXPCITE-
    TITLE 17 - COPYRIGHTS
    CHAPTER 1 - SUBJECT MATTER AND SCOPE OF COPYRIGHT
-HEAD-
    Sec. 107. Limitations on exclusive rights: Fair use
-STATUTE-
      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.
-SOURCE-
    (Pub. L. 94-553, title I, Sec. 101, Oct. 19, 1976, 90 Stat. 2546;
    Pub. L. 101-650, title VI, Sec. 607, Dec. 1, 1990, 104 Stat. 5132;
    Pub. L. 102-492, Oct. 24, 1992, 106 Stat. 3145.)
-MISC1-
                       HISTORICAL AND REVISION NOTES                   
                         HOUSE REPORT NO. 94-1476                     
      General Background of the Problem. The judicial doctrine of fair
    use, one of the most important and well-established limitations on
    the exclusive right of copyright owners, would be given express
    statutory recognition for the first time in section 107. The claim
    that a defendant's acts constituted a fair use rather than an
    infringement has been raised as a defense in innumerable copyright
    actions over the years, and there is ample case law recognizing the
    existence of the doctrine and applying it. The examples enumerated
    at page 24 of the Register's 1961 Report, while by no means
    exhaustive, give some idea of the sort of activities the courts
    might regard as fair use under the circumstances: "quotation of
    excerpts in a review or criticism for purposes of illustration or
    comment; quotation of short passages in a scholarly or technical
    work, for illustration or clarification of the author's
    observations; use in a parody of some of the content of the work
    parodied; summary of an address or article, with brief quotations,
    in a news report; reproduction by a library of a portion of a work
    to replace part of a damaged copy; reproduction by a teacher or
    student of a small part of a work to illustrate a lesson;
    reproduction of a work in legislative or judicial proceedings or
    reports; incidental and fortuitous reproduction, in a newsreel or
    broadcast, of a work located in the scene of an event being
    reported."
      Although the courts have considered and ruled upon the fair use
    doctrine over and over again, no real definition of the concept has
    ever emerged. Indeed, since the doctrine is an equitable rule of
    reason, no generally applicable definition is possible, and each
    case raising the question must be decided on its own facts. On the
    other hand, the courts have evolved a set of criteria which, though
    in no case definitive or determinative, provide some gauge for
    balancing the equities. These criteria have been stated in various
    ways, but essentially they can all be reduced to the four standards
    which have been adopted in section 107: "(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."
      These criteria are relevant in determining whether the basic
    doctrine of fair use, as stated in the first sentence of section
    107, applies in a particular case: "Notwithstanding the provisions
    of section 106, the fair use of a copyrighted work, including such
    use by reproduction in copies or phonorecords or by any other means
    specified by that section, for purposes such as criticism, comment,
    news reporting, teaching (including multiple copies for classroom
    use), scholarship, or research, is not an infringement of
    copyright."
      The specific wording of section 107 as it now stands is the
    result of a process of accretion, resulting from the long
    controversy over the related problems of fair use and the
    reproduction (mostly by photocopying) of copyrighted material for
    educational and scholarly purposes. For example, the reference to
    fair use "by reproduction in copies or phonorecords or by any other
    means" is mainly intended to make clear that the doctrine has as
    much application to photocopying and taping as to older forms of
    use; it is not intended to give these kinds of reproduction any
    special status under the fair use provision or to sanction any
    reproduction beyond the normal and reasonable limits of fair use.
    Similarly, the newly-added reference to "multiple copies for
    classroom use" is a recognition that, under the proper
    circumstances of fairness, the doctrine can be applied to
    reproductions of multiple copies for the members of a class.
      The Committee has amended the first of the criteria to be
    considered - "the purpose and character of the use" - to state
    explicitly that this factor includes a consideration of "whether
    such use is of a commercial nature or is for non-profit educational
    purposes." This amendment is not intended to be interpreted as any
    sort of not-for-profit limitation on educational uses of
    copyrighted works. It is an express recognition that, as under the
    present law, the commercial or non-profit character of an activity,
    while not conclusive with respect to fair use, can and should be
    weighed along with other factors in fair use decisions.
      General Intention Behind the Provision. The statement of the fair
    use doctrine in section 107 offers some guidance to users in
    determining when the principles of the doctrine apply. However, the
    endless variety of situations and combinations of circumstances
    that can rise in particular cases precludes the formulation of
    exact rules in the statute. The bill endorses the purpose and
    general scope of the judicial doctrine of fair use, but there is no
    disposition to freeze the doctrine in the statute, especially
    during a period of rapid technological change. Beyond a very broad
    statutory explanation of what fair use is and some of the criteria
    applicable to it, the courts must be free to adapt the doctrine to
    particular situations on a case-by-case basis. Section 107 is
    intended to restate the present judicial doctrine of fair use, not
    to change, narrow, or enlarge it in any way.
      Intention as to Classroom Reproduction. Although the works and
    uses to which the doctrine of fair use is applicable are as broad
    as the copyright law itself, most of the discussion of section 107
    has centered around questions of classroom reproduction,
    particularly photocopying. The arguments on the question are
    summarized at pp. 30-31 of this Committee's 1967 report (H.R. Rep.
    No. 83, 90th Cong., 1st Sess.), and have not changed materially in
    the intervening years.
      The Committee also adheres to its earlier conclusion, that "a
    specific exemption freeing certain reproductions of copyrighted
    works for educational and scholarly purposes from copyright control
    is not justified." At the same time the Committee recognizes, as it
    did in 1967, that there is a "need for greater certainty and
    protection for teachers." In an effort to meet this need the
    Committee has not only adopted further amendments to section 107,
    but has also amended section 504(c) to provide innocent teachers
    and other non-profit users of copyrighted material with broad
    insulation against unwarranted liability for infringement. The
    latter amendments are discussed below in connection with Chapter 5
    of the bill [Sec. 501 et seq. of this title].
      In 1967 the Committee also sought to approach this problem by
    including, in its report, a very thorough discussion of "the
    considerations lying behind the four criteria listed in the amended
    section 107, in the context of typical classroom situations arising
    today." This discussion appeared on pp. 32-35 of the 1967 report,
    and with some changes has been retained in the Senate report on S.
    22 (S. Rep. No. 94-473, pp. 63-65). The Committee has reviewed this
    discussion, and considers that it still has value as an analysis of
    various aspects of the problem.
      At the Judiciary Subcommittee hearings in June 1975, Chairman
    Kastenmeier and other members urged the parties to meet together
    independently in an effort to achieve a meeting of the minds as to
    permissible educational uses of copyrighted material. The response
    to these suggestions was positive, and a number of meetings of
    three groups, dealing respectively with classroom reproduction of
    printed material, music, and audio-visual material, were held
    beginning in September 1975.
      In a joint letter to Chairman Kastenmeier, dated March 19, 1976,
    the representatives of the Ad Hoc Committee of Educational
    Institutions and Organizations on Copyright Law Revision, and of
    the Authors League of America, Inc., and the Association of
    American Publishers, Inc., stated:
        You may remember that in our letter of March 8, 1976 we told
      you that the negotiating teams representing authors and
      publishers and the Ad Hoc Group had reached tentative agreement
      on guidelines to insert in the Committee Report covering
      educational copying from books and periodicals under Section 107
      of H.R. 2223 and S. 22 [this section], and that as part of that
      tentative agreement each side would accept the amendments to
      Sections 107 and 504 [this section and section 504 of this title]
      which were adopted by your Subcommittee on March 3, 1976.
        We are now happy to tell you that the agreement has been
      approved by the principals and we enclose a copy herewith. We had
      originally intended to translate the agreement into language
      suitable for inclusion in the legislative report dealing with
      Section 107 [this section], but we have since been advised by
      committee staff that this will not be necessary.
        As stated above, the agreement refers only to copying from
      books and periodicals, and it is not intended to apply to musical
      or audiovisual works.
      The full text of the agreement is as follows:
      AGREEMENT ON GUIDELINES FOR CLASSROOM COPYING IN NOT-FOR-PROFIT
                         EDUCATIONAL INSTITUTIONS
                   WITH RESPECT TO BOOKS AND PERIODICALS               
        The purpose of the following guidelines is to state the minimum
      and not the maximum standards of educational fair use under
      Section 107 of H.R. 2223 [this section]. The parties agree that
      the conditions determining the extent of permissible copying for
      educational purposes may change in the future; that certain types
      of copying permitted under these guidelines may not be
      permissible in the future; and conversely that in the future
      other types of copying not permitted under these guidelines may
      be permissible under revised guidelines.
        Moreover, the following statement of guidelines is not intended
      to limit the types of copying permitted under the standards of
      fair use under judicial decision and which are stated in Section
      107 of the Copyright Revision Bill [this section]. There may be
      instances in which copying which does not fall within the
      guidelines stated below may nonetheless be permitted under the
      criteria of fair use.
                                GUIDELINES                            
      I. Single Copying for Teachers
        A single copy may be made of any of the following by or for a
      teacher at his or her individual request for his or her scholarly
      research or use in teaching or preparation to teach a class:
        A. A chapter from a book;
        B. An article from a periodical or newspaper;
        C. A short story, short essay or short poem, whether or not
      from a collective work;
        D. A chart, graph, diagram, drawing, cartoon or picture from a
      book, periodical, or newspaper;
      II. Multiple Copies for Classroom Use
        Multiple copies (not to exceed in any event more than one copy
      per pupil in a course) may be made by or for the teacher giving
      the course for classroom use or discussion; provided that:
        A. The copying meets the tests of brevity and spontaneity as
      defined below; and,
        B. Meets the cumulative effect test as defined below; and
        C. Each copy includes a notice of copyright.
      Definitions
          Brevity
        (i) Poetry: (a) A complete poem if less than 250 words and if
      printed on not more than two pages or, (b) from a longer poem, an
      excerpt of not more than 250 words.
        (ii) Prose: (a) Either a complete article, story or essay of
      less than 2,500 words, or (b) an excerpt from any prose work of
      not more than 1,000 words or 10% of the work, whichever is less,
      but in any event a minimum of 500 words.
        [Each of the numerical limits stated in "i" and "ii" above may
      be expanded to permit the completion of an unfinished line of a
      poem or of an unfinished prose paragraph.]
        (iii) Illustration: One chart, graph, diagram, drawing, cartoon
      or picture per book or per periodical issue.
        (iv) "Special" works: Certain works in poetry, prose or in
      "poetic prose" which often combine language with illustrations
      and which are intended sometimes for children and at other times
      for a more general audience fall short of 2,500 words in their
      entirety. Paragraph "ii" above notwithstanding such "special
      works" may not be reproduced in their entirety; however, an
      excerpt comprising not more than two of the published pages of
      such special work and containing not more than 10% of the words
      found in the text thereof, may be reproduced.
          Spontaneity
        (i) The copying is at the instance and inspiration of the
      individual teacher, and
        (ii) The inspiration and decision to use the work and the
      moment of its use for maximum teaching effectiveness are so close
      in time that it would be unreasonable to expect a timely reply to
      a request for permission.
          Cumulative Effect
        (i) The copying of the material is for only one course in the
      school in which the copies are made.
        (ii) Not more than one short poem, article, story, essay or two
      excerpts may be copied from the same author, nor more than three
      from the same collective work or periodical volume during one
      class term.
        (iii) There shall not be more than nine instances of such
      multiple copying for one course during one class term.
        [The limitations stated in "ii" and "iii" above shall not apply
      to current news periodicals and newspapers and current news
      sections of other periodicals.]
      III. Prohibitions as to I and II Above
        Notwithstanding any of the above, the following shall be
      prohibited:
        (A) Copying shall not be used to create or to replace or
      substitute for anthologies, compilations or collective works.
      Such replacement or substitution may occur whether copies of
      various works or excerpts therefrom are accumulated or reproduced
      and used separately.
        (B) There shall be no copying of or from works intended to be
      "consumable" in the course of study or of teaching. These include
      workbooks, exercises, standardized tests and test booklets and
      answer sheets and like consumable material.
        (C) Copying shall not:
          (a) substitute for the purchase of books, publishers'
        reprints or periodicals;
          (b) be directed by higher authority;
          (c) be repeated with respect to the same item by the same
        teacher from term to term.
        (D) No charge shall be made to the student beyond the actual
      cost of the photocopying.
        Agreed March 19, 1976.
        Ad Hoc Committee on Copyright Law Revision:
                                           By Sheldon Elliott Steinbach.
        Author-Publisher Group:
        Authors League of America:
                                                 By Irwin Karp, Counsel.
        Association of American Publishers, Inc.:
                                               By Alexander C. Hoffman. 
                                          Chairman, Copyright Committee.
      In a joint letter dated April 30, 1976, representatives of the
    Music Publishers' Association of the United States, Inc., the
    National Music Publishers' Association, Inc., the Music Teachers
    National Association, the Music Educators National Conference, the
    National Association of Schools of Music, and the Ad Hoc Committee
    on Copyright Law Revision, wrote to Chairman Kastenmeier as
    follows:
        During the hearings on H.R. 2223 in June 1975, you and several
      of your subcommittee members suggested that concerned groups
      should work together in developing guidelines which would be
      helpful to clarify Section 107 of the bill [this section].
        Representatives of music educators and music publishers delayed
      their meetings until guidelines had been developed relative to
      books and periodicals. Shortly after that work was completed and
      those guidelines were forwarded to your subcommittee,
      representatives of the undersigned music organizations met
      together with representatives of the Ad Hoc Committee on
      Copyright Law Revision to draft guidelines relative to music.
        We are very pleased to inform you that the discussions thus
      have been fruitful on the guidelines which have been developed.
      Since private music teachers are an important factor in music
      education, due consideration has been given to the concerns of
      that group.
        We trust that this will be helpful in the report on the bill to
      clarify Fair Use as it applies to music.
      The text of the guidelines accompanying this letter is as
    follows:
                 GUIDELINES FOR EDUCATIONAL USES OF MUSIC             
        The purpose of the following guidelines is to state the minimum
      and not the maximum standards of educational fair use under
      Section 107 of H.R. 2223 [this section]. The parties agree that
      the conditions determining the extent of permissible copying for
      educational purposes may change in the future; that certain types
      of copying permitted under these guidelines may not be
      permissible in the future, and conversely that in the future
      other types of copying not permitted under these guidelines may
      be permissible under revised guidelines.
        Moreover, the following statement of guidelines is not intended
      to limit the types of copying permitted under the standards of
      fair use under judicial decision and which are stated in Section
      107 of the Copyright Revision Bill [this section]. There may be
      instances in which copying which does not fall within the
      guidelines stated below may nonetheless be permitted under the
      criteria of fair use.
      A. Permissible Uses
        1. Emergency copying to replace purchased copies which for any
      reason are not available for an imminent performance provided
      purchased replacement copies shall be substituted in due course.
        2. (a) For academic purposes other than performance, multiple
      copies of excerpts of works may be made, provided that the
      excerpts do not comprise a part of the whole which would
      constitute a performable unit such as a section, movement or
      aria, but in no case more than 10% of the whole work. The number
      of copies shall not exceed one copy per pupil.
        (b) For academic purposes other than performance, a single copy
      of an entire performable unit (section, movement, aria, etc.)
      that is, (1) confirmed by the copyright proprietor to be out of
      print or (2) unavailable except in a larger work, may be made by
      or for a teacher solely for the purpose of his or her scholarly
      research or in preparation to teach a class.
        3. Printed copies which have been purchased may be edited or
      simplified provided that the fundamental character of the work is
      not distorted or the lyrics, if any, altered or lyrics added if
      none exist.
        4. A single copy of recordings of performances by students may
      be made for evaluation or rehearsal purposes and may be retained
      by the educational institution or individual teacher.
        5. A single copy of a sound recording (such as a tape, disc or
      cassette) of copyrighted music may be made from sound recordings
      owned by an educational institution or an individual teacher for
      the purpose of constructing aural exercises or examinations and
      may be retained by the educational institution or individual
      teacher. (This pertains only to the copyright of the music itself
      and not to any copyright which may exist in the sound recording.)
      B. Prohibitions
        1. Copying to create or replace or substitute for anthologies,
      compilations or collective works.
        2. Copying of or from works intended to be "consumable" in the
      course of study or of teaching such as workbooks, exercises,
      standardized tests and answer sheets and like material.
        3. Copying for the purpose of performance, except as in A(1)
      above.
        4. Copying for the purpose of substituting for the purchase of
      music, except as in A(1) and A(2) above.
        5. Copying without inclusion of the copyright notice which
      appears on the printed copy.
      The problem of off-the-air taping for nonprofit classroom use of
    copyrighted audiovisual works incorporated in radio and television
    broadcasts has proved to be difficult to resolve. The Committee
    believes that the fair use doctrine has some limited application in
    this area, but it appears that the development of detailed
    guidelines will require a more thorough exploration than has so far
    been possible of the needs and problems of a number of different
    interests affected, and of the various legal problems presented.
    Nothing in section 107 or elsewhere in the bill is intended to
    change or prejudge the law on the point. On the other hand, the
    Committee is sensitive to the importance of the problem, and urges
    the representatives of the various interests, if possible under the
    leadership of the Register of Copyrights, to continue their
    discussions actively and in a constructive spirit. If it would be
    helpful to a solution, the Committee is receptive to undertaking
    further consideration of the problem in a future Congress.
      The Committee appreciates and commends the efforts and the
    cooperative and reasonable spirit of the parties who achieved the
    agreed guidelines on books and periodicals and on music.
    Representatives of the American Association of University
    Professors and of the Association of American Law Schools have
    written to the Committee strongly criticizing the guidelines,
    particularly with respect to multiple copying, as being too
    restrictive with respect to classroom situations at the university
    and graduate level. However, the Committee notes that the Ad Hoc
    group did include representatives of higher education, that the
    stated "purpose of the * * * guidelines is to state the minimum and
    not the maximum standards of educational fair use" and that the
    agreement acknowledges "there may be instances in which copying
    which does not fall within the guidelines * * * may nonetheless be
    permitted under the criteria of fair use."
      The Committee believes the guidelines are a reasonable
    interpretation of the minimum standards of fair use. Teachers will
    know that copying within the guidelines is fair use. Thus, the
    guidelines serve the purpose of fulfilling the need for greater
    certainty and protection for teachers. The Committee expresses the
    hope that if there are areas where standards other than these
    guidelines may be appropriate, the parties will continue their
    efforts to provide additional specific guidelines in the same
    spirit of good will and give and take that has marked the
    discussion of this subject in recent months.
      Reproduction and Uses for Other Purposes. The concentrated
    attention given the fair use provision in the context of classroom
    teaching activities should not obscure its application in other
    areas. It must be emphasized again that the same general standards
    of fair use are applicable to all kinds of uses of copyrighted
    material, although the relative weight to be given them will differ
    from case to case.
      The fair use doctrine would be relevant to the use of excerpts
    from copyrighted works in educational broadcasting activities not
    exempted under section 110(2) or 112, and not covered by the
    licensing provisions of section 118. In these cases the factors to
    be weighed in applying the criteria of this section would include
    whether the performers, producers, directors, and others
    responsible for the broadcast were paid, the size and nature of the
    audience, the size and number of excerpts taken and, in the case of
    recordings made for broadcast, the number of copies reproduced and
    the extent of their reuse or exchange. The availability of the fair
    use doctrine to educational broadcasters would be narrowly
    circumscribed in the case of motion pictures and other audiovisual
    works, but under appropriate circumstances it could apply to the
    nonsequential showing of an individual still or slide, or to the
    performance of a short excerpt from a motion picture for criticism
    or comment.
      Another special instance illustrating the application of the fair
    use doctrine pertains to the making of copies or phonorecords of
    works in the special forms needed for the use of blind persons.
    These special forms, such as copies in Braille and phonorecords of
    oral readings (talking books), are not usually made by the
    publishers for commercial distribution. For the most part, such
    copies and phonorecords are made by the Library of Congress'
    Division for the Blind and Physically Handicapped with permission
    obtained from the copyright owners, and are circulated to blind
    persons through regional libraries covering the nation. In
    addition, such copies and phonorecords are made locally by
    individual volunteers for the use of blind persons in their
    communities, and the Library of Congress conducts a program for
    training such volunteers. While the making of multiple copies or
    phonorecords of a work for general circulation requires the
    permission of the copyright owner, a problem addressed in section
    710 of the bill, the making of a single copy or phonorecord by an
    individual as a free service for blind persons would properly be
    considered a fair use under section 107.
      A problem of particular urgency is that of preserving for
    posterity prints of motion pictures made before 1942. Aside from
    the deplorable fact that in a great many cases the only existing
    copy of a film has been deliberately destroyed, those that remain
    are in immediate danger of disintegration; they were printed on
    film stock with a nitrate base that will inevitably decompose in
    time. The efforts of the Library of Congress, the American Film
    Institute, and other organizations to rescue and preserve this
    irreplaceable contribution to our cultural life are to be
    applauded, and the making of duplicate copies for purposes of
    archival preservation certainly falls within the scope of "fair
    use."
      When a copyrighted work contains unfair, inaccurate, or
    derogatory information concerning an individual or institution, the
    individual or institution may copy and reproduce such parts of the
    work as are necessary to permit understandable comment on the
    statements made in the work.
      The Committee has considered the question of publication, in
    Congressional hearings and documents, of copyrighted material.
    Where the length of the work or excerpt published and the number of
    copies authorized are reasonable under the circumstances, and the
    work itself is directly relevant to a matter of legitimate
    legislative concern, the Committee believes that the publication
    would constitute fair use.
      During the consideration of the revision bill in the 94th
    Congress it was proposed that independent newsletters, as
    distinguished from house organs and publicity or advertising
    publications, be given separate treatment. It is argued that
    newsletters are particularly vulnerable to mass photocopying, and
    that most newsletters have fairly modest circulations. Whether the
    copying of portions of a newsletter is an act of infringement or a
    fair use will necessarily turn on the facts of the individual case.
    However, as a general principle, it seems clear that the scope of
    the fair use doctrine should be considerably narrower in the case
    of newsletters than in that of either mass-circulation periodicals
    or scientific journals. The commercial nature of the user is a
    significant factor in such cases: Copying by a profit-making user
    of even a small portion of a newsletter may have a significant
    impact on the commercial market for the work.
      The Committee has examined the use of excerpts from copyrighted
    works in the art work of calligraphers. The committee believes that
    a single copy reproduction of an excerpt from a copyrighted work by
    a calligrapher for a single client does not represent an
    infringement of copyright. Likewise, a single reproduction of
    excerpts from a copyrighted work by a student calligrapher or
    teacher in a learning situation would be a fair use of the
    copyrighted work.
      The Register of Copyrights has recommended that the committee
    report describe the relationship between this section and the
    provisions of section 108 relating to reproduction by libraries and
    archives. The doctrine of fair use applies to library photocopying,
    and nothing contained in section 108 "in any way affects the right
    of fair use." No provision of section 108 is intended to take away
    any rights existing under the fair use doctrine. To the contrary,
    section 108 authorizes certain photocopying practices which may not
    qualify as a fair use.
      The criteria of fair use are necessarily set forth in general
    terms. In the application of the criteria of fair use to specific
    photocopying practices of libraries, it is the intent of this
    legislation to provide an appropriate balancing of the rights of
    creators, and the needs of users.
                                AMENDMENTS                            
      1992 - Pub. L. 102-492 inserted at end "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."
      1990 - Pub. L. 101-650 substituted "sections 106 and 106A" for
    "section 106" in introductory provisions.
                     EFFECTIVE DATE OF 1990 AMENDMENT                 
      Amendment by Pub. L. 101-650 effective 6 months after Dec. 1,
    1990, see section 610 of Pub. L. 101-650, set out as an Effective
    Date note under section 106A of this title.
-End-
-CITE-
    17 USC Sec. 108                                             01/03/2007
-EXPCITE-
    TITLE 17 - COPYRIGHTS
    CHAPTER 1 - SUBJECT MATTER AND SCOPE OF COPYRIGHT
-HEAD-
    Sec. 108. Limitations on exclusive rights: Reproduction by
      libraries and archives
-STATUTE-
      (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), (c), and (h), 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).
-SOURCE-
    (Pub. L. 94-553, title I, Sec. 101, Oct. 19, 1976, 90 Stat. 2546;
    Pub. L. 102-307, title III, Sec. 301, June 26, 1992, 106 Stat. 272;
    Pub. L. 105-80, Sec. 12(a)(4), Nov. 13, 1997, 111 Stat. 1534; Pub.
    L. 105-298, title I, Sec. 104, Oct. 27, 1998, 112 Stat. 2829; Pub.
    L. 105-304, title IV, Sec. 404, Oct. 28, 1998, 112 Stat. 2889; Pub.
    L. 109-9, title IV, Sec. 402, Apr. 27, 2005, 119 Stat. 227.)
-MISC1-
                       HISTORICAL AND REVISION NOTES                   
                         HOUSE REPORT NO. 94-1476                     
      Notwithstanding the exclusive rights of the owners of copyright,
    section 108 provides that under certain conditions 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
    or distribute not more than one copy or phonorecord of a work,
    provided (1) the reproduction or distribution is made without any
    purpose of direct or indirect commercial advantage and (2) the
    collections of the library or archives are open to the public or
    available not only to researchers affiliated with the library or
    archives, 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.
      Under this provision, a purely commercial enterprise could not
    establish a collection of copyrighted works, call itself a library
    or archive, and engage in for-profit reproduction and distribution
    of photocopies. Similarly, it would not be possible for a non-
    profit institution, by means of contractual arrangements with a
    commercial copying enterprise, to authorize the enterprise to carry
    out copying and distribution functions that would be exempt if
    conducted by the non-profit institution itself.
      The reference to "indirect commercial advantage" has raised
    questions as to the status of photocopying done by or for libraries
    or archival collections within industrial, profit-making, or
    proprietary institutions (such as the research and development
    departments of chemical, pharmaceutical, automobile, and oil
    corporations, the library of a proprietary hospital, the
    collections owned by a law or medical partnership, etc.).
      There is a direct interrelationship between this problem and the
    prohibitions against "multiple" and "systematic" photocopying in
    section 108(g)(1) and (2). Under section 108, a library in a
    profitmaking organization would not be authorized to:
        (a) use a single subscription or copy to supply its employees
      with multiple copies of material relevant to their work; or
        (b) use a single subscription or copy to supply its employees,
      on request, with single copies of material relevant to their
      work, where the arrangement is ''systematic" in the sense of
      deliberately substituting photocopying for subscription or
      purchase; or
        (c) use "interlibrary loan" arrangements for obtaining
      photocopies in such aggregate quantities as to substitute for
      subscriptions or purchase of material needed by employees in
      their work.
    Moreover, a library in a profit-making organization could not evade
    these obligations by installing reproducing equipment on its
    premises for unsupervised use by the organization's staff.
      Isolated, spontaneous making of single photocopies by a library
    in a for-profit organization, without any systematic effort to
    substitute photocopying for subscriptions or purchases, would be
    covered by section 108, even though the copies are furnished to the
    employees of the organization for use in their work. Similarly, for-
    profit libraries could participate in interlibrary arrangements
    for exchange of photocopies, as long as the reproduction or
    distribution was not "systematic." These activities, by themselves,
    would ordinarily not be considered "for direct or indirect
    commercial advantage," since the "advantage" referred to in this
    clause must attach to the immediate commercial motivation behind
    the reproduction or distribution itself, rather than to the
    ultimate profit-making motivation behind the enterprise in which
    the library is located. On the other hand, section 108 would not
    excuse reproduction or distribution if there were a commercial
    motive behind the actual making or distributing of the copies, if
    multiple copies were made or distributed, or if the photocopying
    activities were "systematic" in the sense that their aim was to
    substitute for subscriptions or purchases.
      The rights of reproduction and distribution under section 108
    apply in the following circumstances:
      Archival Reproduction. Subsection (b) authorizes the reproduction
    and distribution of a copy or phonorecord of an unpublished work
    duplicated in facsimile form solely for purposes of preservation
    and security, or for deposit for research use in another library or
    archives, if the copy or phonorecord reproduced is currently in the
    collections of the first library or archives. Only unpublished
    works could be reproduced under this exemption, but the right would
    extend to any type of work, including photographs, motion pictures
    and sound recordings. Under this exemption, for example, a
    repository could make photocopies of manuscripts by microfilm or
    electrostatic process, but could not reproduce the work in "machine-
    readable" language for storage in an information system.
      Replacement of Damaged Copy. Subsection (c) authorizes the
    reproduction of a published work duplicated in facsimile form
    solely for the purpose of replacement of a copy or phonorecord that
    is damaged, deteriorating, lost or stolen, if the library or
    archives has, after a reasonable effort, determined that an unused
    replacement cannot be obtained at a fair price. The scope and
    nature of a reasonable investigation to determine that an unused
    replacement cannot be obtained will vary according to the
    circumstances of a particular situation. It will always require
    recourse to commonly-known trade sources in the United States, and
    in the normal situation also to the publisher or other copyright
    owner (if such owner can be located at the address listed in the
    copyright registration), or an authorized reproducing service.
      Articles and Small Excerpts. Subsection (d) authorizes the
    reproduction and distribution of a copy of not more than one
    article or other contribution to a copyrighted collection or
    periodical issue, or of a copy or phonorecord of a small part of
    any other copyrighted work. The copy or phonorecord may be made by
    the library where the user makes his request or by another library
    pursuant to an interlibrary loan. It is further required that the
    copy become the property of the user, that the library or archives
    have no notice that the copy would be used for any purposes other
    than private study, scholarship or research, and that the library
    or archives display prominently at the place where reproduction
    requests are accepted, and includes in its order form, a warning of
    copyright in accordance with requirements that the Register of
    Copyrights shall prescribe by regulation.
      Out-of-Print Works. Subsection (e) authorizes the reproduction
    and distribution of a copy or phonorecord of an entire work under
    certain circumstances, if it has been established that a copy
    cannot be obtained at a fair price. The copy may be made by the
    library where the user makes his request or by another library
    pursuant to an interlibrary loan. The scope and nature of a
    reasonable investigation to determine that an unused copy cannot be
    obtained will vary according to the circumstances of a particular
    situation. It will always require recourse to commonly-known trade
    sources in the United States, and in the normal situation also to
    the publisher or other copyright owner (if the owner can be located
    at the address listed in the copyright registration), or an
    authorized reproducing service. It is further required that the
    copy become the property of the user, that the library or archives
    have no notice that the copy would be used for any purpose other
    than private study, scholarship, or research, and that the library
    or archives display prominently at the place where reproduction
    requests are accepted, and include on its order form, a warning of
    copyright in accordance with requirements that the Register of
    Copyrights shall prescribe by regulation.
      General Exemptions. Clause (1) of subsection (f) specifically
    exempts a library or archives or its employees from liability for
    the unsupervised use of reproducing equipment located on its
    premises, provided that the reproducing equipment displays a notice
    that the making of a copy may be subject to the copyright law.
    Clause (2) of subsection (f) makes clear that this exemption of the
    library or archives does not extend to the person using such
    equipment or requesting such copy if the use exceeds fair use.
    Insofar as such person is concerned the copy or phonorecord made is
    not considered "lawfully" made for purposes of sections 109, 110 or
    other provisions of the title.
      Clause (3) provides that nothing in section 108 is intended to
    limit the reproduction and distribution by lending of a limited
    number of copies and excerpts of an audiovisual news program. This
    exemption is intended to apply to the daily newscasts of the
    national television networks, which report the major events of the
    day. It does not apply to documentary (except documentary programs
    involving news reporting as that term is used in section 107),
    magazine-format or other public affairs broadcasts dealing with
    subjects of general interest to the viewing public.
      The clause was first added to the revision bill in 1974 by the
    adoption of an amendment proposed by Senator Baker. It is intended
    to permit libraries and archives, subject to the general conditions
    of this section, to make off-the-air videotape recordings of daily
    network news casts for limited distribution to scholars and
    researchers for use in research purposes. As such, it is an adjunct
    to the American Television and Radio Archive established in Section
    113 of the Act [2 U.S.C. 170] which will be the principal
    repository for television broadcast material, including news
    broadcasts, the inclusion of language indicating that such material
    may only be distributed by lending by the library or archive is
    intended to preclude performance, copying, or sale, whether or not
    for profit, by the recipient of a copy of a television broadcast
    taped off-the-air pursuant to this clause.
      Clause (4), in addition to asserting that nothing contained in
    section 108 "affects the right of fair use as provided by section
    107", also provides that the right of reproduction granted by this
    section does not override any contractual arrangements assumed by a
    library or archives when it obtained a work for its collections:
    For example, if there is an express contractual prohibition against
    reproduction for any purpose, this legislation shall not be
    construed as justifying a violation of the contract. This clause is
    intended to encompass the situation where an individual makes
    papers, manuscripts or other works available to a library with the
    understanding that they will not be reproduced.
      It is the intent of this legislation that a subsequent unlawful
    use by a user of a copy or phonorecord of a work lawfully made by a
    library, shall not make the library liable for such improper use.
      Multiple Copies and Systematic Reproduction. Subsection (g)
    provides that the rights granted by this section extend only to the
    "isolated and unrelated reproduction of a single copy or
    phonorecord of the same material on separate occasions." However,
    this section does not authorize the related or concerted
    reproduction 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 individual or for
    separate use by the individual members of a group.
      With respect to material described in subsection (d) - articles
    or other contributions to periodicals or collections, and small
    parts of other copyrighted works - subsection (g)(2) provides that
    the exemptions of section 108 do not apply if the library or
    archive engages in "systematic reproduction or distribution of
    single or multiple copies or phonorecords." This provision in S. 22
    provoked a storm of controversy, centering around the extent to
    which the restrictions on "systematic" activities would prevent the
    continuation and development of interlibrary networks and other
    arrangements involving the exchange of photocopies. After thorough
    consideration, the Committee amended section 108(g)(2) to add the
    following proviso:
        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.
      In addition, the Committee added a new subsection (i) to section
    108 [this section], requiring the Register of Copyrights, five
    years from the effective date of the new Act and at five-year
    intervals thereafter, to report to Congress upon "the extent to
    which this section has achieved the intended statutory balancing of
    the rights of creators, and the needs of users," and to make
    appropriate legislative or other recommendations. As noted in
    connection with section 107, the Committee also amended section
    504(c) in a way that would insulate librarians from unwarranted
    liability for copyright infringement; this amendment is discussed
    below.
      The key phrases in the Committee's amendment of section 108(g)(2)
    are "aggregate quantities" and "substitute for a subscription to or
    purchase of" a work. To be implemented effectively in practice,
    these provisions will require the development and implementation of
    more-or-less specific guidelines establishing criteria to govern
    various situations.
      The National Commission on New Technological Uses of Copyrighted
    Works (CONTU) offered to provide good offices in helping to develop
    these guidelines. This offer was accepted and, although the final
    text of guidelines has not yet been achieved, the Committee has
    reason to hope that, within the next month, some agreement can be
    reached on an initial set of guidelines covering practices under
    section 108(g)(2).
      Works Excluded. Subsection (h) provides that 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." The latter term is intended as the equivalent
    in meaning of the phrase "audiovisual news program" in section
    108(f)(3). The exclusions under subsection (h) do not apply to
    archival reproduction under subsection (b), to replacement of
    damaged or lost copies or phonorecords under subsection (c), or 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)."
      Although subsection (h) generally removes musical, graphic, and
    audiovisual works from the specific exemptions of section 108, it
    is important to recognize that the doctrine of fair use under
    section 107 remains fully applicable to the photocopying or other
    reproduction of such works. In the case of music, for example, it
    would be fair use for a scholar doing musicological research to
    have a library supply a copy of a portion of a score or to
    reproduce portions of a phonorecord of a work. Nothing in section
    108 impairs the applicability of the fair use doctrine to a wide
    variety of situations involving photocopying or other reproduction
    by a library of copyrighted material in its collections, where the
    user requests the reproduction for legitimate scholarly or research
    purposes.
                                AMENDMENTS                            
      2005 - Subsec. (i). Pub. L. 109-9 substituted "(b), (c), and (h)"
    for "(b) and (c)".
      1998 - Subsec. (a). Pub. L. 105-304, Sec. 404(1)(A), (B), in
    introductory provisions, substituted "Except as otherwise provided
    in this title and notwithstanding" for "Notwithstanding" and
    inserted ", except as provided in subsections (b) and (c)" after
    "of a work".
      Subsec. (a)(3). Pub. L. 105-304, Sec. 404(1)(C), inserted before
    period at end "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".
      Subsec. (b). Pub. L. 105-304, Sec. 404(2), substituted "three
    copies or phonorecords" for "a copy or phonorecord", struck out "in
    facsimile form" after "duplicated", and substituted "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."
    for "if the copy or phonorecord reproduced is currently in the
    collections of the library or archives."
      Subsec. (c). Pub. L. 105-304, Sec. 404(3), substituted "three
    copies or phonorecords" for "a copy or phonorecord", struck out "in
    facsimile form" after "duplicated", inserted "or if the existing
    format in which the work is stored has become obsolete," after
    "stolen,", substituted "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 "if the library or archives has, after a reasonable effort,
    determined that an unused replacement cannot be obtained at a fair
    price.", and inserted concluding provisions.
      Subsecs. (h), (i). Pub. L. 105-298 added subsec. (h) and
    redesignated former subsec. (h) as (i).
      1997 - Subsec. (e). Pub. L. 105-80 substituted "fair price" for
    "pair price" in introductory provisions.
      1992 - Subsec. (i). Pub. L. 102-307 struck out subsec. (i), which
    read as follows: "Five years from the effective date of this Act,
    and at five-year intervals thereafter, the Register of Copyrights,
    after consulting with representatives of authors, book and
    periodical publishers, and other owners of copyrighted materials,
    and with representatives of library users and librarians, shall
    submit to the Congress a report setting forth the extent to which
    this section has achieved the intended statutory balancing of the
    rights of creators, and the needs of users. The report should also
    describe any problems that may have arisen, and present legislative
    or other recommendations, if warranted."
                     EFFECTIVE DATE OF 1998 AMENDMENTS                 
      Pub. L. 105-304, title IV, Sec. 407, Oct. 28, 1998, 112 Stat.
    2905, provided that: "Except as otherwise provided in this title
    [enacting section 4001 of Title 28, Judiciary and Judicial
    Procedure, amending this section, sections 112, 114, 701, and 801
    to 803 of this title, section 5314 of Title 5, Government
    Organization and Employees, and section 3 of Title 35, Patents, and
    enacting provisions set out as notes under sections 112 and 114 of
    this title], this title and the amendments made by this title shall
    take effect on the date of the enactment of this Act [Oct. 28,
    1998]."
      Pub. L. 105-298, title I, Sec. 106, Oct. 27, 1998, 112 Stat.
    2829, provided that: "This title [amending this section and
    sections 203 and 301 to 304 of this title, enacting provisions set
    out as a note under section 101 of this title, and amending
    provisions set out as notes under sections 101 and 304 of this
    title] and the amendments made by this title shall take effect on
    the date of the enactment of this Act [Oct. 27, 1998]."
-End-
-CITE-
    17 USC Sec. 109                                             01/03/2007
-EXPCITE-
    TITLE 17 - COPYRIGHTS
    CHAPTER 1 - SUBJECT MATTER AND SCOPE OF COPYRIGHT
-HEAD-
    Sec. 109. Limitations on exclusive rights: Effect of transfer of
      particular copy or phonorecord
-STATUTE-
      (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.
-SOURCE-
    (Pub. L. 94-553, title I, Sec. 101, Oct. 19, 1976, 90 Stat. 2548;
    Pub. L. 98-450, Sec. 2, Oct. 4, 1984, 98 Stat. 1727; Pub. L. 100-
    617, Sec. 2, Nov. 5, 1988, 102 Stat. 3194; Pub. L. 101-650, title
    VIII, Secs. 802, 803, Dec. 1, 1990, 104 Stat. 5134, 5135; Pub. L.
    103-465, title V, Sec. 514(b), Dec. 8, 1994, 108 Stat. 4981; Pub.
    L. 105-80, Sec. 12(a)(5), Nov. 13, 1997, 111 Stat. 1534.)
-MISC1-
                       HISTORICAL AND REVISION NOTES                   
                         HOUSE REPORT NO. 94-1476                     
      Effect on Further Disposition of Copy or Phonorecord. Section
    109(a) restates and confirms the principle that, where the
    copyright owner has transferred ownership of a particular copy or
    phonorecord of a work, the person to whom the copy or phonorecord
    is transferred is entitled to dispose of it by sale, rental, or any
    other means. Under this principle, which has been established by
    the court decisions and section 27 of the present law [section 27
    of former title 17], the copyright owner's exclusive right of
    public distribution would have no effect upon anyone who owns "a
    particular copy or phonorecord lawfully made under this title" and
    who wishes to transfer it to someone else or to destroy it.
      Thus, for example, the outright sale of an authorized copy of a
    book frees it from any copyright control over its resale price or
    other conditions of its future disposition. A library that has
    acquired ownership of a copy is entitled to lend it under any
    conditions it chooses to impose. This does not mean that conditions
    on future disposition of copies or phonorecords, imposed by a
    contract between their buyer and seller, would be unenforceable
    between the parties as a breach of contract, but it does mean that
    they could not be enforced by an action for infringement of
    copyright. Under section 202 however, the owner of the physical
    copy or phonorecord cannot reproduce or perform the copyrighted
    work publicly without the copyright owner's consent.
      To come within the scope of section 109(a), a copy or phonorecord
    must have been "lawfully made under this title," though not
    necessarily with the copyright owner's authorization. For example,
    any resale of an illegally "pirated" phonorecord would be an
    infringement, but the disposition of a phonorecord legally made
    under the compulsory licensing provisions of section 115 would not.
      Effect on Display of Copy. Subsection (b) of section 109 deals
    with the scope of the copyright owner's exclusive right to control
    the public display of a particular "copy" of a work (including the
    original or prototype copy in which the work was first fixed).
    Assuming, for example, that a painter has sold the only copy of an
    original work of art without restrictions, would it be possible for
    him to restrain the new owner from displaying it publicly in
    galleries, shop windows, on a projector, or on television?
      Section 109(b) adopts the general principle that the lawful owner
    of a copy of a work should be able to put his copy on public
    display without the consent of the copyright owner. As in cases
    arising under section 109(a), this does not mean that contractual
    restrictions on display between a buyer and seller would be
    unenforceable as a matter of contract law.
      The exclusive right of public display granted by section 106(5)
    would not apply where the owner of a copy wishes to show it
    directly to the public, as in a gallery or display case, or
    indirectly, as through an opaque projector. Where the copy itself
    is intended for projection, as in the case of a photographic slide,
    negative, or transparency, the public projection of a single image
    would be permitted as long as the viewers are "present at the place
    where the copy is located."
      On the other hand, section 109(b) takes account of the
    potentialities of the new communications media, notably television,
    cable and optical transmission devices, and information storage and
    retrieval devices, for replacing printed copies with visual images.
    First of all, the public display of an image of a copyrighted work
    would not be exempted from copyright control if the copy from which
    the image was derived were outside the presence of the viewers. In
    other words, the display of a visual image of a copyrighted work
    would be an infringement if the image were transmitted by any
    method (by closed or open circuit television, for example, or by a
    computer system) from one place to members of the public located
    elsewhere.
      Moreover, the exemption would extend only to public displays that
    are made "either directly or by the projection of no more than one
    image at a time." Thus, even where the copy and the viewers are
    located at the same place, the simultaneous projection of multiple
    images of the work would not be exempted. For example, where each
    person in a lecture hall is supplied with a separate viewing
    apparatus, the copyright owner's permission would generally be
    required in order to project an image of a work on each individual
    screen at the same time.
      The committee's intention is to preserve the traditional
    privilege of the owner of a copy to display it directly, but to
    place reasonable restrictions on the ability to display it
    indirectly in such a way that the copyright owner's market for
    reproduction and distribution of copies would be affected. Unless
    it constitutes a fair use under section 107, or unless one of the
    special provisions of section 110 or 111 is applicable, projection
    of more than one image at a time, or transmission of an image to
    the public over television or other communication channels, would
    be an infringement for the same reasons that reproduction in copies
    would be. The concept of "the place where the copy is located" is
    generally intended to refer to a situation in which the viewers are
    present in the same physical surroundings as the copy, even though
    they cannot see the copy directly.
      Effect of Mere Possession of Copy or Phonorecord. Subsection (c)
    of section 109 qualifies the privileges specified in subsections
    (a) and (b) by making clear that they do not apply to someone who
    merely possesses a copy or phonorecord without having acquired
    ownership of it. Acquisition of an object embodying a copyrighted
    work by rental, lease, loan, or bailment carries with it no
    privilege to dispose of the copy under section 109(a) or to display
    it publicly under section 109(b). To cite a familiar example, a
    person who has rented a print of a motion picture from the
    copyright owner would have no right to rent it to someone else
    without the owner's permission.
      Burden of Proof in Infringement Actions. During the course of its
    deliberations on this section, the Committee's attention was
    directed to a recent court decision holding that the plaintiff in
    an infringement action had the burden of establishing that the
    allegedly infringing copies in the defendant's possession were not
    lawfully made or acquired under section 27 of the present law
    [section 27 of former title 17]. American International Pictures,
    Inc. v. Foreman, 400 F.Supp. 928 (S.D.Alabama 1975). The Committee
    believes that the court's decision, if followed, would place a
    virtually impossible burden on copyright owners. The decision is
    also inconsistent with the established legal principle that the
    burden of proof should not be placed upon a litigant to establish
    facts particularly within the knowledge of his adversary. The
    defendant in such actions clearly has the particular knowledge of
    how possession of the particular copy was acquired, and should have
    the burden of providing this evidence to the court. It is the
    intent of the Committee, therefore, that in an action to determine
    whether a defendant is entitled to the privilege established by
    section 109(a) and (b), the burden of proving whether a particular
    copy was lawfully made or acquired should rest on the defendant.
-REFTEXT-
                            REFERENCES IN TEXT                        
      The date of the enactment of the Computer Software Rental
    Amendments Act of 1990, referred to in subsec. (b)(2)(B), is the
    date of enactment of Pub. L. 101-650, which was approved Dec. 1,
    1990.
      The first section of the Clayton Act, referred to in subsec.
    (b)(3), is classified to section 12 of Title 15, Commerce and
    Trade.
      Section 5 of the Federal Trade Commission Act, referred to in
    subsec. (b)(3), is classified to section 45 of Title 15.
-MISC2-
                                AMENDMENTS                            
      1997 - Subsec. (b)(2)(B). Pub. L. 105-80 substituted "Register of
    Copyrights considers appropriate" for "Register of Copyright
    considers appropriate".
      1994 - Subsec. (a). Pub. L. 103-465 inserted at end
    "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."
      1990 - Subsec. (b)(1). Pub. L. 101-650, Sec. 802(2), added par.
    (1) and struck out former par. (1) which read as follows:
    "Notwithstanding the provisions of subsection (a), unless
    authorized by the owners of copyright in the sound recording and in
    the musical works embodied therein, the owner of a particular
    phonorecord may not, for purposes of direct or indirect commercial
    advantage, dispose of, or authorize the disposal of, the possession
    of that phonorecord by rental, lease, or lending, or by any other
    act or practice in the nature of rental, lease, or lending. Nothing
    in the preceding sentence shall apply to the rental, lease, or
    lending of a phonorecord for nonprofit purposes by a nonprofit
    library or nonprofit educational institution."
      Subsec. (b)(2), (3). Pub. L. 101-650, Sec. 802(1), (2), added
    par. (2) and redesignated former pars. (2) and (3) as (3) and (4),
    respectively.
      Subsec. (b)(4). Pub. L. 101-650, Sec. 802(3), added par. (4) and
    struck out former par. (4) which read as follows: "Any person who
    distributes a phonorecord in violation of clause (1) is an
    infringer of copyright under section 501 of this title and is
    subject to the remedies set forth in sections 502, 503, 504, 505,
    and 509. Such violation shall not be a criminal offense under
    section 506 or cause such person to be subject to the criminal
    penalties set forth in section 2319 of title 18."
      Pub. L. 101-650, Sec. 802(1), redesignated par. (3) as (4).
      Subsec. (e). Pub. L. 101-650, Sec. 803, added subsec. (e).
      1988 - Subsec. (d). Pub. L. 100-617 substituted "(a) and (c)" for
    "(a) and (b)" and "copyright" for "coyright".
      1984 - Subsecs. (b) to (d). Pub. L. 98-450 added subsec. (b) and
    redesignated existing subsecs. (b) and (c) as (c) and (d),
    respectively.
                     EFFECTIVE DATE OF 1990 AMENDMENT                 
      Section 804 of title VIII of Pub. L. 101-650, as amended by Pub.
    L. 103-465, title V, Sec. 511, Dec. 8, 1994, 108 Stat. 4974,
    provided that:
      "(a) In General. - Subject to subsection (b), this title
    [amending this section and enacting provisions set out as notes
    under sections 101 and 205 of this title] and the amendments made
    in section 802 [amending this section] shall take effect on the
    date of the enactment of this Act [Dec. 1, 1990]. The amendment
    made by section 803 [amending this section] shall take effect one
    year after such date of enactment.
      "(b) Prospective Application. - Section 109(b) of title 17,
    United States Code, as amended by section 802 of this Act, shall
    not affect the right of a person in possession of a particular copy
    of a computer program, who acquired such copy before the date of
    the enactment of this Act [Dec. 1, 1990], to dispose of the
    possession of that copy on or after such date of enactment in any
    manner permitted by section 109 of title 17, United States Code, as
    in effect on the day before such date of enactment.
      "(c) Termination. - The amendments made by section 803 shall not
    apply to public performances or displays that occur on or after
    October 1, 1995."
                     EFFECTIVE DATE OF 1984 AMENDMENT                 
      Section 4 of Pub. L. 98-450, as amended by Pub. L. 100-617, Sec.
    1, Nov. 5, 1988, 102 Stat. 3194; Pub. L. 103-182, title III, Sec.
    332, Dec. 8, 1993, 107 Stat. 2114, provided that:
      "(a) The amendments made by this Act [amending this section and
    section 115 of this title and enacting provisions set out as a note
    under section 101 of this title] shall take effect on the date of
    the enactment of this Act [Oct. 4, 1984].
      "(b) The provisions of section 109(b) of title 17, United States
    Code, as added by section 2 of this Act, shall not affect the right
    of an owner of a particular phonorecord of a sound recording, who
    acquired such ownership before the date of the enactment of this
    Act [Oct. 4, 1984], to dispose of the possession of that particular
    phonorecord on or after such date of enactment in any manner
    permitted by section 109 of title 17, United States Code, as in
    effect on the day before the date of the enactment of this Act."
      [Amendment by Pub. L. 103-182 to section 4 of Pub. L. 98-450, set
    out above, effective on the date the North American Free Trade
    Agreement enters into force with respect to the United States [Jan.
    1, 1994], see section 335 of Pub. L. 103-182, set out as an
    Effective Date of 1993 Amendment note under section 1052 of Title
    15, Commerce and Trade.]
    EVALUATION OF IMPACT OF COPYRIGHT LAW AND AMENDMENTS ON ELECTRONIC
                  COMMERCE AND TECHNOLOGICAL DEVELOPMENT
      Pub. L. 105-304, title I, Sec. 104, Oct. 28, 1998, 112 Stat.
    2876, provided that:
      "(a) Evaluation by the Register of Copyrights and the Assistant
    Secretary for Communications and Information. - The Register of
    Copyrights and the Assistant Secretary for Communications and
    Information of the Department of Commerce shall jointly evaluate - 
        "(1) the effects of the amendments made by this title [enacting
      chapter 12 of this title and amending sections 101, 104, 104A,
      411, and 507 of this title] and the development of electronic
      commerce and associated technology on the operation of sections
      109 and 117 of title 17, United States Code; and
        "(2) the relationship between existing and emergent technology
      and the operation of sections 109 and 117 of title 17, United
      States Code.
      "(b) Report to Congress. - The Register of Copyrights and the
    Assistant Secretary for Communications and Information of the
    Department of Commerce shall, not later than 24 months after the
    date of the enactment of this Act [Oct. 28, 1998], submit to the
    Congress a joint report on the evaluation conducted under
    subsection (a), including any legislative recommendations the
    Register and the Assistant Secretary may have."
-End-
-CITE-
    17 USC Sec. 110                                             01/03/2007
-EXPCITE-
    TITLE 17 - COPYRIGHTS
    CHAPTER 1 - SUBJECT MATTER AND SCOPE OF COPYRIGHT
-HEAD-
    Sec. 110. Limitations on exclusive rights: Exemption of certain
      performances and displays
-STATUTE-
      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 one 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,(!1)
      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;
        (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; and
        (11) the making imperceptible, by or at the direction of a
      member of a private household, of limited portions of audio or
      video content of a motion picture, during a performance in or
      transmitted to that household for private home viewing, from an
      authorized copy of the motion picture, or the creation or
      provision of a computer program or other technology that enables
      such making imperceptible and that is designed and marketed to be
      used, at the direction of a member of a private household, for
      such making imperceptible, if no fixed copy of the altered
      version of the motion picture is created by such computer program
      or other technology.
    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.
        For purposes of paragraph (11), the term "making imperceptible"
      does not include the addition of audio or video content that is
      performed or displayed over or in place of existing content in a
      motion picture.
        Nothing in paragraph (11) shall be construed to imply further
      rights under section 106 of this title, or to have any effect on
      defenses or limitations on rights granted under any other section
      of this title or under any other paragraph of this section.
-SOURCE-
    (Pub. L. 94-553, title I, Sec. 101, Oct. 19, 1976, 90 Stat. 2549;
    Pub. L. 97-366, Sec. 3, Oct. 25, 1982, 96 Stat. 1759; Pub. L. 105-
    80, Sec. 12(a)(6), Nov. 13, 1997, 111 Stat. 1534; Pub. L. 105-298,
    title II, Sec. 202, Oct. 27, 1998, 112 Stat. 2830; Pub. L. 106-44,
    Sec. 1(a), Aug. 5, 1999, 113 Stat. 221; Pub. L. 107-273, div. C,
    title III, Secs. 13210(6), 13301(b), Nov. 2, 2002, 116 Stat. 1909,
    1910; Pub. L. 109-9, title II, Sec. 202(a), Apr. 27, 2005, 119
    Stat. 223.)
-MISC1-
                       HISTORICAL AND REVISION NOTES                   
                         HOUSE REPORT NO. 94-1476                     
      Clauses (1) through (4) of section 110 deal with performances and
    exhibitions that are now generally exempt under the "for profit"
    limitation or other provisions of the copyright law, and that are
    specifically exempted from copyright liability under this
    legislation. Clauses (1) and (2) between them are intended to cover
    all of the various methods by which performances or displays in the
    course of systematic instruction take place.
      Face-to-Face Teaching Activities. Clause (1) of section 110 is
    generally intended to set out the conditions under which
    performances or displays, in the course of instructional activities
    other than educational broadcasting, are to be exempted from
    copyright control. The clause covers all types of copyrighted
    works, and exempts their performance or display "by instructors or
    pupils in the course of face-to-face teaching activities of a
    nonprofit educational institution," where the activities take place
    "in a classroom or similar place devoted to instruction."
      There appears to be no need for a statutory definition of "face-
    to-face" teaching activities to clarify the scope of the
    provision. "Face-to-face teaching activities" under clause (1)
    embrace instructional performances and displays that are not
    "transmitted." The concept does not require that the teacher and
    students be able to see each other, although it does require their
    simultaneous presence in the same general place. Use of the phrase
    "in the course of face-to-face teaching activities" is intended to
    exclude broadcasting or other transmissions from an outside
    location into classrooms, whether radio or television and whether
    open or closed circuit. However, as long as the instructor and
    pupils are in the same building or general area, the exemption
    would extend to the use of devices for amplifying or reproducing
    sound and for projecting visual images. The "teaching activities"
    exempted by the clause encompass systematic instruction of a very
    wide variety of subjects, but they do not include performances or
    displays, whatever their cultural value or intellectual appeal,
    that are given for the recreation or entertainment of any part of
    their audience.
      Works Affected. - Since there is no limitation on the types of
    works covered by the exemption, teachers or students would be free
    to perform or display anything in class as long as the other
    conditions of the clause are met. They could read aloud from
    copyrighted text material, act out a drama, play or sing a musical
    work, perform a motion picture or filmstrip, or display text or
    pictorial material to the class by means of a projector. However,
    nothing in this provision is intended to sanction the unauthorized
    reproduction of copies or phonorecords for the purpose of classroom
    performance or display, and the clause contains a special exception
    dealing with performances from unlawfully made copies of motion
    pictures and other audiovisual works, to be discussed below.
      Instructors or Pupils. - To come within clause (1), the
    performance or display must be "by instructors or pupils," thus
    ruling out performances by actors, singers, or instrumentalists
    brought in from outside the school to put on a program. However,
    the term "instructors" would be broad enough to include guest
    lecturers if their instructional activities remain confined to
    classroom situations. In general, the term "pupils" refers to the
    enrolled members of a class.
      Nonprofit Educational Institution. - Clause (1) makes clear that
    it applies only to the teaching activities "of a nonprofit
    educational institution," thus excluding from the exemption
    performances or displays in profit-making institutions such as
    dance studios and language schools.
      Classroom or Similar Place. - The teaching activities exempted by
    the clause must take place "in a classroom or similar place devoted
    to instruction." For example, performances in an auditorium or
    stadium during a school assembly, graduation ceremony, class play,
    or sporting event, where the audience is not confined to the
    members of a particular class, would fall outside the scope of
    clause (1), although in some cases they might be exempted by clause
    (4) of section 110. The "similar place" referred to in clause (1)
    is a place which is "devoted to instruction" in the same way a
    classroom is; common examples would include a studio, a workshop, a
    gymnasium, a training field, a library, the stage of an auditorium,
    or the auditorium itself, if it is actually used as a classroom for
    systematic instructional activities.
      Motion Pictures and Other Audiovisual Works. - The final
    provision of clause (1) deals with the special problem of
    performances from unlawfully-made copies of motion pictures and
    other audiovisual works. The exemption is lost where the copy being
    used for a classroom performance was "not lawfully made under this
    title" and the person responsible for the performance knew or had
    reason to suspect as much. This special exception to the exemption
    would not apply to performances from lawfully-made copies, even if
    the copies were acquired from someone who had stolen or converted
    them, or if the performances were in violation of an agreement.
    However, though the performance would be exempt under section
    110(1) in such cases, the copyright owner might have a cause of
    action against the unauthorized distributor under section 106(3),
    or against the person responsible for the performance, for breach
    of contract.
      Projection Devices. - As long as there is no transmission beyond
    the place where the copy is located, both section 109(b) and
    section 110(1) would permit the classroom display of a work by
    means of any sort of projection device or process.
      Instructional Broadcasting. Works Affected. - The exemption for
    instructional broadcasting provided by section 110(2) would apply
    only to "performance of a nondramatic literary or musical work or
    display of a work." Thus, the copyright owner's permission would be
    required for the performance on educational television or radio of
    a dramatic work, of a dramatico-musical work such as an opera or
    musical comedy, or of a motion picture. Since, as already
    explained, audiovisual works such as filmstrips are equated with
    motion pictures, their sequential showing would be regarded as a
    performance rather than a display and would not be exempt under
    section 110(2). The clause is not intended to limit in any way the
    copyright owner's exclusive right to make dramatizations,
    adaptations, or other derivative works under section 106(2). Thus,
    for example, a performer could read a nondramatic literary work
    aloud under section 110(2), but the copyright owner's permission
    would be required for him to act it out in dramatic form.
      Systematic Instructional Activities. - Under section 110(2) a
    transmission must meet three specified conditions in order to be
    exempted from copyright liability. The first of these, as provided
    by subclause (A), is that the performance or display must be "a
    regular part of the systematic instructional activities of a
    governmental body or a nonprofit educational institution." The
    concept of "systematic instructional activities" is intended as the
    general equivalent of "curriculums," but it could be broader in a
    case such as that of an institution using systematic teaching
    methods not related to specific course work. A transmission would
    be a regular part of these activities if it is in accordance with
    the pattern of teaching established by the governmental body or
    institution. The use of commercial facilities, such as those of a
    cable service, to transmit the performance or display, would not
    affect the exemption as long as the actual performance or display
    was for nonprofit purposes.
      Content of Transmission. - Subclause (B) requires that the
    performance or display be directly related and of material
    assistance to the teaching content of the transmission.
      Intended Recipients. - Subclause (C) requires that the
    transmission is made primarily for:
        (i) Reception in classrooms or similar places normally devoted
      to instruction, or
        (ii) Reception by persons to whom the transmission is directed
      because their disabilities or other special circumstances prevent
      their attendance in classrooms or similar places normally devoted
      to instruction, or
        (iii) Reception by officers or employees of governmental bodies
      as a part of their official duties or employment.
      In all three cases, the instructional transmission need only be
    made "primarily" rather than "solely" to the specified recipients
    to be exempt. Thus, the transmission could still be exempt even
    though it is capable of reception by the public at large.
    Conversely, it would not be regarded as made "primarily" for one of
    the required groups of recipients if the principal purpose behind
    the transmission is reception by the public at large, even if it is
    cast in the form of instruction and is also received in classrooms.
    Factors to consider in determining the "primary" purpose of a
    program would include its subject matter, content, and the time of
    its transmission.
      Paragraph (i) of subclause (C) generally covers what are known as
    "in-school" broadcasts, whether open- or closed-circuit. The
    reference to "classrooms or similar places" here is intended to
    have the same meaning as that of the phrase as used in section
    110(1). The exemption in paragraph (ii) is intended to exempt
    transmissions providing systematic instruction to individuals who
    cannot be reached in classrooms because of "their disabilities or
    other special circumstances." Accordingly, the exemption is
    confined to instructional broadcasting that is an adjunct to the
    actual classwork of nonprofit schools or is primarily for people
    who cannot be brought together in classrooms such as preschool
    children, displaced workers, illiterates, and shut-ins.
      There has been some question as to whether or not the language in
    this section of the bill is intended to include instructional
    television college credit courses. These telecourses are aimed at
    undergraduate and graduate students in earnest pursuit of higher
    educational degrees who are unable to attend daytime classes
    because of daytime employment, distance from campus, or some other
    intervening reason. So long as these broadcasts are aimed at
    regularly enrolled students and conducted by recognized higher
    educational institutions, the committee believes that they are
    clearly within the language of section 110(2)(C)(ii). Like night
    school and correspondence courses before them, these telecourses
    are fast becoming a valuable adjunct of the normal college
    curriculum.
      The third exemption in subclause (C) is intended to permit the
    use of copyrighted material, in accordance with the other
    conditions of section 110(2), in the course of instructional
    transmissions for Government personnel who are receiving training
    "as a part of their official duties or employment."
      Religious Services. The exemption in clause (3) of section 110
    covers performances of a nondramatic literary or musical work, and
    also performances "of dramatico-musical works of a religious
    nature"; in addition, it extends to displays of works of all kinds.
    The exemption applies where the performance or display is "in the
    course of services at a place of worship or other religious
    assembly." The scope of the clause does not cover the sequential
    showing of motion pictures and other audiovisual works.
      The exemption, which to some extent has its counterpart in
    sections 1 and 104 of the present law [sections 1 and 104 of former
    title 17], applies to dramatico-musical works "of a religious
    nature." The purpose here is to exempt certain performances of
    sacred music that might be regarded as "dramatic" in nature, such
    as oratorios, cantatas, musical settings of the mass, choral
    services, and the like. The exemption is not intended to cover
    performances of secular operas, musical plays, motion pictures, and
    the like, even if they have an underlying religious or
    philosophical theme and take place "in the course of [religious]
    services."
      To be exempted under section 110(3) a performance or display must
    be "in the course of services," thus excluding activities at a
    place of worship that are for social, educational, fund raising, or
    entertainment purposes. Some performances of these kinds could be
    covered by the exemption in section 110(4), discussed next. Since
    the performance or display must also occur "at a place of worship
    or other religious assembly," the exemption would not extend to
    religious broadcasts or other transmissions to the public at large,
    even where the transmissions were sent from the place of worship.
    On the other hand, as long as services are being conducted before a
    religious gathering, the exemption would apply if they were
    conducted in places such as auditoriums, outdoor theaters, and the
    like.
      Certain Other Nonprofit Performances. In addition to the
    educational and religious exemptions provided by clauses (1)
    through (3) of section 110, clause (4) contains a general exception
    to the exclusive right of public performance that would cover some,
    though not all, of the same ground as the present "for profit"
    limitation.
      Scope of Exemption. - The exemption in clause (4) applies to the
    same general activities and subject matter as those covered by the
    "for profit" limitation today: public performances of nondramatic
    literary and musical works. However, the exemption would be limited
    to public performances given directly in the presence of an
    audience whether by means of living performers, the playing of
    phonorecords, or the operation of a receiving apparatus, and would
    not include a "transmission to the public." Unlike the clauses (1)
    through (3) and (5) of section 110, but like clauses (6) through
    (8), clause (4) applies only to performing rights in certain works,
    and does not affect the exclusive right to display a work in
    public.
      No Profit Motive. - In addition to the other conditions specified
    by the clause, the performance must be "without any purpose of
    direct or indirect commercial advantage." This provision expressly
    adopts the principle established by the court decisions construing
    the "for profit" limitation: that public performances given or
    sponsored in connection with any commercial or profit-making
    enterprises are subject to the exclusive rights of the copyright
    owner even though the public is not charged for seeing or hearing
    the performance.
      No Payment for Performance. - An important condition for this
    exemption is that the performance be given "without payment of any
    fee or other compensation for the performance to any of its
    performers, promoters, or organizers." The basic purpose of this
    requirement is to prevent the free use of copyrighted material
    under the guise of charity where fees or percentages are paid to
    performers, promoters, producers, and the like. However, the
    exemption would not be lost if the performers, directors, or
    producers of the performance, instead of being paid directly "for
    the performance," are paid a salary for duties encompassing the
    performance. Examples are performances by a school orchestra
    conducted by a music teacher who receives an annual salary, or by a
    service band whose members and conductors perform as part of their
    assigned duties and who receive military pay. The committee
    believes that performances of this type should be exempt, assuming
    the other conditions in clause (4) are met, and has not adopted the
    suggestion that the word "salary" be added to the phrase referring
    to the "payment of any fee or other compensation."
      Admission Charge. - Assuming that the performance involves no
    profit motive and no one responsible for it gets paid a fee, it
    must still meet one of two alternative conditions to be exempt. As
    specified in subclauses (A) and (B) of section 110(4), these
    conditions are: (1) that no direct or indirect admission charge is
    made, or (2) that the net proceeds are "used exclusively for
    educational, religious, or charitable purposes and not for private
    financial gain."
      Under the second of these conditions, a performance meeting the
    other conditions of clause (4) would be exempt even if an admission
    fee is charged, provided any amounts left "after deducting the
    reasonable costs of producing the performance" are used solely for
    bona fide educational, religious, or charitable purposes. In cases
    arising under this second condition and as provided in subclause
    (B), where there is an admission charge, the copyright owner is
    given an opportunity to decide whether and under what conditions
    the copyrighted work should be performed; otherwise, owners could
    be compelled to make involuntary donations to the fund-raising
    activities of causes to which they are opposed. The subclause would
    thus permit copyright owners to prevent public performances of
    their works under section 110(4)(B) by serving notice of objection,
    with the reasons therefor, at least seven days in advance.
      Mere Reception in Public. Unlike the first four clauses of
    section 110, clause (5) is not to any extent a counterpart of the
    "for profit" limitation of the present statute. It applies to
    performances and displays of all types of works, and its purpose is
    to exempt from copyright liability anyone who merely turns on, in a
    public place, an ordinary radio or television receiving apparatus
    of a kind commonly sold to members of the public for private use.
      The basic rationale of this clause is that the secondary use of
    the transmission by turning on an ordinary receiver in public is so
    remote and minimal that no further liability should be imposed. In
    the vast majority of these cases no royalties are collected today,
    and the exemption should be made explicit in the statute. This
    clause has nothing to do with cable television systems and the
    exemptions would be denied in any case where the audience is
    charged directly to see or hear the transmission.
      With respect to section 110(5), the conference substitute
    conforms to the language in the Senate bill. It is the intent of
    the conferees that a small commercial establishment of the type
    involved in Twentieth Century Music Corp. v. Aiken, 422 U.S. 151
    (1975), [95 S.Ct. 2040, 45 L.Ed.2d 84], which merely augmented a
    home-type receiver and which was not of sufficient size to justify,
    as a practical matter, a subscription to a commercial background
    music service, would be exempt. However, where the public
    communication was by means of something other than a home-type
    receiving apparatus, or where the establishment actually makes a
    further transmission to the public, the exemption would not apply.
      On June 17, 1975, the Supreme Court handed down a decision in
    Twentieth Century Music Corp. v. Aiken, 95 S.Ct. 2040 [422 U.S.
    151, 45 L.Ed.2d 84], that raised fundamental questions about the
    proper interpretation of section 110(5). The defendant, owner and
    operator of a fast-service food shop in downtown Pittsburgh, had "a
    radio with outlets to four speakers in the ceiling," which he
    apparently turned on and left on throughout the business day.
    Lacking any performing license, he was sued for copyright
    infringement by two ASCAP members. He lost in the District Court,
    won a reversal in the Third Circuit Court of Appeals, and finally
    prevailed, by a margin of 7-2, in the Supreme Court.
      The Aiken decision is based squarely on the two Supreme Court
    decisions dealing with cable television. In Fortnightly Corp. v.
    United Artists, 392 U.S. 390 [88 S.Ct. 2084, 20 L.Ed.2d 1176,
    rehearing denied 89 S.Ct. 65, 393 U.S. 902, 21 L.Ed.2d 190], and
    again in Teleprompter Corp. v. CBS, 415 U.S. 394 [94 S.Ct. 1129, 39
    L.Ed.2d 415], the Supreme Court has held that a CATV operator was
    not "performing" within the meaning of the 1909 statute, when it
    picked up broadcast signals off the air and retransmitted them to
    subscribers by cable. The Aiken decision extends this
    interpretation of the scope of the 1909 statute's right of "public
    performance for profit" to a situation outside the CATV context
    and, without expressly overruling the decision in Buck v. Jewell-
    LaSalle Realty Co., 283 U.S. 191 (1931) [51 S.Ct. 410, 75 L.Ed.
    971], effectively deprives it of much meaning under the present
    law. For more than forty years the Jewell-LaSalle rule was thought
    to require a business establishment to obtain copyright licenses
    before it could legally pick up any broadcasts off the air and
    retransmit them to its guests and patrons. As reinterpreted by the
    Aiken decision, the rule of Jewell-LaSalle applies only if the
    broadcast being retransmitted was itself unlicensed.
      The majority of the Supreme Court in the Aiken case based its
    decision on a narrow construction of the word "perform" in the 1909
    statute. This basis for the decision is completely overturned by
    the present bill and its broad definition of "perform" in section
    101. The Committee has adopted the language of section 110(5) with
    an amendment expressly denying the exemption in situations where
    "the performance or display is further transmitted beyond the place
    where the receiving apparatus is located"; in doing so, it accepts
    the traditional, pre-Aiken, interpretation of the Jewell-LaSalle
    decision, under which public communication by means other than a
    home receiving set, or further transmission of a broadcast to the
    public, is considered an infringing act.
      Under the particular fact situation in the Aiken case, assuming a
    small commercial establishment and the use of a home receiver with
    four ordinary loudspeakers grouped within a relatively narrow
    circumference from the set, it is intended that the performances
    would be exempt under clause (5). However, the Committee considers
    this fact situation to represent the outer limit of the exemption,
    and believes that the line should be drawn at that point. Thus, the
    clause would exempt small commercial establishments whose
    proprietors merely bring onto their premises standard radio or
    television equipment and turn it on for their customers' enjoyment,
    but it would impose liability where the proprietor has a commercial
    "sound system" installed or converts a standard home receiving
    apparatus (by augmenting it with sophisticated or extensive
    amplification equipment) into the equivalent of a commercial sound
    system. Factors to consider in particular cases would include the
    size, physical arrangement, and noise level of the areas within the
    establishment where the transmissions are made audible or visible,
    and the extent to which the receiving apparatus is altered or
    augmented for the purpose of improving the aural or visual quality
    of the performance for individual members of the public using those
    areas.
      Agricultural Fairs. The Committee also amended clause (6) of
    section 110 of S. 22 as adopted by the Senate. As amended, the
    provision would exempt "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 extends only to the governmental body
    or nonprofit organization sponsoring the fair; the amendment makes
    clear that, while such a body or organization cannot itself be held
    vicariously liable for infringements by concessionaires at the
    fair, the concessionaires themselves enjoy no exemption under the
    clause.
      Retail Sale of Phonorecords. Clause (7) provides that the
    performance of a nondramatic musical work or of a sound recording
    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, is not an infringement of copyright. This exemption
    applies only if the performance is not transmitted beyond the place
    where the establishment is located and is within the immediate area
    where the sale is occurring.
      Transmission to Handicapped Audiences. The new clause (8) of
    subsection 110, which had been added to S. 22 by the Senate
    Judiciary Committee when it reported the bill on November 20, 1975,
    and had been adopted by the Senate on February 19, 1976, was
    substantially amended by the Committee. Under the amendment, the
    exemption would apply only to performances of "nondramatic literary
    works" by means of "a transmission specifically designed for and
    primarily directed to" one or the other of two defined classes of
    handicapped persons: (1) "blind or other handicapped persons who
    are unable to read normal printed material as a result of their
    handicap" or (2) "deaf or other handicapped persons who are unable
    to hear the aural signals accompanying a transmission." Moreover,
    the exemption would be applicable only if the performance is
    "without any purpose of direct or indirect commercial advantage,"
    and if the transmission takes place through government facilities
    or through the facilities of a noncommercial educational broadcast
    station, a radio subcarrier authorization (SCA), or a cable system.
                                AMENDMENTS                            
      2005 - Pub. L. 109-9, Sec. 202(a)(4), inserted two pars. relating
    to par. (11) at end of concluding provisions.
      Par. (11). Pub. L. 109-9, Sec. 202(a)(1)-(3), added par. (11).
      2002 - Pub. L. 107-273, Sec. 13301(b)(2), inserted concluding
    provisions relating to par. (2).
      Par. (2). Pub. L. 107-273, Sec. 13301(b)(1), added par. (2) and
    struck out former par. (2) which read as follows: "performance of a
    nondramatic literary or musical work or display of a work, by or in
    the course of a transmission, if - 
        "(A) the performance or display is a regular part of the
      systematic instructional activities of a governmental body or a
      nonprofit educational institution; and
        "(B) the performance or display is directly related and of
      material assistance to the teaching content of the transmission;
      and
        "(C) the transmission is made primarily for - 
          "(i) reception in classrooms or similar places normally
        devoted to instruction, or
          "(ii) reception by persons to whom the transmission is
        directed because their disabilities or other special
        circumstances prevent their attendance in classrooms or similar
        places normally devoted to instruction, or
          "(iii) reception by officers or employees of governmental
        bodies as a part of their official duties or employment;".
      Par. (4)(B). Pub. L. 107-273, Sec. 13210(6), substituted colon
    for semicolon at end of introductory provisions.
      1999 - Par. (5)(A). Pub. L. 106-44 redesignated cls. (A) and (B)
    as (i) and (ii), respectively.
      1998 - Pub. L. 105-298, Sec. 202(a)(2), inserted concluding
    provisions relating to par. (5).
      Par. (5). Pub. L. 105-298, Sec. 202(a)(1), designated existing
    provisions as subpar. (A), inserted "except as provided in
    subparagraph (B)," after "(A)", and added subpar. (B).
      Par. (7). Pub. L. 105-298, Sec. 202(b), inserted "or of the
    audiovisual or other devices utilized in such performance," after
    "phonorecords of the work,".
      1997 - Par. (8). Pub. L. 105-80, Sec. 12(a)(6)(A), substituted
    semicolon for period at end.
      Par. (9). Pub. L. 105-80, Sec. 12(a)(6)(B), substituted "; and"
    for period at end.
      Par. (10). Pub. L. 105-80, Sec. 12(a)(6)(C), substituted
    "paragraph (4)" for "paragraph 4 above".
      1982 - Par. (10). Pub. L. 97-366 added par. (10).
                     EFFECTIVE DATE OF 1998 AMENDMENT                 
      Amendment by Pub. L. 105-298 effective 90 days after Oct. 27,
    1998, see section 207 of Pub. L. 105-298, set out as a note under
    section 101 of this title.
                     EFFECTIVE DATE OF 1982 AMENDMENT                 
      Amendment by Pub. L. 97-366 effective 30 days after Oct. 25,
    1982, see section 2 of Pub. L. 97-366, set out as a note under
    section 708 of this title.
-FOOTNOTE-
    (!1) So in original. Probably should be "concessionaire".
-End-
-CITE-
    17 USC Sec. 111                                             01/03/2007
-EXPCITE-
    TITLE 17 - COPYRIGHTS
    CHAPTER 1 - SUBJECT MATTER AND SCOPE OF COPYRIGHT
-HEAD-
    Sec. 111. Limitations on exclusive rights: Secondary transmissions
-STATUTE-
      (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
      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. - 
        (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 system shall not include
        subscribers and amounts collected from subscribers receiving
        secondary transmissions 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 paragraphs (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 upon authorization by the
      Copyright Royalty Judges.
        (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);
          (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 Copyright Royalty
        Judges, in accordance with requirements that the Copyright
        Royalty Judges 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 Copyright
        Royalty Judges shall determine whether there exists a
        controversy concerning the distribution of royalty fees. If the
        Copyright Royalty Judges determine that no such controversy
        exists, the Copyright Royalty Judges shall authorize the
        Librarian of Congress to proceed to distribute such fees to the
        copyright owners entitled to receive them, or to their
        designated agents, subject to the deduction of reasonable
        administrative costs under this section. If the Copyright
        Royalty Judges find the existence of a controversy, the
        Copyright Royalty Judges shall, pursuant to chapter 8 of this
        title, conduct a proceeding to determine the distribution of
        royalty fees.
          (C) During the pendency of any proceeding under this
        subsection, the Copyright Royalty Judges shall have the
        discretion to authorize the Librarian of Congress to proceed to
        distribute any amounts that are not in controversy.
      (e) Nonsimultaneous Secondary Transmissions by Cable Systems. - 
        (1) Notwithstanding those provisions of the second paragraph of
      subsection (f) relating to nonsimultaneous secondary
      transmissions by a cable system, any such transmissions are
      actionable as an act of infringement under section 501, and are
      fully subject to the remedies provided by sections 502 through
      506 and sections 509 and 510, unless - 
          (A) the program on the videotape is transmitted no more than
        one time to the cable system's subscribers; and
          (B) the copyrighted program, episode, or motion picture
        videotape, including the commercials contained within such
        program, episode, or picture, is transmitted without deletion
        or editing; and
          (C) an owner or officer of the cable system (i) prevents the
        duplication of the videotape while in the possession of the
        system, (ii) prevents unauthorized duplication while in the
        possession of the facility making the videotape for the system
        if the system owns or controls the facility, or takes
        reasonable precautions to prevent such duplication if it does
        not own or control the facility, (iii) takes adequate
        precautions to prevent duplication while the tape is being
        transported, and (iv) subject to clause (2), erases or
        destroys, or causes the erasure or destruction of, the
        videotape; and
          (D) within forty-five days after the end of each calendar
        quarter, an owner or officer of the cable system executes an
        affidavit attesting (i) to the steps and precautions taken to
        prevent duplication of the videotape, and (ii) subject to
        clause (2), to the erasure or destruction of all videotapes
        made or used during such quarter; and
          (E) such owner or officer places or causes each such
        affidavit, and affidavits received pursuant to clause (2)(C),
        to be placed in a file, open to public inspection, at such
        system's main office in the community where the transmission is
        made or in the nearest community where such system maintains an
        office; and
          (F) the nonsimultaneous transmission is one that the cable
        system would be authorized to transmit under the rules,
        regulations, and authorizations of the Federal Communications
        Commission in effect at the time of the nonsimultaneous
        transmission if the transmission had been made simultaneously,
        except that this subclause shall not apply to inadvertent or
        accidental transmissions.
        (2) If a cable system transfers to any person a videotape of a
      program nonsimultaneously transmitted by it, such transfer is
      actionable as an act of infringement under section 501, and is
      fully subject to the remedies provided by sections 502 through
      506 and 509, except that, pursuant to a written, nonprofit
      contract providing for the equitable sharing of the costs of such
      videotape and its transfer, a videotape nonsimultaneously
      transmitted by it, in accordance with clause (1), may be
      transferred by one cable system in Alaska to another system in
      Alaska, by one cable system in Hawaii permitted to make such
      nonsimultaneous transmissions to another such cable system in
      Hawaii, or by one cable system in Guam, the Northern Mariana
      Islands, or the Trust Territory of the Pacific Islands, to
      another cable system in any of those three territories, if - 
          (A) each such contract is available for public inspection in
        the offices of the cable systems involved, and a copy of such
        contract is filed, within thirty days after such contract is
        entered into, with the Copyright Office (which Office shall
        make each such contract available for public inspection); and
          (B) the cable system to which the videotape is transferred
        complies with clause (1)(A), (B), (C)(i), (iii), and (iv), and
        (D) through (F); and
          (C) such system provides a copy of the affidavit required to
        be made in accordance with clause (1)(D) to each cable system
        making a previous nonsimultaneous transmission of the same
        videotape.
        (3) This subsection shall not be construed to supersede the
      exclusivity protection provisions of any existing agreement, or
      any such agreement hereafter entered into, between a cable system
      and a television broadcast station in the area in which the cable
      system is located, or a network with which such station is
      affiliated.
        (4) As used in this subsection, the term "videotape", and each
      of its variant forms, means the reproduction of the images and
      sounds of a program or programs broadcast by a television
      broadcast station licensed by the Federal Communications
      Commission, regardless of the nature of the material objects,
      such as tapes or films, in which the reproduction is embodied.
      (f) Definitions. - As used in this section, the following terms
    and their variant forms mean the following:
        A "primary transmission" is a transmission made to the public
      by the transmitting facility whose signals are being received and
      further transmitted by the secondary transmission service,
      regardless of where or when the performance or display was first
      transmitted.
        A "secondary transmission" is the further transmitting of a
      primary transmission simultaneously with the primary
      transmission, or nonsimultaneously with the primary transmission
      if by a "cable system" not located in whole or in part within the
      boundary of the forty-eight contiguous States, Hawaii, or Puerto
      Rico: Provided, however, That a nonsimultaneous further
      transmission by a cable system located in Hawaii of a primary
      transmission shall be deemed to be a secondary transmission if
      the carriage of the television broadcast signal comprising such
      further transmission is permissible under the rules, regulations,
      or authorizations of the Federal Communications Commission.
        A "cable system" is a facility, located in any State,
      Territory, Trust Territory, or Possession, that in whole or in
      part receives signals transmitted or programs broadcast by one or
      more television broadcast stations licensed by the Federal
      Communications Commission, and makes secondary transmissions of
      such signals or programs by wires, cables, microwave, or other
      communications channels to subscribing members of the public who
      pay for such service. For purposes of determining the royalty fee
      under subsection (d)(1), two or more cable systems in contiguous
      communities under common ownership or control or operating from
      one headend shall be considered as one system.
        The "local service area of a primary transmitter", in the case
      of a television broadcast station, comprises the area in which
      such station is entitled to insist upon its signal being
      retransmitted by a cable system pursuant to the rules,
      regulations, and authorizations of the Federal Communications
      Commission in effect on April 15, 1976, or such station's
      television market as defined in section 76.55(e) of title 47,
      Code of Federal Regulations (as in effect on September 18, 1993),
      or any modifications to such television market made, on or after
      September 18, 1993, pursuant to section 76.55(e) or 76.59 of
      title 47 of the Code of Federal Regulations, or in the case of a
      television broadcast station licensed by an appropriate
      governmental authority of Canada or Mexico, the area in which it
      would be entitled to insist upon its signal being retransmitted
      if it were a television broadcast station subject to such rules,
      regulations, and authorizations. In the case of a low power
      television station, as defined by the rules and regulations of
      the Federal Communications Commission, the "local service area of
      a primary transmitter" comprises the area within 35 miles of the
      transmitter site, except that in the case of such a station
      located in a standard metropolitan statistical area which has one
      of the 50 largest populations of all standard metropolitan
      statistical areas (based on the 1980 decennial census of
      population taken by the Secretary of Commerce), the number of
      miles shall be 20 miles. The "local service area of a primary
      transmitter", in the case of a radio broadcast station, comprises
      the primary service area of such station, pursuant to the rules
      and regulations of the Federal Communications Commission.
        A "distant signal equivalent" is the value assigned to the
      secondary transmission of any nonnetwork television programming
      carried by a cable system in whole or in part beyond the local
      service area of the primary transmitter of such programming. It
      is computed by assigning a value of one to each independent
      station and a value of one-quarter to each network station and
      noncommercial educational station for the nonnetwork programming
      so carried pursuant to the rules, regulations, and authorizations
      of the Federal Communications Commission. The foregoing values
      for independent, network, and noncommercial educational stations
      are subject, however, to the following exceptions and
      limitations. Where the rules and regulations of the Federal
      Communications Commission require a cable system to omit the
      further transmission of a particular program and such rules and
      regulations also permit the substitution of another program
      embodying a performance or display of a work in place of the
      omitted transmission, or where such rules and regulations in
      effect on the date of enactment of this Act permit a cable
      system, at its election, to effect such deletion and substitution
      of a nonlive program or to carry additional programs not
      transmitted by primary transmitters within whose local service
      area the cable system is located, no value shall be assigned for
      the substituted or additional program; where the rules,
      regulations, or authorizations of the Federal Communications
      Commission in effect on the date of enactment of this Act permit
      a cable system, at its election, to omit the further transmission
      of a particular program and such rules, regulations, or
      authorizations also permit the substitution of another program
      embodying a performance or display of a work in place of the
      omitted transmission, the value assigned for the substituted or
      additional program shall be, in the case of a live program, the
      value of one full distant signal equivalent multiplied by a
      fraction that has as its numerator the number of days in the year
      in which such substitution occurs and as its denominator the
      number of days in the year. In the case of a station carried
      pursuant to the late-night or specialty programming rules of the
      Federal Communications Commission, or a station carried on a part-
      time basis where full-time carriage is not possible because the
      cable system lacks the activated channel capacity to retransmit
      on a full-time basis all signals which it is authorized to carry,
      the values for independent, network, and noncommercial
      educational stations set forth above, as the case may be, shall
      be multiplied by a fraction which is equal to the ratio of the
      broadcast hours of such station carried by the cable system to
      the total broadcast hours of the station.
        A "network station" is a television broadcast station that is
      owned or operated by, or affiliated with, one or more of the
      television networks in the United States providing nationwide
      transmissions, and that transmits a substantial part of the
      programming supplied by such networks for a substantial part of
      that station's typical broadcast day.
        An "independent station" is a commercial television broadcast
      station other than a network station.
        A "noncommercial educational station" is a television station
      that is a noncommercial educational broadcast station as defined
      in section 397 of title 47.
-SOURCE-
    (Pub. L. 94-553, title I, Sec. 101, Oct. 19, 1976, 90 Stat. 2550;
    Pub. L. 99-397, Secs. 1, 2(a), (b), Aug. 27, 1986, 100 Stat. 848;
    Pub. L. 100-667, title II, Sec. 202(1), Nov. 16, 1988, 102 Stat.
    3949; Pub. L. 101-318, Sec. 3(a), July 3, 1990, 104 Stat. 288; Pub.
    L. 103-198, Sec. 6(a), Dec. 17, 1993, 107 Stat. 2311; Pub. L. 103-
    369, Sec. 3, Oct. 18, 1994, 108 Stat. 3480; Pub. L. 104-39, Sec.
    5(b), Nov. 1, 1995, 109 Stat. 348; Pub. L. 106-113, div. B, Sec.
    1000(a)(9) [title I, Sec. 1011(a)(1), (2), (b)(1)], Nov. 29, 1999,
    113 Stat. 1536, 1501A-543; Pub. L. 108-419, Sec. 5(a), Nov. 30,
    2004, 118 Stat. 2361; Pub. L. 108-447, div. J, title IX [title I,
    Sec. 107(b)], Dec. 8, 2004, 118 Stat. 3406; Pub. L. 109-303, Sec.
    4(a), Oct. 6, 2006, 120 Stat. 1481.)
-MISC1-
                       HISTORICAL AND REVISION NOTES                   
                         HOUSE REPORT NO. 94-1476                     
      Introduction and General Summary. The complex and economically
    important problem of "secondary transmissions" is considered in
    section 111. For the most part, the section is directed at the
    operation of cable television systems and the terms and conditions
    of their liability for the retransmission of copyrighted works.
    However, other forms of secondary transmissions are also
    considered, including apartment house and hotel systems, wired
    instructional systems, common carriers, nonprofit "boosters" and
    translators, and secondary transmissions of primary transmissions
    to controlled groups.
      Cable television systems are commercial subscription services
    that pick up broadcasts of programs originated by others and
    retransmit them to paying subscribers. A typical system consists of
    a central antenna which receives and amplifies television signals
    and a network of cables through which the signals are transmitted
    to the receiving sets of individual subscribers. In addition to an
    installation charge, the subscribers pay a monthly charge for the
    basic service averaging about six dollars. A large number of these
    systems provide automated programing. A growing number of CATV
    systems also originate programs, such as movies and sports, and
    charge additional fees for this service (pay-cable).
      The number of cable systems has grown very rapidly since their
    introduction in 1950, and now total about 3,450 operating systems,
    servicing 7,700 communities. Systems currently in operation reach
    about 10.8 million homes. It is reported that the 1975 total
    subscriber revenues of the cable industry were approximately $770
    million.
      Pursuant to two decisions of the Supreme Court (Fortnightly Corp.
    v. United Artist Television, Inc., 392 U.S. 390 (1968) [88 S.Ct.
    2084, 20 L.Ed.2d 1176, rehearing denied 89 S.Ct. 65, 393 U.S. 902,
    21 L.Ed.2d 190], and Teleprompter Corp. v. CBS, Inc., 415 U.S. 394
    (1974)) [94 S.Ct. 1129, 39 L.Ed.2d 415], under the 1909 copyright
    law, the cable television industry has not been paying copyright
    royalties for its retransmission of over-the-air broadcast signals.
    Both decisions urged the Congress, however, to consider and
    determine the scope and extent of such liability in the pending
    revision bill.
      The difficult problem of determining the copyright liability of
    cable television systems has been before the Congress since 1965.
    In 1967, this Committee sought to address and resolve the issues in
    H.R. 2512, an early version of the general revision bill (see H.R.
    Rep. No. 83, 90th Cong., 1st Sess.). However, largely because of
    the cable-copyright impasse, the bill died in the Senate.
      The history of the attempts to find a solution to the problem
    since 1967 has been explored thoroughly in the voluminous hearings
    and testimony on the general revision bill, and has also been
    succinctly summarized by the Register of Copyrights in her Second
    Supplementary Report, Chapter V.
      The Committee now has before it the Senate bill which contains a
    series of detailed and complex provisions which attempt to resolve
    the question of the copyright liability of cable television
    systems. After extensive consideration of the Senate bill, the
    arguments made during and after the hearings, and of the issues
    involved, this Committee has also concluded that there is no simple
    answer to the cable-copyright controversy. In particular, any
    statutory scheme that imposes copyright liability on cable
    television systems must take account of the intricate and
    complicated rules and regulations adopted by the Federal
    Communications Commission to govern the cable television industry.
    While the Committee has carefully avoided including in the bill any
    provisions which would interfere with the FCC's rules or which
    might be characterized as affecting "communications policy", the
    Committee has been cognizant of the interplay between the copyright
    and the communications elements of the legislation.
      We would, therefore, caution the Federal Communications
    Commission, and others who make determinations concerning
    communications policy, not to rely upon any action of this
    Committee as a basis for any significant changes in the delicate
    balance of regulation in areas where the Congress has not resolved
    the issue. Specifically, we would urge the Federal Communications
    Commission to understand that it was not the intent of this bill to
    touch on issues such as pay cable regulation or increased use of
    imported distant signals. These matters are ones of communications
    policy and should be left to the appropriate committees in the
    Congress for resolution.
      In general, the Committee believes that cable systems are
    commercial enterprises whose basic retransmission operations are
    based on the carriage of copyrighted program material and that
    copyright royalties should be paid by cable operators to the
    creators of such programs. The Committee recognizes, however, that
    it would be impractical and unduly burdensome to require every
    cable system to negotiate with every copyright owner whose work was
    retransmitted by a cable system. Accordingly, the Committee has
    determined to maintain the basic principle of the Senate bill to
    establish a compulsory copyright license for the retransmission of
    those over-the-air broadcast signals that a cable system is
    authorized to carry pursuant to the rules and regulations of the
    FCC.
      The compulsory license is conditioned, however, on certain
    requirements and limitations. These include compliance with
    reporting requirements, payment of the royalty fees established in
    the bill, a ban on the substitution or deletion of commercial
    advertising, and geographic limits on the compulsory license for
    copyrighted programs broadcast by Canadian or Mexican stations.
    Failure to comply with these requirements and limitations subjects
    a cable system to a suit for copyright infringement and the
    remedies provided under the bill for such actions.
      In setting a royalty fee schedule for the compulsory license, the
    Committee determined that the initial schedule should be
    established in the bill. It recognized, however, that adjustments
    to the schedule would be required from time to time. Accordingly,
    the Copyright Royalty Commission, established in chapter 8 [Sec.
    801 et seq. of this title], is empowered to make the adjustments in
    the initial rates, at specified times, based on standards and
    conditions set forth in the bill.
      In setting an initial fee schedule, the Senate bill based the
    royalty fee on a sliding scale related to the gross receipts of a
    cable system for providing the basic retransmission service and
    rejected a statutory scheme that would distinguish between "local"
    and "distant" signals. The Committee determined, however, that
    there was no evidence that the retransmission of "local" broadcast
    signals by a cable operator threatens the existing market for
    copyright program owners. Similarly, the retransmission of network
    programing, including network programing which is broadcast in
    "distant" markets, does not injure the copyright owner. The
    copyright owner contracts with the network on the basis of his
    programing reaching all markets served by the network and is
    compensated accordingly.
      By contrast, their retransmission of distant non-network
    programing by cable systems causes damage to the copyright owner by
    distributing the program in an area beyond which it has been
    licensed. Such retransmission adversely affects the ability of the
    copyright owner to exploit the work in the distant market. It is
    also of direct benefit to the cable system by enhancing its ability
    to attract subscribers and increase revenues. For these reasons,
    the Committee has concluded that the copyright liability of cable
    television systems under the compulsory license should be limited
    to the retransmission of distant non-network programing.
      In implementing this conclusion, the Committee generally followed
    a proposal submitted by the cable and motion picture industries,
    the two industries most directly affected by the establishment of
    copyright royalties for cable television systems. Under the
    proposal, the royalty fee is determined by a two step computation.
    First, a value called a "distant signal equivalent" is assigned to
    all "distant" signals. Distant signals are defined as signals
    retransmitted by a cable system, in whole or in part, outside the
    local service area of the primary transmitter. Different values are
    assigned to independent, network, and educational stations because
    of the different amounts of viewing of non-network programing
    carried by such stations. For example, the viewing of non-network
    programs on network stations is considered to approximate 25
    percent. These values are then combined and a scale of percentages
    is applied to the cumulative total.
      The Committee also considered various proposals to exempt certain
    categories of cable systems from royalty payments altogether. The
    Committee determined that the approach of the Senate bill to
    require some payment by every cable system is sound, but
    established separate fee schedules for cable systems whose gross
    receipts for the basic retransmission service do not exceed either
    $80,000 or $160,000 semiannually. It is the Committee's view that
    the fee schedules adopted for these systems are now appropriate,
    based on their relative size and the services performed.
      All the royalty payments required under the bill are paid on a
    semiannual basis to the Register of Copyrights. Each year they are
    distributed by the Copyright Royalty Commission to those copyright
    owners who may validly claim that their works were the subject of
    distant non-network retransmissions by cable systems.
      Based on current estimates supplied to the Committee, the total
    royalty fees paid under the initial schedule established in the
    bill should approximate $8.7 million. Compared with the present
    number of cable television subscribers, calculated at 10.8 million,
    copyright payments under the bill would therefore approximate 81
    cents per subscriber per year. The Committee believes that such
    payments are modest and will not retard the orderly development of
    the cable television industry or the service it provides to its
    subscribers.
      Analysis of Provisions. Throughout section 111, the operative
    terms are "primary transmission" and "secondary transmission."
    These terms are defined in subsection (f) entirely in relation to
    each other. In any particular case, the "primary" transmitter is
    the one whose signals are being picked up and further transmitted
    by a "secondary" transmitter which in turn, is someone engaged in
    "the further transmitting of a primary transmission simultaneously
    with the primary transmission." With one exception provided in
    subsection (f) and limited by subsection (e), the section does not
    cover or permit a cable system, or indeed any person, to tape or
    otherwise record a program off-the-air and later to transmit the
    program from the tape or record to the public. The one exception
    involves cable systems located outside the continental United
    States, but not including cable systems in Puerto Rico, or, with
    limited exceptions, Hawaii. These systems are permitted to record
    and retransmit programs under the compulsory license, subject to
    the restrictive conditions of subsection (e), because off-the-air
    signals are generally not available in the offshore areas.
      General Exemptions. Certain secondary transmissions are given a
    general exemption under clause (1) of section 111(a). The first of
    these applies to secondary transmissions consisting "entirely of
    the relaying, by the management of a hotel, apartment house, or
    similar establishment" of a transmission to the private lodgings of
    guests or residents and provided "no direct charge is made to see
    or hear the secondary transmission."
      The exemption would not apply if the secondary transmission
    consists of anything other than the mere relay of ordinary
    broadcasts. The cutting out of advertising, the running in of new
    commercials, or any other change in the signal relayed would
    subject the secondary transmitter to full liability. Moreover, the
    term "private lodgings" is limited to rooms used as living quarters
    or for private parties, and does not include dining rooms, meeting
    halls, theatres, ballrooms, or similar places that are outside of a
    normal circle of a family and its social acquaintances. No special
    exception is needed to make clear that the mere placing of an
    ordinary radio or television set in a private hotel room does not
    constitute an infringement.
      Secondary Transmissions of Instructional Broadcasts. Clause (2)
    of section 111(a) is intended to make clear that an instructional
    transmission within the scope of section 110(2) is exempt whether
    it is a "primary transmission" or a "secondary transmission."
      Carriers. The general exemption under section 111 extends to
    secondary transmitters that act solely as passive carriers. Under
    clause (3), a carrier is exempt if it "has no direct or indirect
    control over the content or selection of the primary transmission
    or over the particular recipients of the secondary transmission."
    For this purpose its activities must "consist solely of providing
    wires, cables, or other communications channels for the use of
    others."
      Clause (4) would exempt the activities of secondary transmitters
    that operate on a completely nonprofit basis. The operations of
    nonprofit "translators" or "boosters," which do nothing more than
    amplify broadcast signals and retransmit them to everyone in an
    area for free reception, would be exempt if there is no "purpose of
    direct or indirect commercial advantage," and if there is no charge
    to the recipients "other than assessments necessary to defray the
    actual and reasonable costs of maintaining and operating the
    secondary transmission service." This exemption does not apply to a
    cable television system.
      Secondary Transmissions of Primary Transmissions to Controlled
    Group. Notwithstanding the provisions of subsections (a) and (c),
    the secondary transmission to the public of a primary transmission
    embodying a performance or display is actionable as an act of
    infringement 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. Examples of transmissions not
    intended for the general public are background music services such
    as MUZAK, closed circuit broadcasts to theatres, pay television
    (STV) or pay-cable.
      The Senate bill contains a provision, however, stating that the
    secondary transmission does not constitute an act of infringement
    if the carriage of the signals comprising the secondary
    transmission is required under the rules and regulations of the
    FCC. The exclusive purpose of this provision is to exempt a cable
    system from copyright liability if the FCC should require cable
    systems to carry to their subscribers a "scrambled" pay signal of a
    subscription television station.
      The Committee is concerned, however, that the Senate bill is not
    clearly limited to the situation where a cable system is required
    by the FCC to carry a "scrambled" pay television signal. The
    Committee believes that the provision should not include any
    authority or permission to "unscramble" the signal. Further, the
    Senate bill does not make clear that the exception would not apply
    if the primary transmission is made by a cable system or cable
    system network transmitting its own originated program, e.g., pay-
    cable. For these reasons, the subsection was amended to provide
    that the exception would only apply if (1) the primary transmission
    to a controlled group is made by a broadcast station licensed by
    the FCC; (2) the carriage of the signal is required by FCC rules
    and regulations; and (3) the signal of the primary transmitter is
    not altered or changed in any way by the secondary transmitter.
      Compulsory License. Section 111(c) establishes the compulsory
    license for cable systems generally. It provides that, subject to
    the provisions of clauses (2), (3) and (4), the secondary
    transmission to the public by a cable system of a primary
    transmission made by a broadcast station licensed by the FCC or by
    an appropriate governmental authority of Canada or Mexico is
    subject to compulsory licensing upon compliance with the provisions
    of subsection (d) where the carriage of the signals comprising the
    secondary transmission is permissible under the rules and
    regulations of the FCC. The compulsory license applies, therefore,
    to the carriage of over-the-air broadcast signals and is
    inapplicable to the secondary transmission of any nonbroadcast
    primary transmission such as a program originated by a cable system
    or a cable network. The latter would be subject to full copyright
    liability under other sections of the legislation.
      Limitations on the Compulsory License. Sections 111(c)(2), (3)
    and (4) establish limitations on the scope of the compulsory
    license, and provide that failure to comply with these limitations
    subjects a cable system to a suit for infringement and all the
    remedies provided in the legislation for such actions.
      Section 111(c)(2) provides that the "willful or repeated"
    carriage of signals not permissible under the rules and regulations
    of the FCC subjects a cable system to full copyright liability. The
    words "willful or repeated" are used to prevent a cable system from
    being subjected to severe penalties for innocent or casual acts
    ("Repeated" does not mean merely "more than once," of course;
    rather, it denotes a degree of aggravated negligence which borders
    on willfulness. Such a condition would not exist in the case of an
    innocent mistake as to what signals or programs may properly be
    carried under the FCC's complicated rules). Section 111(c)(2) also
    provides that a cable system is subject to full copyright liability
    where the cable system has not recorded the notice, deposited the
    statement of account, or paid the royalty fee required by
    subsection (d). The Committee does not intend, however, that a good
    faith error by the cable system in computing the amount due would
    subject it to full liability as an infringer. The Committee expects
    that in most instances of this type the parties would be able to
    work out the problem without resort to the courts.
      Commercial Substitution. Section 111(c)(3) provides that a cable
    system is fully subject to the remedies provided in this
    legislation for copyright infringement if the cable system
    willfully alters, through changes, deletions, or additions, the
    content of a particular program or any commercial advertising or
    station announcements transmitted by the primary transmitter
    during, or immediately before or after, the transmission of the
    program. In the Committee's view, any willful deletion,
    substitution, or insertion of commercial advertisements of any
    nature by a cable system or changes in the program content of the
    primary transmission, significantly alters the basic nature of the
    cable retransmission service, and makes its function similar to
    that of a broadcaster. Further, the placement of substitute
    advertising in a program by a cable system on a "local" signal
    harms the advertiser and, in turn, the copyright owner, whose
    compensation for the work is directly related to the size of the
    audience that the advertiser's message is calculated to reach. On a
    "distant" signal, the placement of substitute advertising harms the
    local broadcaster in the distant market because the cable system is
    then competing for local advertising dollars without having
    comparable program costs. The Committee has therefore attempted
    broadly to proscribe the availability of the compulsory license if
    a cable system substitutes commercial messages. Included in the
    prohibition are commercial messages and station announcements not
    only during, but also immediately before or after the program, so
    as to insure a continuous ban on commercial substitution from one
    program to another. In one situation, however, the Committee has
    permitted such substitution when the commercials are inserted by
    those engaged in television commercial advertising market research.
    This exception is limited to those situations where the research
    company has obtained the consent of the advertiser who purchased
    the original commercial advertisement, the television station whose
    signal is retransmitted, and the cable system, and provided further
    that no income is derived from the sale of such commercial time.
      Canadian and Mexican Signals. Section 111(c)(4) provides
    limitations on the compulsory license with respect to foreign
    signals carried by cable systems from Canada or Mexico. Under the
    Senate bill, the carriage of any foreign signals by a cable system
    would have been subject to full copyright liability, because the
    compulsory license was limited to the retransmission of broadcast
    stations licensed by the FCC. The Committee recognized, however,
    that cable systems primarily along the northern and southern border
    have received authorization from the FCC to carry broadcast signals
    of certain Canadian and Mexican stations.
      In the Committee's view, the authorization by the FCC to a cable
    system to carry a foreign signal does not resolve the copyright
    question of the royalty payment that should be made for copyrighted
    programs originating in the foreign country. The latter raises
    important international questions of the protection to be accorded
    foreign copyrighted works in the United States. While the Committee
    has established a general compulsory licensing scheme for the
    retransmission of copyrighted works of U.S. nationals, a broad
    compulsory license scheme for all foreign works does not appear
    warranted or justified. Thus, for example, if in the future the
    signal of a British, French, or Japanese station were retransmitted
    in the United States by a cable system, full copyright liability
    would apply.
      With respect to Canadian and Mexican signals, the Committee found
    that a special situation exists regarding the carriage of these
    signals by U.S. cable systems on the northern and southern borders,
    respectively. The Committee determined, therefore, that with
    respect to Canadian signals the compulsory license would apply in
    an area located 150 miles from the U.S.-Canadian border, or south
    from the border to the 42nd parallel of latitude, whichever
    distance is greater. Thus the cities of Detroit, Pittsburgh,
    Cleveland, Green Bay and Seattle would be included within the
    compulsory license area, while cities such as New York,
    Philadelphia, Chicago, and San Francisco would be located outside
    the area.
      With respect to Mexican signals, the Commission determined that
    the compulsory license would apply only in the area in which such
    signals may be received by a U.S. cable system by means of direct
    interception of a free space radio wave. Thus, full copyright
    liability would apply if a cable system were required to use any
    equipment or device other than a receiving antenna to bring the
    signal to the community of the cable system.
      Further, to take account of those cable systems that are
    presently carrying or are specifically authorized to carry Canadian
    or Mexican signals, pursuant to FCC rules and regulations, and
    whether or not within the zones established, the Committee
    determined to grant a compulsory license for the carriage of those
    specific signals on those cable systems as in effect on April 15,
    1976.
      The Committee wishes to stress that cable systems operating
    within these zones are fully subject to the payment of royalty fees
    under the compulsory license for those foreign signals
    retransmitted. The copyright owners of the works transmitted may
    appear before the Copyright Royalty Commission and, pursuant to the
    provisions of this legislation, file claims to their fair share of
    the royalties collected. Outside the zones, however, full copyright
    liability would apply as would all the remedies of the legislation
    for any act of infringement.
      Requirements for a Compulsory License. The compulsory license
    provided for in section 111(c) is contingent upon fulfillment of
    the requirements set forth in section 111(d). Subsection (d)(1)
    directs that at least one month before the commencement of
    operations, or within 180 days after the enactment of this act
    [Oct. 19, 1976], whichever is later, a cable system must record in
    the Copyright Office a notice, including a statement giving the
    identity and address of the person who owns or operates the
    secondary transmission service or who has power to exercise primary
    control over it, together with the name and location of the primary
    transmitter whose signals are regularly carried by the cable
    system. Signals "regularly carried" by the system mean those
    signals which the Federal Communications Commission has
    specifically authorized the cable system to carry, and which are
    actually carried by the system on a regular basis. It is also
    required that whenever the ownership or control or regular signal
    carriage complement of the system changes, the cable system must
    within 30 days record any such changes in the Copyright Office.
    Cable systems must also record such further information as the
    Register of Copyrights shall prescribe by regulation.
      Subsection (d)(2) directs cable systems whose secondary
    transmissions have been subject to compulsory licensing under
    subsection (c) to deposit with the Register of Copyrights a semi-
    annual statement of account. The dates for filing such statements
    of account and the six-month period which they are to cover are to
    be determined by the Register of Copyrights after consultation with
    the Copyright Royalty Commission. In addition to other such
    information that the Register may prescribe by regulation, the
    statements of account are to specify 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 carried by the system, the total number of
    subscribers to the system, and the gross amounts paid to the system
    for the basic service of providing secondary transmissions. If any
    non-network television programming was retransmitted by the cable
    system beyond the local service area of the primary transmitter,
    pursuant to the rules of the Federal Communications Commission,
    which under certain circumstances permit the substitution or
    addition of television signals not regularly carried, the cable
    system must deposit a special statement of account listing the
    times, dates, stations and programs involved in such substituted or
    added carriage.
      Copyright Royalty Payments. Subsection (d)(2)(B), (C) and (D)
    require cable systems to deposit royalty fee payments for the
    period covered by the statements of account. These payments are to
    be computed on the basis of specified percentages of the gross
    receipts from cable subscribers during the period covered by the
    statement. For purposes of computing royalty payments, only
    receipts for the basic service of providing secondary transmissions
    of primary broadcast transmitters are to be considered. Other
    receipts from subscribers, such as those for pay-cable services or
    installation charges, are not included in gross receipts.
      Subsection (d)(2)(B) provides that, except in the case of a cable
    system that comes within the gross receipts limitations of
    subclauses (C) and (D), the royalty fee is computed in the
    following manner:
      Every cable system pays .675 of 1 percent of its gross receipts
    for the privilege of retransmitting distant non-network
    programming, such amount to be applied against the fee, if any,
    payable under the computation for "distant signal equivalents." The
    latter are determined by adding together the values assigned to the
    actual number of distant television stations carried by a cable
    system. The purpose of this initial rate, applicable to all cable
    systems in this class, is to establish a basic payment, whether or
    not a particular cable system elects to transmit distant non-
    network programming. It is not a payment for the retransmission of
    purely "local" signals, as is evident from the provision that it
    applies to and is deductible from the fee payable for any "distant
    signal equivalents."
      The remaining provisions of subclause (B) establish the following
    rates for "distant signal equivalents:"
      The rate from zero to one distant signal equivalent is .675 of 1
    percent of gross subscriber revenues. An additional .425 of 1
    percent of gross subscriber revenues is to be paid for each of the
    second, third and fourth distant signal equivalents that are
    carried. A further payment of .2 of 1 percent of gross subscriber
    revenues is to be made for each distant signal equivalent after the
    fourth. Any fraction of a distant signal equivalent is to be
    computed at its fractional value and where a cable system is
    located partly within and partly without the local service area of
    a primary transmitter, the gross receipts subject to the percentage
    payment are limited to those gross receipts derived from
    subscribers located without the local service area of such primary
    transmitter.
      Pursuant to the foregoing formula, copyright payments as a
    percentage of gross receipts increase as the number of distant
    television signals carried by a cable system increases. Because
    many smaller cable systems carry a large number of distant signals,
    especially those located in areas where over-the-air television
    service is sparse, and because smaller cable systems may be less
    able to shoulder the burden of copyright payments than larger
    systems, the Committee decided to give special consideration to
    cable systems with semi-annual gross subscriber receipts of less
    than $160,000 ($320,000 annually). The royalty fee schedules for
    cable systems in this category are specified in subclauses (C) and
    (D).
      In lieu of the payments required in subclause (B), systems
    earning less than $80,000, semi-annually, are to pay a royalty fee
    of .5 of 1 percent of gross receipts. Gross receipts under this
    provision are computed, however, by subtracting from actual gross
    receipts collected during the payment period the amount by which
    $80,000 exceeds such actual gross receipts. Thus, if the actual
    gross receipts of the cable system for the period covered are
    $60,000, the fee is determined by subtracting $20,000 (the amount
    by which $80,000 exceeds actual gross receipts) from $60,000 and
    applying .5 of 1 percent to the $40,000 result. However, gross
    receipts in no case are to be reduced to less than $3,000.
      Under subclause (D), cable systems with semi-annual gross
    subscriber receipts of between $80,000 and $160,000 are to pay
    royalty fees of .5 of 1 percent of such actual gross receipts up to
    $80,000, and 1 percent of any actual gross receipts in excess of
    $80,000. The royalty fee payments under both subclauses (C) and (D)
    are to be determined without regard to the number of distant signal
    equivalents, if any, carried by the subject cable systems.
      Copyright Royalty Distribution. Section 111(d)(3) provides that
    the royalty fees paid by cable systems under the compulsory license
    shall be received by the Register of Copyrights and, after
    deducting the reasonable costs incurred by the Copyright Office,
    deposited in the Treasury of the United States. The fees are
    distributed subsequently, pursuant to the determination of the
    Copyright Royalty Commission under chapter 8 [Sec. 801 et seq. of
    this title].
      The copyright owners entitled to participate in the distribution
    of the royalty fees paid by cable systems under the compulsory
    license are specified in section 111(d)(4). Consistent with the
    Committee's view that copyright royalty fees should be made only
    for the retransmission of distant non-network programming, the
    claimants are limited to (1) copyright owners whose works were
    included in a secondary transmission made by a cable system of a
    distant non-network television program; (2) any copyright owner
    whose work is included in a secondary transmission identified in a
    special statement of account deposited under section 111(d)(2)(A);
    and (3) any copyright owner whose work was included in distant non-
    network programming consisting exclusively of aural signals. Thus,
    no royalty fees may be claimed or distributed to copyright owners
    for the retransmission of either "local" or "network" programs.
      The Committee recognizes that the bill does not include specific
    provisions to guide the Copyright Royalty Commission in determining
    the appropriate division among competing copyright owners of the
    royalty fees collected from cable systems under Section 111. The
    Committee concluded that it would not be appropriate to specify
    particular, limiting standards for distribution. Rather, the
    Committee believes that the Copyright Royalty Commission should
    consider all pertinent data and considerations presented by the
    claimants.
      Should disputes arise, however, between the different classes of
    copyright claimants, the Committee believes that the Copyright
    Royalty Commission should consider that with respect to the
    copyright owners of "live" programs identified by the special
    statement of account deposited under Section 111(d)(2)(A), a
    special payment is provided in Section 111(f).
      Section 111(d)(5) sets forth the procedure for the distribution
    of the royalty fees paid by cable systems. During the month of July
    of each year, every person claiming to be entitled to compulsory
    license fees must file a claim with the Copyright Royalty
    Commission, in accordance with such provisions as the Commission
    shall establish. In particular, the Commission may establish the
    relevant period covered by such claims after giving adequate time
    for copyright owners to review and consider the statements of
    account filed by cable systems. Notwithstanding any provisions of
    the antitrust laws, the claimants may agree among themselves as to
    the division and distribution of such fees. After the first day of
    August of each year, the Copyright Royalty Commission shall
    determine whether a controversy exists concerning the distribution
    of royalty fees. If no controversy exists, the Commission, after
    deducting its reasonable administrative costs, shall distribute the
    fees to the copyright owners entitled or their agents. If the
    Commission finds the existence of a controversy, it shall, pursuant
    to the provisions of chapter 8 [Sec. 801 et seq. of this title],
    conduct a proceeding to determine the distribution of royalty fees.
      Off-Shore Taping by Cable Systems. Section 111(e) establishes the
    conditions and limitation upon which certain cable systems located
    outside the continental United States, and specified in subsection
    (f), may make tapes of copyrighted programs and retransmit the
    taped programs to their subscribers upon payment of the compulsory
    license fee. These conditions and limitations include compliance
    with detailed transmission, record keeping, and other requirements.
    Their purpose is to control carefully the use of any tapes made
    pursuant to the limited recording and retransmission authority
    established in subsection (f), and to insure that the limited
    objective of assimilating offshore cable systems to systems within
    the United States for purposes of the compulsory license is not
    exceeded. Any secondary transmission by a cable system entitled to
    the benefits of the taping authorization that does not comply with
    the requirements of section 111(e) is an act of infringement and is
    fully subject to all the remedies provided in the legislation for
    such actions.
      Definitions. Section 111(f) contains a series of definitions.
    These definitions are found in subsection (f) rather than in
    section 101 because of their particular application to secondary
    transmissions by cable systems.
      Primary and Secondary Transmissions. The definitions of "primary
    transmission" and "secondary transmission" have been discussed
    above. The definition of "secondary transmission" also contains a
    provision permitting the nonsimultaneous retransmission of a
    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." Under a proviso, however, a cable system in
    Hawaii may make a nonsimultaneous retransmission of a primary
    transmission if the carriage of the television broadcast signal
    comprising such further transmission is permissible under the
    rules, regulations or authorizations of the FCC.
      The effect of this definition is to permit certain cable systems
    in offshore areas, but not including cable systems in the offshore
    area of Puerto Rico and to a limited extent only in Hawaii, to tape
    programs and retransmit them to subscribers under the compulsory
    license. Puerto Rico was excluded based upon a communication the
    Committee received from the Governor of Puerto Rico stating that
    the particular television broadcasting problems which the
    definition seeks to solve for cable systems in other noncontiguous
    areas do not exist in Puerto Rico. He therefore requested that
    Puerto Rico be excluded from the scope of the definition. All cable
    systems covered by the definition are subject to the conditions and
    limitations for nonsimultaneous transmissions established in
    section 111(e).
      Cable System. The definition of a "cable system" establishes that
    it is a facility that in whole or in part receives signals of one
    or more television broadcast stations licensed by the FCC and makes
    secondary transmissions of such signals to subscribing members of
    the public who pay for such service. A closed circuit wire system
    that only originates programs and does not carry television
    broadcast signals would not come within the definition. Further,
    the definition provides that, in determining the applicable royalty
    fee and system classification under subsection (d)(2)(B), (C), or
    (D) cable systems in contiguous communities under common ownership
    or control or operating from one headend are considered as one
    system.
      Local Service Area of a Primary Transmitter. The definition of
    "local service area of a primary transmitter" establishes the
    difference between "local" and "distant" signals and therefore the
    line between signals which are subject to payment under the
    compulsory license and those that are not. It provides that the
    local service area of a television broadcast station is the area in
    which the station is entitled to insist upon its signal being
    retransmitted by a cable system pursuant to FCC rules and
    regulations. Under FCC rules and regulations this so-called "must
    carry" area is defined based on the market size and position of
    cable systems in 47 C.F.R. Secs. 76.57, 76.59, 76.61 and 76.63. The
    definition is limited, however, to the FCC rules in effect on April
    15, 1976. The purpose of this limitation is to insure that any
    subsequent rule amendments by the FCC that either increase or
    decrease the size of the local service area for its purposes do not
    change the definition for copyright purposes. The Committee
    believes that any such change for copyright purposes, which would
    materially affect the royalty fee payments provided in the
    legislation, should only be made by an amendment to the statute.
      The "local service area of a primary transmitter" of a Canadian
    or Mexican television station is defined as the area in which such
    station would be entitled to insist upon its signals being
    retransmitted if it were a television broadcast station subject to
    FCC rules and regulations. Since the FCC does not permit a
    television station licensed in a foreign country to assert a claim
    to carriage by a U.S. cable system, the local service area of such
    foreign station is considered to be the same area as if it were a
    U.S. station.
      The local service area for a radio broadcast station is defined
    to mean "the primary service area of such station pursuant to the
    rules and regulations of the Federal Communications Commission."
    The term "primary service area" is defined precisely by the FCC
    with regard to AM stations in Section 73.11(a) of the FCC's rules.
    In the case of FM stations, "primary service area" is regarded by
    the FCC as the area included within the field strength contours
    specified in Section 73.311 of its rules.
      Distant Signal Equivalent. The definition of a "distant signal
    equivalent" is central to the computation of the royalty fees
    payable under the compulsory license. It is the value assigned to
    the secondary transmission of any non-network 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 (1) to each
    distant independent station and a value of one-quarter ( 1/4 ) to
    each distant network station and distant noncommercial educational
    station carried by a cable system, pursuant to the rules and
    regulations of the FCC. Thus, a cable system carrying two distant
    independent stations, two distant network stations and one distant
    noncommercial educational station would have a total of 2.75
    distant signal equivalents.
      The values assigned to independent, network and noncommercial
    educational stations are subject, however, to certain exceptions
    and limitations. Two of these relate to the mandatory and
    discretionary program deletion and substitution rules of the FCC.
    Where the FCC rules require a cable system to omit certain programs
    (e.g., the syndicated program exclusivity rules) and also permit
    the substitution of another program in place of the omitted
    program, no additional value is assigned for the substituted or
    additional program. Further, where the FCC rules on the date of
    enactment of this legislation permit a cable system, at its
    discretion, to make such deletions or substitutions or to carry
    additional programs not transmitted by primary transmitters within
    whose local service area the cable system is located, no additional
    value is assigned for the substituted or additional programs.
    However, the latter discretionary exception is subject to a
    condition that if the substituted or additional program is a "live"
    program (e.g., a sports event), then an additional value is
    assigned to the carriage of the distant signal computed as a
    fraction of one distant signal equivalent. The fraction is
    determined by assigning to the numerator the number of days in the
    year on which the "live" substitution occurs, and by assigning to
    the denominator the number of days in the year. Further, the
    discretionary exception is limited to those FCC rules in effect on
    the date of enactment of this legislation [Oct. 19, 1976]. If
    subsequent FCC rule amendments or individual authorizations enlarge
    the discretionary ability of cable systems to delete and substitute
    programs, such deletions and substitutions would be counted at the
    full value assigned the particular type of station provided above.
      Two further exceptions pertain to the late-night or specialty
    programming rules of the FCC or to a station carried on a part-time
    basis where full-time carriage is not possible because the cable
    system lacks the activated channel capacity to retransmit on a full-
    time basis all signals which it is authorized to carry. In this
    event, the values for independent, network and noncommercial,
    educational stations set forth above, as the case may be, are
    determined by multiplying each by a fraction which is equal to the
    ratio of the broadcast hours of such station carried by the cable
    system to the total broadcast hours of the station.
      Network Station. A "network station" is defined as a television
    broadcast station that is owned or operated by, or affiliated with,
    one or more of the U.S. television networks providing nationwide
    transmissions and that transmits a substantial part of the
    programming supplied by such networks for a substantial part of
    that station's typical broadcast day. To qualify as a network
    station, all the conditions of the definition must be met. Thus,
    the retransmission of a Canadian station affiliated with a Canadian
    network would not qualify under the definition. Further, a station
    affiliated with a regional network would not qualify, since a
    regional network would not provide nationwide transmissions.
    However, a station affiliated with a network providing nationwide
    transmissions that also occasionally carries regional programs
    would qualify as a "network station," if the station transmits a
    substantial part of the programming supplied by the network for a
    substantial part of the station's typical broadcast day.
      Independent Station. An "independent station" is defined as a
    commercial television broadcast station other than a network
    station. Any commercial station that does not fall within the
    definition of "network station" is classified as an "independent
    station."
      Noncommercial Educational Station. A "noncommercial educational
    station" is defined as a television station that is a noncommercial
    educational broadcast station within the meaning of section 397 of
    title 47 [47 U.S.C. 397].
-REFTEXT-
                            REFERENCES IN TEXT                        
      The date of enactment of this Act, referred to in the fifth
    undesignated par. of subsec. (f), defining "distant signal
    equivalent", is Oct. 19, 1976.
-MISC2-
                                AMENDMENTS                            
      2006 - Subsec. (d)(2). Pub. L. 109-303, Sec. 4(a)(1), substituted
    "upon authorization by the Copyright Royalty Judges." for "in the
    event no controversy over distribution exists, or by the Copyright
    Royalty Judges. in the event a controversy over such distribution
    exists."
      Subsec. (d)(4)(B). Pub. L. 109-303, Sec. 4(a)(2)(A), substituted
    second sentence for former second sentence which read as follows:
    "If the Copyright Royalty Judges determine 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." and "find" for "finds" in last sentence.
      Subsec. (d)(4)(C). Pub. L. 109-303, Sec. 4(a)(2)(B), added
    subpar. (C) and struck out former subpar. (C) which read as
    follows: "During the pendency of any proceeding under this
    subsection, the Copyright Royalty Judges 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."
      2004 - Subsec. (a)(4). Pub. L. 108-447 struck out "for private
    home viewing" after "satellite carrier".
      Subsec. (d)(1)(A). Pub. L. 108-447 struck out "for private home
    viewing" after "secondary transmissions".
      Subsec. (d)(2). Pub. L. 108-419, Sec. 5(a)(1), substituted "the
    Copyright Royalty Judges." for "a copyright arbitration royalty
    panel".
      Subsec. (d)(4)(A). Pub. L. 108-419, Sec. 5(a)(2)(A), substituted
    "Copyright Royalty Judges" for "Librarian of Congress" in two
    places.
      Subsec. (d)(4)(B). Pub. L. 108-419, Sec. 5(a)(2)(B), substituted,
    in first sentence, "Copyright Royalty Judges shall" for "Librarian
    of Congress shall, upon the recommendation of the Register of
    Copyrights,", in second sentence, "Copyright Royalty Judges
    determine" for "Librarian determines", and, in third sentence,
    "Copyright Royalty Judges" for "Librarian" in two places and
    "conduct a proceeding" for "convene a copyright arbitration royalty
    panel".
      Subsec. (d)(4)(C). Pub. L. 108-419, Sec. 5(a)(2)(C), substituted
    "Copyright Royalty Judges" for "Librarian of Congress".
      1999 - Subsecs. (a), (b). Pub. L. 106-113, Sec. 1000(a)(9) [title
    I, Sec. 1011(b)(1)(A), (B)], substituted "performance or display of
    a work embodied in a primary transmission" for "primary
    transmission embodying a performance or display of a work" in
    introductory provisions.
      Subsec. (c)(1). Pub. L. 106-113, Sec. 1000(a)(9) [title I, Sec.
    1011(a)(2), (b)(1)(C)(i)], inserted "a performance or display of a
    work embodied in" after "by a cable system of", struck out "and
    embodying a performance or display of a work" after "governmental
    authority of Canada or Mexico", and substituted "statutory" for
    "compulsory".
      Subsec. (c)(3), (4). Pub. L. 106-113, Sec. 1000(a)(9) [title I,
    Sec. 1011(b)(1)(C)(ii)], substituted "a performance or display of a
    work embodied in a primary transmission" for "a primary
    transmission" and struck out "and embodying a performance or
    display of a work" after "governmental authority of Canada or
    Mexico".
      Subsec. (d). Pub. L. 106-113, Sec. 1000(a)(9) [title I, Sec.
    1011(a)(2)], which directed substitution of "statutory" for
    "compulsory", was executed by substituting "Statutory" for
    "Compulsory" in heading to reflect probable intent of Congress.
      Subsec. (d)(1). Pub. L. 106-113, Sec. 1000(a)(9) [title I, Sec.
    1011(a)(2)], substituted "statutory" for "compulsory" in
    introductory provisions.
      Subsec. (d)(1)(B)(i), (3)(C). Pub. L. 106-113, Sec. 1000(a)(9)
    [title I, Sec. 1011(a)(1)], substituted "programming" for
    "programing".
      Subsec. (d)(4)(A). Pub. L. 106-113, Sec. 1000(a)(9) [title I,
    Sec. 1011(a)(2)], substituted "statutory" for "compulsory" in two
    places.
      Subsec. (f). Pub. L. 106-113, Sec. 1000(a)(9) [title I, Sec.
    1011(a)(1)], substituted "programming" for "programing" wherever
    appearing.
      1995 - Subsec. (c)(1). Pub. L. 104-39 inserted "and section
    114(d)" after "of this subsection".
      1994 - Subsec. (f). Pub. L. 103-369, Sec. 3(b), in fourth
    undesignated par. defining local service area of a primary
    transmitter, inserted "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," after "April 15, 1976,".
      Pub. L. 103-369, Sec. 3(a), inserted "microwave," after "wires,
    cables," in third undesignated par., defining cable system.
      1993 - Subsec. (d)(1). Pub. L. 103-198, Sec. 6(a)(1), struck out
    ", after consultation with the Copyright Royalty Tribunal (if and
    when the Tribunal has been constituted)," after "Register shall" in
    introductory provisions.
      Subsec. (d)(1)(A). Pub. L. 103-198, Sec. 6(a)(2), struck out ",
    after consultation with the Copyright Royalty Tribunal (if and when
    the Tribunal has been constituted)," after "Register of Copyrights
    may".
      Subsec. (d)(2). Pub. L. 103-198, Sec. 6(a)(3), substituted "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." for "All funds held by the Secretary of the Treasury shall
    be invested in interest-bearing United States securities for later
    distribution with interest by the Copyright Royalty Tribunal as
    provided by this title. The Register shall submit to the Copyright
    Royalty Tribunal, on a semiannual basis, a compilation of all
    statements of account covering the relevant six-month period
    provided by clause (1) of this subsection."
      Subsec. (d)(4)(A). Pub. L. 103-198, Sec. 6(a)(4), substituted
    "Librarian of Congress" for "Copyright Royalty Tribunal" before
    "claim with the" and for "Tribunal" before "requirements that the".
      Subsec. (d)(4)(B). Pub. L. 103-198, Sec. 6(a)(5), amended subpar.
    (B) generally. Prior to amendment, subpar. (B) read as follows:
    "After the first day of August of each year, the Copyright Royalty
    Tribunal shall determine whether there exists a controversy
    concerning the distribution of royalty fees. If the Tribunal
    determines that no such controversy exists, it shall, after
    deducting its reasonable administrative costs under this section,
    distribute such fees to the copyright owners entitled, or to their
    designated agents. If the Tribunal finds the existence of a
    controversy, it shall, pursuant to chapter 8 of this title, conduct
    a proceeding to determine the distribution of royalty fees."
      Subsec. (d)(4)(C). Pub. L. 103-198, Sec. 6(a)(6), substituted
    "Librarian of Congress" for "Copyright Royalty Tribunal".
      1990 - Subsec. (c)(2)(B). Pub. L. 101-318, Sec. 3(a)(1), struck
    out "recorded the notice specified by subsection (d) and" after
    "where the cable system has not".
      Subsec. (d)(2). Pub. L. 101-318, Sec. 3(a)(2)(A), substituted
    "clause (1)" for "paragraph (1)".
      Subsec. (d)(3). Pub. L. 101-318, Sec. 3(a)(2)(B), substituted
    "clause (4)" for "clause (5)" in introductory provisions.
      Subsec. (d)(3)(B). Pub. L. 101-318, Sec. 3(a)(2)(C), substituted
    "clause (1)(A)" for "clause (2)(A)".
      1988 - Subsec. (a)(4), (5). Pub. L. 100-667, Sec. 202(1)(A),
    added par. (4) and redesignated former par. (4) as (5).
      Subsec. (d)(1)(A). Pub. L. 100-667, Sec. 202(1)(B), inserted
    provision that determination of total number of subscribers and
    gross amounts paid to cable system for basic service of providing
    secondary transmissions of primary broadcast transmitters not
    include subscribers and amounts collected from subscribers
    receiving secondary transmissions for private home viewing under
    section 119.
      1986 - Subsec. (d). Pub. L. 99-397, Sec. 2(a)(1), (4), (5),
    substituted "paragraph (1)" for "clause (2)" in par. (3), struck
    out par. (1) which related to recordation of notice with Copyright
    Office by cable systems in order for secondary transmissions to be
    subject to compulsory licensing, and redesignated pars. (2) to (5)
    as (1) to (4), respectively.
      Pub. L. 99-397, Sec. 2(a)(2), (3), which directed the amendment
    of subsec. (d) by substituting "paragraph (4)" for "clause (5)" in
    pars. (2) and (2)(B) could not be executed because pars. (2) and
    (2)(B) did not contain references to "clause (5)". See 1990
    Amendment note above.
      Subsec. (f). Pub. L. 99-397, Sec. 2(b), substituted "subsection
    (d)(1)" for "subsection (d)(2)" in third undesignated par.,
    defining a cable system.
      Pub. L. 99-397, Sec. 1, inserted provision in fourth undesignated
    par., defining "local service area of a primary transmitter", to
    cover that term in relation to low power television stations.
                     EFFECTIVE DATE OF 2006 AMENDMENT                 
      Pub. L. 109-303, Sec. 6, Oct. 6, 2006, 120 Stat. 1483, provided
    that:
      "(a) In General. - Except as provided under subsection (b), this
    Act [see Short Title of 2006 Amendment note set out under section
    101 of this title] and the amendments made by this Act shall be
    effective as if included in the Copyright Royalty and Distribution
    Reform Act of 2004 [Pub. L. 108-419].
      "(b) Partial Distribution of Royalty Fees. - Section 5 [amending
    section 801 of this title] shall take effect on the date of
    enactment of this Act [Oct. 6, 2006]."
                     EFFECTIVE DATE OF 2004 AMENDMENT                 
      Amendment by Pub. L. 108-419 effective 6 months after Nov. 30,
    2004, subject to transition provisions, see section 6 of Pub. L.
    108-419, set out as an Effective Date; Transition Provisions note
    under section 801 of this title.
                     EFFECTIVE DATE OF 1995 AMENDMENT                 
      Amendment by Pub. L. 104-39 effective 3 months after Nov. 1,
    1995, see section 6 of Pub. L. 104-39, set out as a note under
    section 101 of this title.
                     EFFECTIVE DATE OF 1994 AMENDMENT                 
      Amendment by section 3(b) of Pub. L. 103-369 effective July 1,
    1994, see section 6(d) of Pub. L. 103-369, set out as an Effective
    and Termination Dates of 1994 Amendment note under section 119 of
    this title.
                     EFFECTIVE DATE OF 1993 AMENDMENT                 
      Pub. L. 103-198, Sec. 7, Dec. 17, 1993, 107 Stat. 2313, provided
    that:
      "(a) In General. - This Act [see Short Title of 1993 Amendment
    note set out under section 101 of this title] and the amendments
    made by this Act shall take effect on the date of the enactment of
    this Act [Dec. 17, 1993].
      "(b) Effectiveness of Existing Rates and Distributions. - All
    royalty rates and all determinations with respect to the
    proportionate division of compulsory license fees among copyright
    claimants, whether made by the Copyright Royalty Tribunal, or by
    voluntary agreement, before the effective date set forth in
    subsection (a) shall remain in effect until modified by voluntary
    agreement or pursuant to the amendments made by this Act.
      "(c) Transfer of Appropriations. - All unexpended balances of
    appropriations made to the Copyright Royalty Tribunal, as of the
    effective date of this Act, are transferred on such effective date
    to the Copyright Office for use by the Copyright Office for the
    purposes for which such appropriations were made."
                     EFFECTIVE DATE OF 1990 AMENDMENT                 
      Section 3(e)(1) of Pub. L. 101-318 provided that: "The amendments
    made by subsections (a) and (b) [amending this section and section
    801 of this title] shall be effective as of August 27, 1986."
                     EFFECTIVE DATE OF 1988 AMENDMENT                 
      Amendment by Pub. L. 100-667 effective Jan. 1, 1989, see section
    206 of Pub. L. 100-667, set out as an Effective Date note under
    section 119 of this title.
-TRANS-
           TERMINATION OF TRUST TERRITORY OF THE PACIFIC ISLANDS       
      For termination of Trust Territory of the Pacific Islands, see
    note set out preceding section 1681 of Title 48, Territories and
    Insular Possessions.
-End-
-CITE-
    17 USC Sec. 112                                             01/03/2007
-EXPCITE-
    TITLE 17 - COPYRIGHTS
    CHAPTER 1 - SUBJECT MATTER AND SCOPE OF COPYRIGHT
-HEAD-
    Sec. 112. Limitations on exclusive rights: Ephemeral recordings
-STATUTE-
      (a)(1) Notwithstanding the provisions of section 106, and except
    in the case of a motion picture or other audiovisual work, it is
    not an infringement of copyright for a transmitting organization
    entitled to transmit to the public a performance or display of a
    work, under a license, including a statutory license under section
    114(f), or transfer of the copyright or under the limitations on
    exclusive rights in sound recordings specified by section 114(a),
    or for a transmitting organization that is a broadcast radio or
    television station licensed as such by the Federal Communications
    Commission and that makes a broadcast transmission of a performance
    of a sound recording in a digital format on a nonsubscription
    basis, to make no more than one copy or phonorecord of a particular
    transmission program embodying the performance or display, if - 
        (A) the copy or phonorecord is retained and used solely by the
      transmitting organization that made it, and no further copies or
      phonorecords are reproduced from it; and
        (B) the copy or phonorecord is used solely for the transmitting
      organization's own transmissions within its local service area,
      or for purposes of archival preservation or security; and
        (C) unless preserved exclusively for archival purposes, the
      copy or phonorecord is destroyed within six months from the date
      the transmission program was first transmitted to the public.
      (2) In a case in which a transmitting organization entitled to
    make a copy or phonorecord under paragraph (1) in connection with
    the transmission to the public of a performance or display of a
    work is prevented from making such copy or phonorecord by reason of
    the application by the copyright owner of technical measures that
    prevent the reproduction of the work, the copyright owner shall
    make available to the transmitting organization the necessary means
    for permitting the making of such copy or phonorecord as permitted
    under that paragraph, if it is technologically feasible and
    economically reasonable for the copyright owner to do so. If the
    copyright owner fails to do so in a timely manner in light of the
    transmitting organization's reasonable business requirements, the
    transmitting organization shall not be liable for a violation of
    section 1201(a)(1) of this title for engaging in such activities as
    are necessary to make such copies or phonorecords as permitted
    under paragraph (1) of this subsection.
      (b) Notwithstanding the provisions of section 106, it is not an
    infringement of copyright for a governmental body or other
    nonprofit organization entitled to transmit a performance or
    display of a work, under section 110(2) or under the limitations on
    exclusive rights in sound recordings specified by section 114(a),
    to make no more than thirty copies or phonorecords of a particular
    transmission program embodying the performance or display, if - 
        (1) no further copies or phonorecords are reproduced from the
      copies or phonorecords made under this clause; and
        (2) except for one copy or phonorecord that may be preserved
      exclusively for archival purposes, the copies or phonorecords are
      destroyed within seven years from the date the transmission
      program was first transmitted to the public.
      (c) Notwithstanding the provisions of section 106, it is not an
    infringement of copyright for a governmental body or other
    nonprofit organization to make for distribution no more than one
    copy or phonorecord, for each transmitting organization specified
    in clause (2) of this subsection, of a particular transmission
    program embodying a performance of a nondramatic musical work of a
    religious nature, or of a sound recording of such a musical work,
    if - 
        (1) there is no direct or indirect charge for making or
      distributing any such copies or phonorecords; and
        (2) none of such copies or phonorecords is used for any
      performance other than a single transmission to the public by a
      transmitting organization entitled to transmit to the public a
      performance of the work under a license or transfer of the
      copyright; and
        (3) except for one copy or phonorecord that may be preserved
      exclusively for archival purposes, the copies or phonorecords are
      all destroyed within one year from the date the transmission
      program was first transmitted to the public.
      (d) Notwithstanding the provisions of section 106, it is not an
    infringement of copyright for a governmental body or other
    nonprofit organization entitled to transmit a performance of a work
    under section 110(8) to make no more than ten copies or
    phonorecords embodying the performance, or to permit the use of any
    such copy or phonorecord by any governmental body or nonprofit
    organization entitled to transmit a performance of a work under
    section 110(8), if - 
        (1) any such copy or phonorecord is retained and used solely by
      the organization that made it, or by a governmental body or
      nonprofit organization entitled to transmit a performance of a
      work under section 110(8), and no further copies or phonorecords
      are reproduced from it; and
        (2) any such copy or phonorecord is used solely for
      transmissions authorized under section 110(8), or for purposes of
      archival preservation or security; and
        (3) the governmental body or nonprofit organization permitting
      any use of any such copy or phonorecord by any governmental body
      or nonprofit organization under this subsection does not make any
      charge for such use.
      (e) Statutory License. - (1) A transmitting organization entitled
    to transmit to the public a performance of a sound recording under
    the limitation on exclusive rights specified by section
    114(d)(1)(C)(iv) or under a statutory license in accordance with
    section 114(f) is entitled to a statutory license, under the
    conditions specified by this subsection, to make no more than 1
    phonorecord of the sound recording (unless the terms and conditions
    of the statutory license allow for more), if the following
    conditions are satisfied:
        (A) The phonorecord is retained and used solely by the
      transmitting organization that made it, and no further
      phonorecords are reproduced from it.
        (B) The phonorecord is used solely for the transmitting
      organization's own transmissions originating in the United States
      under a statutory license in accordance with section 114(f) or
      the limitation on exclusive rights specified by section
      114(d)(1)(C)(iv).
        (C) Unless preserved exclusively for purposes of archival
      preservation, the phonorecord is destroyed within 6 months from
      the date the sound recording was first transmitted to the public
      using the phonorecord.
        (D) Phonorecords of the sound recording have been distributed
      to the public under the authority of the copyright owner or the
      copyright owner authorizes the transmitting entity to transmit
      the sound recording, and the transmitting entity makes the
      phonorecord under this subsection from a phonorecord lawfully
      made and acquired under the authority of the copyright owner.
      (2) Notwithstanding any provision of the antitrust laws, any
    copyright owners of sound recordings and any transmitting
    organizations entitled to a statutory license under this subsection
    may negotiate and agree upon royalty rates and license terms and
    conditions for making phonorecords of such sound recordings under
    this section and the proportionate division of fees paid among
    copyright owners, and may designate common agents to negotiate,
    agree to, pay, or receive such royalty payments.
      (3) Proceedings under chapter 8 shall determine reasonable rates
    and terms of royalty payments for the activities specified by
    paragraph (1) during the 5-year period beginning on January 1 of
    the second year following the year in which the proceedings are to
    be commenced, or such other period as the parties may agree. Such
    rates shall include a minimum fee for each type of service offered
    by transmitting organizations. Any copyright owners of sound
    recordings or any transmitting organizations entitled to a
    statutory license under this subsection may submit to the Copyright
    Royalty Judges licenses covering such activities with respect to
    such sound recordings. The parties to each proceeding shall bear
    their own costs.
      (4) The schedule of reasonable rates and terms determined by the
    Copyright Royalty Judges shall, subject to paragraph (5), be
    binding on all copyright owners of sound recordings and
    transmitting organizations entitled to a statutory license under
    this subsection during the 5-year period specified in paragraph
    (3), or such other period as the parties may agree. Such rates
    shall include a minimum fee for each type of service offered by
    transmitting organizations. The Copyright Royalty Judges shall
    establish rates that most clearly represent the fees that would
    have been negotiated in the marketplace between a willing buyer and
    a willing seller. In determining such rates and terms, the
    Copyright Royalty Judges shall base their decision on economic,
    competitive, and programming information presented by the parties,
    including - 
        (A) whether use of the service may substitute for or may
      promote the sales of phonorecords or otherwise interferes with or
      enhances the copyright owner's traditional streams of revenue;
      and
        (B) the relative roles of the copyright owner and the
      transmitting organization in the copyrighted work and the service
      made available to the public with respect to relative creative
      contribution, technological contribution, capital investment,
      cost, and risk.
    In establishing such rates and terms, the Copyright Royalty Judges
    may consider the rates and terms under voluntary license agreements
    described in paragraphs (2) and (3). The Copyright Royalty Judges
    shall also establish requirements by which copyright owners may
    receive reasonable notice of the use of their sound recordings
    under this section, and under which records of such use shall be
    kept and made available by transmitting organizations entitled to
    obtain a statutory license under this subsection.
      (5) License agreements voluntarily negotiated at any time between
    1 or more copyright owners of sound recordings and 1 or more
    transmitting organizations entitled to obtain a statutory license
    under this subsection shall be given effect in lieu of any decision
    by the Librarian of Congress or determination by the Copyright
    Royalty Judges.
      (6)(A) Any person who wishes to make a phonorecord of a sound
    recording under a statutory license in accordance with this
    subsection may do so without infringing the exclusive right of the
    copyright owner of the sound recording under section 106(1) - 
        (i) by complying with such notice requirements as the Copyright
      Royalty Judges shall prescribe by regulation and by paying
      royalty fees in accordance with this subsection; or
        (ii) if such royalty fees have not been set, by agreeing to pay
      such royalty fees as shall be determined in accordance with this
      subsection.
      (B) Any royalty payments in arrears shall be made on or before
    the 20th day of the month next succeeding the month in which the
    royalty fees are set.
      (7) If a transmitting organization entitled to make a phonorecord
    under this subsection is prevented from making such phonorecord by
    reason of the application by the copyright owner of technical
    measures that prevent the reproduction of the sound recording, the
    copyright owner shall make available to the transmitting
    organization the necessary means for permitting the making of such
    phonorecord as permitted under this subsection, if it is
    technologically feasible and economically reasonable for the
    copyright owner to do so. If the copyright owner fails to do so in
    a timely manner in light of the transmitting organization's
    reasonable business requirements, the transmitting organization
    shall not be liable for a violation of section 1201(a)(1) of this
    title for engaging in such activities as are necessary to make such
    phonorecords as permitted under this subsection.
      (8) Nothing in this subsection annuls, limits, impairs, or
    otherwise affects in any way the existence or value of any of the
    exclusive rights of the copyright owners in a sound recording,
    except as otherwise provided in this subsection, or in a musical
    work, including the exclusive rights to reproduce and distribute a
    sound recording or musical work, including by means of a digital
    phonorecord delivery, under sections 106(1), 106(3), and 115, and
    the right to perform publicly a sound recording or musical work,
    including by means of a digital audio transmission, under sections
    106(4) and 106(6).
      (f)(1) Notwithstanding the provisions of section 106, and without
    limiting the application of subsection (b), it is not an
    infringement of copyright for a governmental body or other
    nonprofit educational institution entitled under section 110(2) to
    transmit a performance or display to make copies or phonorecords of
    a work that is in digital form and, solely to the extent permitted
    in paragraph (2), of a work that is in analog form, embodying the
    performance or display to be used for making transmissions
    authorized under section 110(2), if - 
        (A) such copies or phonorecords are retained and used solely by
      the body or institution that made them, and no further copies or
      phonorecords are reproduced from them, except as authorized under
      section 110(2); and
        (B) such copies or phonorecords are used solely for
      transmissions authorized under section 110(2).
      (2) This subsection does not authorize the conversion of print or
    other analog versions of works into digital formats, except that
    such conversion is permitted hereunder, only with respect to the
    amount of such works authorized to be performed or displayed under
    section 110(2), if - 
        (A) no digital version of the work is available to the
      institution; or
        (B) the digital version of the work that is available to the
      institution is subject to technological protection measures that
      prevent its use for section 110(2).
      (g) The transmission program embodied in a copy or phonorecord
    made under this section is not subject to protection as a
    derivative work under this title except with the express consent of
    the owners of copyright in the preexisting works employed in the
    program.
-SOURCE-
    (Pub. L. 94-553, title I, Sec. 101, Oct. 19, 1976, 90 Stat. 2558;
    Pub. L. 105-304, title IV, Secs. 402, 405(b), Oct. 28, 1998, 112
    Stat. 2888, 2899; Pub. L. 106-44, Sec. 1(b), Aug. 5, 1999, 113
    Stat. 221; Pub. L. 107-273, div. C, title III, Sec. 13301(c)(1),
    Nov. 2, 2002, 116 Stat. 1912; Pub. L. 108-419, Sec. 5(b), Nov. 30,
    2004, 118 Stat. 2361.)
-MISC1-
                       HISTORICAL AND REVISION NOTES                   
                         HOUSE REPORT NO. 94-1476                     
      Section 112 of the bill concerns itself with a special problem
    that is not dealt with in the present statutes but is the subject
    of provisions in a number of foreign statutes and in the revisions
    of the Berne Convention since 1948. This is the problem of what are
    commonly called "ephemeral recordings": copies or phonorecords of a
    work made for purposes of later transmission by a broadcasting
    organization legally entitled to transmit the work. In other words,
    where a broadcaster has the privilege of performing or displaying a
    work either because he is licensed or because the performance or
    display is exempted under the statute, the question is whether he
    should be given the additional privilege of recording the
    performance or display to facilitate its transmission. The need for
    a limited exemption in these cases because of the practical
    exigencies of broadcasting has been generally recognized, but the
    scope of the exemption has been a controversial issue.
      Recordings for Licensed Transmissions. Under subsection (a) of
    section 112, an organization that has acquired the right to
    transmit any work (other than a motion picture or other audiovisual
    work), or that is free to transmit a sound recording under section
    114, may make a single copy or phonorecord of a particular program
    embodying the work, if the copy or phonorecord is used solely for
    the organization's own transmissions within its own area; after 6
    months it must be destroyed or preserved solely for archival
    purposes.
      Organizations Covered. - The ephemeral recording privilege is
    given by subsection (a) to "a transmitting organization entitled to
    transmit to the public a performance or display of a work."
    Assuming that the transmission meets the other conditions of the
    provision, it makes no difference what type of public transmission
    the organization is making: commercial radio and television
    broadcasts, public radio and television broadcasts not exempted by
    section 110(2), pay-TV, closed circuit, background music, and so
    forth. However, to come within the scope of subsection (a), the
    organization must have the right to make the transmission "under a
    license or transfer of the copyright or under the limitations on
    exclusive rights in sound recordings specified by section 114(a)."
    Thus, except in the case of copyrighted sound recordings (which
    have no exclusive performing rights under the bill), the
    organization must be a transferee or licensee (including compulsory
    licensee) of performing rights in the work in order to make an
    ephemeral recording of it.
      Some concern has been expressed by authors and publishers lest
    the term "organization" be construed to include a number of
    affiliated broadcasters who could exchange the recording without
    restrictions. The term is intended to cover a broadcasting network,
    or a local broadcaster or individual transmitter; but, under
    clauses (1) and (2) of the subsection, the ephemeral recording must
    be "retained and used solely by the transmitting organization that
    made it," and must be used solely for that organization's own
    transmissions within its own area. Thus, an ephemeral recording
    made by one transmitter, whether it be a network or local
    broadcaster, could not be made available for use by another
    transmitter. Likewise, this subsection does not apply to those
    nonsimultaneous transmissions by cable systems not located within a
    boundary of the forty-eight contiguous States that are granted a
    compulsory license under section 111.
      Scope of the Privilege. - Subsection (a) permits the transmitting
    organization to make "no more than one copy or phonorecord of a
    particular transmission program embodying the performance or
    display." A "transmission program" is defined in section 101 as a
    body of material produced for the sole purpose of transmission as a
    unit. Thus, under section 112(a), a transmitter could make only one
    copy or phonorecord of a particular "transmission program"
    containing a copyrighted work, but would not be limited as to the
    number of times the work itself could be duplicated as part of
    other "transmission programs."
      Three specific limitations on the scope of the ephemeral
    recording privilege are set out in subsection (a), and unless all
    are met the making of an "ephemeral recording" becomes fully
    actionable as an infringement. The first requires that the copy or
    phonorecord be "retained and used solely by the transmitting
    organization that made it," and that "no further copies or
    phonorecords are reproduced from it." This means that a
    transmitting organization would have no privilege of exchanging
    ephemeral recordings with other transmitters or of allowing them to
    duplicate their own ephemeral recordings from the copy or
    phonorecord it has made. There is nothing in the provision to
    prevent a transmitting organization from having an ephemeral
    recording made by means of facilities other than its own, although
    it would not be permissible for a person or organization other than
    a transmitting organization to make a recording on its own
    initiative for possible sale or lease to a broadcaster. The
    ephemeral recording privilege would extend to copies or
    phonorecords made in advance for later broadcast, as well as
    recordings of a program that are made while it is being transmitted
    and are intended for deferred transmission or preservation.
      Clause (2) of section 112(a) provides that, to be exempt from
    copyright, the copy or phonorecord must be "used solely for the
    transmitting organization's own transmissions within its local
    service area, or for purposes of archival preservation or
    security". The term "local service area" is defined in section
    111(f).
      Clause (3) of section 112(a) provides that, unless preserved
    exclusively for archival purposes, the copy or phonorecord of a
    transmission program must be destroyed within six months from the
    date the transmission program was first transmitted to the public.
      Recordings for Instructional Transmissions. Section 112(b)
    represents a response to the arguments of instructional
    broadcasters and other educational groups for special recording
    privileges, although it does not go as far as these groups
    requested. In general, it permits a nonprofit organization that is
    free to transmit a performance or display of a work, under section
    110(2) or under the limitations on exclusive rights in sound
    recordings specified by section 114(a), to make not more than
    thirty copies or phonorecords and to use the ephemeral recordings
    for transmitting purposes for not more than seven years after the
    initial transmission.
      Organizations Covered. - The privilege of making ephemeral
    recordings under section 112(b) extends to a "governmental body or
    other nonprofit organization entitled to transmit a performance or
    display of a work under section 110(2) or under the limitations on
    exclusive rights in sound recordings specified by section 114(a)."
    Aside from phonorecords of copyrighted sound recordings, the
    ephemeral recordings made by an instructional broadcaster under
    subsection (b) must embody a performance or display that meets all
    of the qualifications for exemption under section 110(2). Copies or
    phonorecords made for educational broadcasts of a general cultural
    nature, or for transmission as part of an information storage and
    retrieval system, would not be exempted from copyright protection
    under section 112(b).
      Motion Pictures and Other Audiovisual Works. - Since the
    performance exemption provided by section 110(2) applies only to
    nondramatic literary and musical works, there was no need to
    exclude motion pictures and other audiovisual works explicitly from
    the scope of section 112(b). Another point stressed by the
    producers of educational films in this connection, however, was
    that ephemeral recordings made by instructional broadcasters are in
    fact audiovisual works that often compete for exactly the same
    market. They argued that it is unfair to allow instructional
    broadcasters to reproduce multiple copies of films and tapes, and
    to exchange them with other broadcasters, without paying any
    copyright royalties, thereby directly injuring the market of
    producers of audiovisual works who now pay substantial fees to
    authors for the same uses. These arguments are persuasive and
    justify the placing of reasonable limits on the recording
    privilege.
      Scope of the Privilege. - Under subsection (b) an instructional
    broadcaster may make "no more than thirty copies or phonorecords of
    a particular transmission program embodying the performance or
    display." No further copies or phonorecords can be reproduced from
    those made under section 112(b), either by the nonprofit
    organization that made them or by anyone else.
      On the other hand, if the nonprofit organization does nothing
    directly or indirectly to authorize, induce, or encourage others to
    duplicate additional copies or phonorecords of an ephemeral
    recording in excess of the limit of thirty, it would not be held
    responsible as participating in the infringement in such a case,
    and the unauthorized copies would not be counted against the
    organization's total of thirty.
      Unlike ephemeral recordings made under subsection (a), exchanges
    of recordings among instructional broadcasters are permitted. An
    organization that has made copies or phonorecords under subsection
    (b) may use one of them for purposes of its own transmissions that
    are exempted by section 110(2), and it may also transfer the other
    29 copies to other instructional broadcasters for use in the same
    way.
      As in the case of ephemeral recordings made under section 112(a),
    a copy or phonorecord made for instructional broadcasting could be
    reused in any number of transmissions within the time limits
    specified in the provision. Because of the special problems of
    instructional broadcasters resulting from the scheduling of courses
    and the need to prerecord well in advance of transmission, the
    period of use has been extended to seven years from the date the
    transmission program was first transmitted to the public.
      Religious Broadcasts. - Section 112(c) provides that it is not an
    infringement of copyright for certain nonprofit organizations to
    make no more than one copy for each transmitting organization of a
    broadcast program embodying a performance of a nondramatic musical
    work of a religious nature or of a sound recording of such a
    musical work. In order for this exception to be applicable there
    must be no charge for the distribution of the copies, none of the
    copies may be used for any performance other than a single
    transmission by an organization possessing a license to transmit a
    copyrighted work, and, other than for one copy that may be
    preserved for archival purposes, the remaining copies must be
    destroyed within one year from the date the program was first
    transmitted to the public.
      Despite objections by music copyright owners, the Committee found
    this exemption to be justified by the special circumstances under
    which many religious programs are broadcast. These programs are
    produced on tape or disk for distribution by mail of one copy only
    to each broadcast station carrying the program. None of the
    programs are prepared for profit, and the program producer either
    pays the station to carry the program or furnishes it free of
    charge. The stations have performing licenses, so the copyright
    owners receive compensation. Following the performance, the tape is
    returned or the disk destroyed. It seems likely that, as has been
    alleged, to require a second payment for the mechanical
    reproduction under these circumstances would simply have the effect
    of driving some of the copyrighted music off the air.
      Ephemeral Recordings for Transmissions to Handicapped Audiences.
    As a counterpart to its amendment of section 110(8), the Committee
    adopted a new provision, subsection (d) of section 112, to provide
    an ephemeral recording exemption in the case of transmissions to
    the blind and deaf. New subsection would permit the making of one
    recording of a performance exempted under section 110(8), and its
    retention for an unlimited period. It would not permit the making
    of further reproductions or their exchange with other
    organizations.
      Copyright Status of Ephemeral Recordings. A program reproduced in
    an ephemeral recording made under section 112 in many cases will
    constitute a motion picture, a sound recording, or some other kind
    of derivative work, and will thus be potentially copyrightable
    under section 103. In section 112(e) it is provided that ephemeral
    recordings are not to be copyrightable as derivative works except
    with the consent of the owners of the copyrighted material employed
    in them.
                                AMENDMENTS                            
      2004 - Subsec. (e)(3). Pub. L. 108-419, Sec. 5(b)(1), substituted
    first sentence for former first sentence which read: "No later than
    30 days after the date of the enactment of the Digital Millennium
    Copyright Act, the Librarian of Congress shall cause notice to be
    published in the Federal Register of the initiation of voluntary
    negotiation proceedings for the purpose of determining reasonable
    terms and rates of royalty payments for the activities specified by
    paragraph (1) of this subsection during the period beginning on the
    date of the enactment of such Act and ending on December 31, 2000,
    or such other date as the parties may agree.", substituted
    "Copyright Royalty Judges licenses" for "Librarian of Congress
    licenses" in third sentence, and struck out "negotiation" before
    "proceeding" in last sentence.
      Subsec. (e)(4). Pub. L. 108-419, Sec. 5(b)(2), substituted first
    sentence for former first sentence which read: "In the absence of
    license agreements negotiated under paragraph (2), during the 60-
    day period commencing 6 months after publication of the notice
    specified in paragraph (3), and upon the filing of a petition in
    accordance with section 803(a)(1), the Librarian of Congress shall,
    pursuant to chapter 8, convene a copyright arbitration royalty
    panel to determine and publish in the Federal Register a schedule
    of reasonable rates and terms which, subject to paragraph (5),
    shall be binding on all copyright owners of sound recordings and
    transmitting organizations entitled to a statutory license under
    this subsection during the period beginning on the date of the
    enactment of the Digital Millennium Copyright Act and ending on
    December 31, 2000, or such other date as the parties may agree.",
    and substituted "Copyright Royalty Judges" for "copyright
    arbitration royalty panel" in third and fourth sentences and in
    concluding provisions, "their decision" for "its decision",
    "described" for "negotiated as provided", and "Copyright Royalty
    Judges shall also establish" for "Librarian of Congress shall also
    establish".
      Subsec. (e)(5). Pub. L. 108-419, Sec. 5(b)(3), substituted
    "decision by the Librarian of Congress or determination by the
    Copyright Royalty Judges" for "determination by a copyright
    arbitration royalty panel or decision by the Librarian of
    Congress".
      Subsec. (e)(6). Pub. L. 108-419, Sec. 5(b)(4), redesignated par.
    (7) as (6) and struck out former par. (6) which related to
    publication of notice of the initiation of voluntary negotiation
    proceedings as specified in par. (3).
      Subsec. (e)(6)(A)(i). Pub. L. 108-419, Sec. 5(b)(5), substituted
    "Copyright Royalty Judges" for "Librarian of Congress".
      Subsec. (e)(7) to (9). Pub. L. 108-419, Sec. 5(b)(4),
    redesignated pars. (8) and (9) as (7) and (8), respectively. Former
    par. (7) redesignated (6).
      2002 - Subsecs. (f), (g). Pub. L. 107-273 added subsec. (f) and
    redesignated former subsec. (f) as (g).
      1999 - Subsec. (e)(2). Pub. L. 106-44, Sec. 1(b)(1), redesignated
    par. (3) as (2).
      Subsec. (e)(3). Pub. L. 106-44, Sec. 1(b)(1), (2), redesignated
    par. (4) as (3) and substituted "(1)" for "(2)" in first sentence.
    Former par. (3) redesignated (2).
      Subsec. (e)(4). Pub. L. 106-44, Sec. 1(b)(1), (3), redesignated
    par. (5) as (4), substituted "(2)" for "(3)", "(3)" for "(4)", and
    "(5)" for "(6)" in first sentence, and substituted "(2) and (3)"
    for "(3) and (4)" in penultimate sentence of concluding provisions.
    Former par. (4) redesignated (3).
      Subsec. (e)(5). Pub. L. 106-44, Sec. 1(b)(1), redesignated par.
    (6) as (5). Former par. (5) redesignated (4).
      Subsec. (e)(6). Pub. L. 106-44, Sec. 1(b)(1), (4), redesignated
    par. (7) as (6), substituted "(3)" for "(4)" wherever appearing,
    and substituted "(4)" for "(5)" in two places. Former par. (6)
    redesignated (5).
      Subsec. (e)(7) to (10). Pub. L. 106-44, Sec. 1(b)(1),
    redesignated pars. (8) to (10) as (7) to (9), respectively. Former
    par. (7) redesignated (6).
      1998 - Subsec. (a). Pub. L. 105-304, Sec. 402, designated
    existing provisions as par. (1), in introductory provisions
    inserted ", including a statutory license under section 114(f),"
    after "under a license" and "or for a transmitting organization
    that is a broadcast radio or television station licensed as such by
    the Federal Communications Commission and that makes a broadcast
    transmission of a performance of a sound recording in a digital
    format on a nonsubscription basis," after "114(a),", redesignated
    former pars. (1) to (3) as subpars. (A) to (C), respectively, and
    added par. (2).
      Subsecs. (e), (f). Pub. L. 105-304, Sec. 405(b), added subsec.
    (e) and redesignated former subsec. (e) as (f).
                     EFFECTIVE DATE OF 2004 AMENDMENT                 
      Amendment by Pub. L. 108-419 effective 6 months after Nov. 30,
    2004, subject to transition provisions, see section 6 of Pub. L.
    108-419, set out as an Effective Date; Transition Provisions note
    under section 801 of this title.
                      CONSTRUCTION OF 1998 AMENDMENT                  
      Pub. L. 105-304, title IV, Sec. 405(c), Oct. 28, 1998, 112 Stat.
    2902, provided that: "Nothing in this section [amending this
    section and sections 114 and 801 to 803 of this title and enacting
    provisions set out as notes under section 114 of this title] or the
    amendments made by this section shall affect the scope of section
    112(a) of title 17, United States Code, or the entitlement of any
    person to an exemption thereunder."
-End-
-CITE-
    17 USC Sec. 113                                             01/03/2007
-EXPCITE-
    TITLE 17 - COPYRIGHTS
    CHAPTER 1 - SUBJECT MATTER AND SCOPE OF COPYRIGHT
-HEAD-
    Sec. 113. Scope of exclusive rights in pictorial, graphic, and
      sculptural works
-STATUTE-
      (a) Subject to the provisions of subsections (b) and (c) of this
    section, the exclusive right to reproduce a copyrighted pictorial,
    graphic, or sculptural work in copies under section 106 includes
    the right to reproduce the work in or on any kind of article,
    whether useful or otherwise.
      (b) This title does not afford, to the owner of copyright in a
    work that portrays a useful article as such, any greater or lesser
    rights with respect to the making, distribution, or display of the
    useful article so portrayed than those afforded to such works under
    the law, whether title 17 or the common law or statutes of a State,
    in effect on December 31, 1977, as held applicable and construed by
    a court in an action brought under this title.
      (c) In the case of a work lawfully reproduced in useful articles
    that have been offered for sale or other distribution to the
    public, copyright does not include any right to prevent the making,
    distribution, or display of pictures or photographs of such
    articles in connection with advertisements or commentaries related
    to the distribution or display of such articles, or in connection
    with news reports.
      (d)(1) In a case in which - 
        (A) a work of visual art has been incorporated in or made part
      of a building in such a way that removing the work from the
      building will cause the destruction, distortion, mutilation, or
      other modification of the work as described in section
      106A(a)(3), and
        (B) the author consented to the installation of the work in the
      building either before the effective date set forth in section
      610(a) of the Visual Artists Rights Act of 1990, or in a written
      instrument executed on or after such effective date that is
      signed by the owner of the building and the author and that
      specifies that installation of the work may subject the work to
      destruction, distortion, mutilation, or other modification, by
      reason of its removal,
    then the rights conferred by paragraphs (2) and (3) of section
    106A(a) shall not apply.
      (2) If the owner of a building wishes to remove a work of visual
    art which is a part of such building and which can be removed from
    the building without the destruction, distortion, mutilation, or
    other modification of the work as described in section 106A(a)(3),
    the author's rights under paragraphs (2) and (3) of section 106A(a)
    shall apply unless - 
        (A) the owner has made a diligent, good faith attempt without
      success to notify the author of the owner's intended action
      affecting the work of visual art, or
        (B) the owner did provide such notice in writing and the person
      so notified failed, within 90 days after receiving such notice,
      either to remove the work or to pay for its removal.
    For purposes of subparagraph (A), an owner shall be presumed to
    have made a diligent, good faith attempt to send notice if the
    owner sent such notice by registered mail to the author at the most
    recent address of the author that was recorded with the Register of
    Copyrights pursuant to paragraph (3). If the work is removed at the
    expense of the author, title to that copy of the work shall be
    deemed to be in the author.
      (3) The Register of Copyrights shall establish a system of
    records whereby any author of a work of visual art that has been
    incorporated in or made part of a building, may record his or her
    identity and address with the Copyright Office. The Register shall
    also establish procedures under which any such author may update
    the information so recorded, and procedures under which owners of
    buildings may record with the Copyright Office evidence of their
    efforts to comply with this subsection.
-SOURCE-
    (Pub. L. 94-553, title I, Sec. 101, Oct. 19, 1976, 90 Stat. 2560;
    Pub. L. 101-650, title VI, Sec. 604, Dec. 1, 1990, 104 Stat. 5130.)
-MISC1-
                       HISTORICAL AND REVISION NOTES                   
                         HOUSE REPORT NO. 94-1476                     
      Section 113 deals with the extent of copyright protection in
    "works of applied art." The section takes as its starting point the
    Supreme Court's decision in Mazer v. Stein, 347 U.S. 201 (1954) [74
    S.Ct. 460, 98 L.Ed. 630, rehearing denied 74 S.Ct. 637, 347 U.S.
    949, 98 L.Ed. 1096], and the first sentence of subsection (a)
    restates the basic principle established by that decision. The rule
    of Mazer, as affirmed by the bill, is that copyright in a
    pictorial, graphic, or sculptural work will not be affected if the
    work is employed as the design of a useful article, and will afford
    protection to the copyright owner against the unauthorized
    reproduction of his work in useful as well as nonuseful articles.
    The terms "pictorial, graphic, and sculptural works" and "useful
    article" are defined in section 101, and these definitions are
    discussed above in connection with section 102.
      The broad language of section 106(1) and of subsection (a) of
    section 113 raises questions as to the extent of copyright
    protection for a pictorial, graphic, or sculptural work that
    portrays, depicts, or represents an image of a useful article in
    such a way that the utilitarian nature of the article can be seen.
    To take the example usually cited, would copyright in a drawing or
    model of an automobile give the artist the exclusive right to make
    automobiles of the same design?
      The 1961 Report of the Register of Copyrights stated, on the
    basis of judicial precedent, that "copyright in a pictorial,
    graphic, or sculptural work, portraying a useful article as such,
    does not extend to the manufacture of the useful article itself,"
    and recommended specifically that "the distinctions drawn in this
    area by existing court decisions" not be altered by the statute.
    The Register's Supplementary Report, at page 48, cited a number of
    these decisions, and explained the insuperable difficulty of
    finding "any statutory formulation that would express the
    distinction satisfactorily." Section 113(b) reflects the Register's
    conclusion that "the real need is to make clear that there is no
    intention to change the present law with respect to the scope of
    protection in a work portraying a useful article as such."
      Section 113(c) provides that it would not be an infringement of
    copyright, where a copyright work has been lawfully published as
    the design of useful articles, to make, distribute or display
    pictures of the articles in advertising, in feature stories about
    the articles, or in the news reports.
      In conformity with its deletion from the bill of Title II,
    relating to the protection of ornamental designs of useful
    articles, the Committee has deleted subsections (b), (c), and (d)
    of section 113 of S. 22 as adopted by the Senate, since they are no
    longer relevant.
-REFTEXT-
                            REFERENCES IN TEXT                        
      Section 610(a) of the Visual Artists Rights Act of 1990 [Pub. L.
    101-650], referred to in subsec. (d)(1)(B), is set out as an
    Effective Date note under section 106A of this title.
-MISC2-
                                AMENDMENTS                            
      1990 - Subsec. (d). Pub. L. 101-650 added subsec. (d).
                     EFFECTIVE DATE OF 1990 AMENDMENT                 
      Amendment by Pub. L. 101-650 effective 6 months after Dec. 1,
    1990, see section 610 of Pub. L. 101-650, set out as an Effective
    Date note under section 106A of this title.
-End-
-CITE-
    17 USC Sec. 114                                             01/03/2007
-EXPCITE-
    TITLE 17 - COPYRIGHTS
    CHAPTER 1 - SUBJECT MATTER AND SCOPE OF COPYRIGHT
-HEAD-
    Sec. 114. Scope of exclusive rights in sound recordings
-STATUTE-
      (a) The exclusive rights of the owner of copyright in a sound
    recording are limited to the rights specified by clauses (1), (2),
    (3) and (6) of section 106, and do not include any right of
    performance under section 106(4).
      (b) The exclusive right of the owner of copyright in a sound
    recording under clause (1) of section 106 is limited to the right
    to duplicate the sound recording in the form of phonorecords or
    copies that directly or indirectly recapture the actual sounds
    fixed in the recording. The exclusive right of the owner of
    copyright in a sound recording under clause (2) of section 106 is
    limited to the right to prepare a derivative work in which the
    actual sounds fixed in the sound recording are rearranged, remixed,
    or otherwise altered in sequence or quality. The exclusive rights
    of the owner of copyright in a sound recording under clauses (1)
    and (2) of section 106 do not extend to the making or duplication
    of another sound recording that consists entirely of an independent
    fixation of other sounds, even though such sounds imitate or
    simulate those in the copyrighted sound recording. The exclusive
    rights of the owner of copyright in a sound recording under clauses
    (1), (2), and (3) of section 106 do not apply to sound recordings
    included in educational television and radio programs (as defined
    in section 397 of title 47) distributed or transmitted by or
    through public broadcasting entities (as defined by section
    118(g)): (!1) Provided, That copies or phonorecords of said
    programs are not commercially distributed by or through public
    broadcasting entities to the general public.
      (c) This section does not limit or impair the exclusive right to
    perform publicly, by means of a phonorecord, any of the works
    specified by section 106(4).
      (d) Limitations on Exclusive Right. - Notwithstanding the
    provisions of section 106(6) - 
        (1) Exempt transmissions and retransmissions. - The performance
      of a sound recording publicly by means of a digital audio
      transmission, other than as a part of an interactive service, is
      not an infringement of section 106(6) if the performance is part
      of - 
          (A) a nonsubscription broadcast transmission;
          (B) a retransmission of a nonsubscription broadcast
        transmission: Provided, That, in the case of a retransmission
        of a radio station's broadcast transmission - 
            (i) the radio station's broadcast transmission is not
          willfully or repeatedly retransmitted more than a radius of
          150 miles from the site of the radio broadcast transmitter,
          however - 
              (I) the 150 mile limitation under this clause shall not
            apply when a nonsubscription broadcast transmission by a
            radio station licensed by the Federal Communications
            Commission is retransmitted on a nonsubscription basis by a
            terrestrial broadcast station, terrestrial translator, or
            terrestrial repeater licensed by the Federal Communications
            Commission; and
              (II) in the case of a subscription retransmission of a
            nonsubscription broadcast retransmission covered by
            subclause (I), the 150 mile radius shall be measured from
            the transmitter site of such broadcast retransmitter;
            (ii) the retransmission is of radio station broadcast
          transmissions that are - 
              (I) obtained by the retransmitter over the air;
              (II) not electronically processed by the retransmitter to
            deliver separate and discrete signals; and
              (III) retransmitted only within the local communities
            served by the retransmitter;
            (iii) the radio station's broadcast transmission was being
          retransmitted to cable systems (as defined in section 111(f))
          by a satellite carrier on January 1, 1995, and that
          retransmission was being retransmitted by cable systems as a
          separate and discrete signal, and the satellite carrier
          obtains the radio station's broadcast transmission in an
          analog format: Provided, That the broadcast transmission
          being retransmitted may embody the programming of no more
          than one radio station; or
            (iv) the radio station's broadcast transmission is made by
          a noncommercial educational broadcast station funded on or
          after January 1, 1995, under section 396(k) of the
          Communications Act of 1934 (47 U.S.C. 396(k)), consists
          solely of noncommercial educational and cultural radio
          programs, and the retransmission, whether or not
          simultaneous, is a nonsubscription terrestrial broadcast
          retransmission; or
          (C) a transmission that comes within any of the following
        categories - 
            (i) a prior or simultaneous transmission incidental to an
          exempt transmission, such as a feed received by and then
          retransmitted by an exempt transmitter: Provided, That such
          incidental transmissions do not include any subscription
          transmission directly for reception by members of the public;
            (ii) a transmission within a business establishment,
          confined to its premises or the immediately surrounding
          vicinity;
            (iii) a retransmission by any retransmitter, including a
          multichannel video programming distributor as defined in
          section 602(12) (!1) of the Communications Act of 1934 (47
          U.S.C. 522(12)), of a transmission by a transmitter licensed
          to publicly perform the sound recording as a part of that
          transmission, if the retransmission is simultaneous with the
          licensed transmission and authorized by the transmitter; or
            (iv) a transmission to a business establishment for use in
          the ordinary course of its business: Provided, That the
          business recipient does not retransmit the transmission
          outside of its premises or the immediately surrounding
          vicinity, and that the transmission does not exceed the sound
          recording performance complement. Nothing in this clause
          shall limit the scope of the exemption in clause (ii).
        (2) Statutory licensing of certain transmissions. - The
      performance of a sound recording publicly by means of a
      subscription digital audio transmission not exempt under
      paragraph (1), an eligible nonsubscription transmission, or a
      transmission not exempt under paragraph (1) that is made by a
      preexisting satellite digital audio radio service shall be
      subject to statutory licensing, in accordance with subsection (f)
      if - 
          (A)(i) the transmission is not part of an interactive
        service;
          (ii) except in the case of a transmission to a business
        establishment, the transmitting entity does not automatically
        and intentionally cause any device receiving the transmission
        to switch from one program channel to another; and
          (iii) except as provided in section 1002(e), the transmission
        of the sound recording is accompanied, if technically feasible,
        by the information encoded in that sound recording, if any, by
        or under the authority of the copyright owner of that sound
        recording, that identifies the title of the sound recording,
        the featured recording artist who performs on the sound
        recording, and related information, including information
        concerning the underlying musical work and its writer;
          (B) in the case of a subscription transmission not exempt
        under paragraph (1) that is made by a preexisting subscription
        service in the same transmission medium used by such service on
        July 31, 1998, or in the case of a transmission not exempt
        under paragraph (1) that is made by a preexisting satellite
        digital audio radio service - 
            (i) the transmission does not exceed the sound recording
          performance complement; and
            (ii) the transmitting entity does not cause to be published
          by means of an advance program schedule or prior announcement
          the titles of the specific sound recordings or phonorecords
          embodying such sound recordings to be transmitted; and
          (C) in the case of an eligible nonsubscription transmission
        or a subscription transmission not exempt under paragraph (1)
        that is made by a new subscription service or by a preexisting
        subscription service other than in the same transmission medium
        used by such service on July 31, 1998 - 
            (i) the transmission does not exceed the sound recording
          performance complement, except that this requirement shall
          not apply in the case of a retransmission of a broadcast
          transmission if the retransmission is made by a transmitting
          entity that does not have the right or ability to control the
          programming of the broadcast station making the broadcast
          transmission, unless - 
              (I) the broadcast station makes broadcast transmissions -
            
                (aa) in digital format that regularly exceed the sound
              recording performance complement; or
                (bb) in analog format, a substantial portion of which,
              on a weekly basis, exceed the sound recording performance
              complement; and
              (II) the sound recording copyright owner or its
            representative has notified the transmitting entity in
            writing that broadcast transmissions of the copyright
            owner's sound recordings exceed the sound recording
            performance complement as provided in this clause;
            (ii) the transmitting entity does not cause to be
          published, or induce or facilitate the publication, by means
          of an advance program schedule or prior announcement, the
          titles of the specific sound recordings to be transmitted,
          the phonorecords embodying such sound recordings, or, other
          than for illustrative purposes, the names of the featured
          recording artists, except that this clause does not
          disqualify a transmitting entity that makes a prior
          announcement that a particular artist will be featured within
          an unspecified future time period, and in the case of a
          retransmission of a broadcast transmission by a transmitting
          entity that does not have the right or ability to control the
          programming of the broadcast transmission, the requirement of
          this clause shall not apply to a prior oral announcement by
          the broadcast station, or to an advance program schedule
          published, induced, or facilitated by the broadcast station,
          if the transmitting entity does not have actual knowledge and
          has not received written notice from the copyright owner or
          its representative that the broadcast station publishes or
          induces or facilitates the publication of such advance
          program schedule, or if such advance program schedule is a
          schedule of classical music programming published by the
          broadcast station in the same manner as published by that
          broadcast station on or before September 30, 1998;
            (iii) the transmission - 
              (I) is not part of an archived program of less than 5
            hours duration;
              (II) is not part of an archived program of 5 hours or
            greater in duration that is made available for a period
            exceeding 2 weeks;
              (III) is not part of a continuous program which is of
            less than 3 hours duration; or
              (IV) is not part of an identifiable program in which
            performances of sound recordings are rendered in a
            predetermined order, other than an archived or continuous
            program, that is transmitted at - 
                (aa) more than 3 times in any 2-week period that have
              been publicly announced in advance, in the case of a
              program of less than 1 hour in duration, or
                (bb) more than 4 times in any 2-week period that have
              been publicly announced in advance, in the case of a
              program of 1 hour or more in duration,
            except that the requirement of this subclause shall not
            apply in the case of a retransmission of a broadcast
            transmission by a transmitting entity that does not have
            the right or ability to control the programming of the
            broadcast transmission, unless the transmitting entity is
            given notice in writing by the copyright owner of the sound
            recording that the broadcast station makes broadcast
            transmissions that regularly violate such requirement;
            (iv) the transmitting entity does not knowingly perform the
          sound recording, as part of a service that offers
          transmissions of visual images contemporaneously with
          transmissions of sound recordings, in a manner that is likely
          to cause confusion, to cause mistake, or to deceive, as to
          the affiliation, connection, or association of the copyright
          owner or featured recording artist with the transmitting
          entity or a particular product or service advertised by the
          transmitting entity, or as to the origin, sponsorship, or
          approval by the copyright owner or featured recording artist
          of the activities of the transmitting entity other than the
          performance of the sound recording itself;
            (v) the transmitting entity cooperates to prevent, to the
          extent feasible without imposing substantial costs or
          burdens, a transmission recipient or any other person or
          entity from automatically scanning the transmitting entity's
          transmissions alone or together with transmissions by other
          transmitting entities in order to select a particular sound
          recording to be transmitted to the transmission recipient,
          except that the requirement of this clause shall not apply to
          a satellite digital audio service that is in operation, or
          that is licensed by the Federal Communications Commission, on
          or before July 31, 1998;
            (vi) the transmitting entity takes no affirmative steps to
          cause or induce the making of a phonorecord by the
          transmission recipient, and if the technology used by the
          transmitting entity enables the transmitting entity to limit
          the making by the transmission recipient of phonorecords of
          the transmission directly in a digital format, the
          transmitting entity sets such technology to limit such making
          of phonorecords to the extent permitted by such technology;
            (vii) phonorecords of the sound recording have been
          distributed to the public under the authority of the
          copyright owner or the copyright owner authorizes the
          transmitting entity to transmit the sound recording, and the
          transmitting entity makes the transmission from a phonorecord
          lawfully made under the authority of the copyright owner,
          except that the requirement of this clause shall not apply to
          a retransmission of a broadcast transmission by a
          transmitting entity that does not have the right or ability
          to control the programming of the broadcast transmission,
          unless the transmitting entity is given notice in writing by
          the copyright owner of the sound recording that the broadcast
          station makes broadcast transmissions that regularly violate
          such requirement;
            (viii) the transmitting entity accommodates and does not
          interfere with the transmission of technical measures that
          are widely used by sound recording copyright owners to
          identify or protect copyrighted works, and that are
          technically feasible of being transmitted by the transmitting
          entity without imposing substantial costs on the transmitting
          entity or resulting in perceptible aural or visual
          degradation of the digital signal, except that the
          requirement of this clause shall not apply to a satellite
          digital audio service that is in operation, or that is
          licensed under the authority of the Federal Communications
          Commission, on or before July 31, 1998, to the extent that
          such service has designed, developed, or made commitments to
          procure equipment or technology that is not compatible with
          such technical measures before such technical measures are
          widely adopted by sound recording copyright owners; and
            (ix) the transmitting entity identifies in textual data the
          sound recording during, but not before, the time it is
          performed, including the title of the sound recording, the
          title of the phonorecord embodying such sound recording, if
          any, and the featured recording artist, in a manner to permit
          it to be displayed to the transmission recipient by the
          device or technology intended for receiving the service
          provided by the transmitting entity, except that the
          obligation in this clause shall not take effect until 1 year
          after the date of the enactment of the Digital Millennium
          Copyright Act and shall not apply in the case of a
          retransmission of a broadcast transmission by a transmitting
          entity that does not have the right or ability to control the
          programming of the broadcast transmission, or in the case in
          which devices or technology intended for receiving the
          service provided by the transmitting entity that have the
          capability to display such textual data are not common in the
          marketplace.
        (3) Licenses for transmissions by interactive services. - 
          (A) No interactive service shall be granted an exclusive
        license under section 106(6) for the performance of a sound
        recording publicly by means of digital audio transmission for a
        period in excess of 12 months, except that with respect to an
        exclusive license granted to an interactive service by a
        licensor that holds the copyright to 1,000 or fewer sound
        recordings, the period of such license shall not exceed 24
        months: Provided, however, That the grantee of such exclusive
        license shall be ineligible to receive another exclusive
        license for the performance of that sound recording for a
        period of 13 months from the expiration of the prior exclusive
        license.
          (B) The limitation set forth in subparagraph (A) of this
        paragraph shall not apply if - 
            (i) the licensor has granted and there remain in effect
          licenses under section 106(6) for the public performance of
          sound recordings by means of digital audio transmission by at
          least 5 different interactive services: Provided, however,
          That each such license must be for a minimum of 10 percent of
          the copyrighted sound recordings owned by the licensor that
          have been licensed to interactive services, but in no event
          less than 50 sound recordings; or
            (ii) the exclusive license is granted to perform publicly
          up to 45 seconds of a sound recording and the sole purpose of
          the performance is to promote the distribution or performance
          of that sound recording.
          (C) Notwithstanding the grant of an exclusive or nonexclusive
        license of the right of public performance under section
        106(6), an interactive service may not publicly perform a sound
        recording unless a license has been granted for the public
        performance of any copyrighted musical work contained in the
        sound recording: Provided, That such license to publicly
        perform the copyrighted musical work may be granted either by a
        performing rights society representing the copyright owner or
        by the copyright owner.
          (D) The performance of a sound recording by means of a
        retransmission of a digital audio transmission is not an
        infringement of section 106(6) if - 
            (i) the retransmission is of a transmission by an
          interactive service licensed to publicly perform the sound
          recording to a particular member of the public as part of
          that transmission; and
            (ii) the retransmission is simultaneous with the licensed
          transmission, authorized by the transmitter, and limited to
          that particular member of the public intended by the
          interactive service to be the recipient of the transmission.
          (E) For the purposes of this paragraph - 
            (i) a "licensor" shall include the licensing entity and any
          other entity under any material degree of common ownership,
          management, or control that owns copyrights in sound
          recordings; and
            (ii) a "performing rights society" is an association or
          corporation that licenses the public performance of
          nondramatic musical works on behalf of the copyright owner,
          such as the American Society of Composers, Authors and
          Publishers, Broadcast Music, Inc., and SESAC, Inc.
        (4) Rights not otherwise limited. - 
          (A) Except as expressly provided in this section, this
        section does not limit or impair the exclusive right to perform
        a sound recording publicly by means of a digital audio
        transmission under section 106(6).
          (B) Nothing in this section annuls or limits in any way - 
            (i) the exclusive right to publicly perform a musical work,
          including by means of a digital audio transmission, under
          section 106(4);
            (ii) the exclusive rights in a sound recording or the
          musical work embodied therein under sections 106(1), 106(2)
          and 106(3); or
            (iii) any other rights under any other clause of section
          106, or remedies available under this title, as such rights
          or remedies exist either before or after the date of
          enactment of the Digital Performance Right in Sound
          Recordings Act of 1995.
          (C) Any limitations in this section on the exclusive right
        under section 106(6) apply only to the exclusive right under
        section 106(6) and not to any other exclusive rights under
        section 106. Nothing in this section shall be construed to
        annul, limit, impair or otherwise affect in any way the ability
        of the owner of a copyright in a sound recording to exercise
        the rights under sections 106(1), 106(2) and 106(3), or to
        obtain the remedies available under this title pursuant to such
        rights, as such rights and remedies exist either before or
        after the date of enactment of the Digital Performance Right in
        Sound Recordings Act of 1995.
      (e) Authority for Negotiations. - 
        (1) Notwithstanding any provision of the antitrust laws, in
      negotiating statutory licenses in accordance with subsection (f),
      any copyright owners of sound recordings and any entities
      performing sound recordings affected by this section may
      negotiate and agree upon the royalty rates and license terms and
      conditions for the performance of such sound recordings and the
      proportionate division of fees paid among copyright owners, and
      may designate common agents on a nonexclusive basis to negotiate,
      agree to, pay, or receive payments.
        (2) For licenses granted under section 106(6), other than
      statutory licenses, such as for performances by interactive
      services or performances that exceed the sound recording
      performance complement - 
          (A) copyright owners of sound recordings affected by this
        section may designate common agents to act on their behalf to
        grant licenses and receive and remit royalty payments:
        Provided, That each copyright owner shall establish the royalty
        rates and material license terms and conditions unilaterally,
        that is, not in agreement, combination, or concert with other
        copyright owners of sound recordings; and
          (B) entities performing sound recordings affected by this
        section may designate common agents to act on their behalf to
        obtain licenses and collect and pay royalty fees: Provided,
        That each entity performing sound recordings shall determine
        the royalty rates and material license terms and conditions
        unilaterally, that is, not in agreement, combination, or
        concert with other entities performing sound recordings.
      (f) Licenses for Certain Nonexempt Transmissions. - 
        (1)(A) Proceedings under chapter 8 shall determine reasonable
      rates and terms of royalty payments for subscription
      transmissions by preexisting subscription services and
      transmissions by preexisting satellite digital audio radio
      services specified by subsection (d)(2) during the 5-year period
      beginning on January 1 of the second year following the year in
      which the proceedings are to be commenced, except in the case of
      a different transitional period provided under section 6(b)(3) of
      the Copyright Royalty and Distribution Reform Act of 2004, or
      such other period as the parties may agree. Such terms and rates
      shall distinguish among the different types of digital audio
      transmission services then in operation. Any copyright owners of
      sound recordings, preexisting subscription services, or
      preexisting satellite digital audio radio services may submit to
      the Copyright Royalty Judges licenses covering such subscription
      transmissions with respect to such sound recordings. The parties
      to each proceeding shall bear their own costs.
        (B) The schedule of reasonable rates and terms determined by
      the Copyright Royalty Judges shall, subject to paragraph (3), be
      binding on all copyright owners of sound recordings and entities
      performing sound recordings affected by this paragraph during the
      5-year period specified in subparagraph (A), a transitional
      period provided under section 6(b)(3) of the Copyright Royalty
      and Distribution Reform Act of 2004, or such other period as the
      parties may agree. In establishing rates and terms for
      preexisting subscription services and preexisting satellite
      digital audio radio services, in addition to the objectives set
      forth in section 801(b)(1), the Copyright Royalty Judges may
      consider the rates and terms for comparable types of subscription
      digital audio transmission services and comparable circumstances
      under voluntary license agreements described in subparagraph (A).
        (C) The procedures under subparagraphs (A) and (B) also shall
      be initiated pursuant to a petition filed by any copyright owners
      of sound recordings, any preexisting subscription services, or
      any preexisting satellite digital audio radio services indicating
      that a new type of subscription digital audio transmission
      service on which sound recordings are performed is or is about to
      become operational, for the purpose of determining reasonable
      terms and rates of royalty payments with respect to such new type
      of transmission service for the period beginning with the
      inception of such new type of service and ending on the date on
      which the royalty rates and terms for subscription digital audio
      transmission services most recently determined under subparagraph
      (A) or (B) and chapter 8 expire, or such other period as the
      parties may agree.
        (2)(A) Proceedings under chapter 8 shall determine reasonable
      rates and terms of royalty payments for public performances of
      sound recordings by means of eligible nonsubscription
      transmission services and new subscription services specified by
      subsection (d)(2) during the 5-year period beginning on January 1
      of the second year following the year in which the proceedings
      are to be commenced, except in the case of a different
      transitional period provided under section 6(b)(3) of the
      Copyright Royalty and Distribution Reform Act of 2004, or such
      other period as the parties may agree. Such rates and terms shall
      distinguish among the different types of eligible nonsubscription
      transmission services and new subscription services then in
      operation and shall include a minimum fee for each such type of
      service. Any copyright owners of sound recordings or any entities
      performing sound recordings affected by this paragraph may submit
      to the Copyright Royalty Judges licenses covering such eligible
      nonsubscription transmissions and new subscription services with
      respect to such sound recordings. The parties to each proceeding
      shall bear their own costs.
        (B) The schedule of reasonable rates and terms determined by
      the Copyright Royalty Judges shall, subject to paragraph (3), be
      binding on all copyright owners of sound recordings and entities
      performing sound recordings affected by this paragraph during the
      5-year period specified in subparagraph (A), a transitional
      period provided under section 6(b)(3) of the Copyright Royalty
      and Distribution (!2) Act of 2004, or such other period as the
      parties may agree. Such rates and terms shall distinguish among
      the different types of eligible nonsubscription transmission
      services then in operation and shall include a minimum fee for
      each such type of service, such differences to be based on
      criteria including, but not limited to, the quantity and nature
      of the use of sound recordings and the degree to which use of the
      service may substitute for or may promote the purchase of
      phonorecords by consumers. In establishing rates and terms for
      transmissions by eligible nonsubscription services and new
      subscription services, the Copyright Royalty Judges shall
      establish rates and terms that most clearly represent the rates
      and terms that would have been negotiated in the marketplace
      between a willing buyer and a willing seller. In determining such
      rates and terms, the Copyright Royalty Judges shall base its (!3)
      decision on economic, competitive and programming information
      presented by the parties, including - 
          (i) whether use of the service may substitute for or may
        promote the sales of phonorecords or otherwise may interfere
        with or may enhance the sound recording copyright owner's other
        streams of revenue from its sound recordings; and
          (ii) the relative roles of the copyright owner and the
        transmitting entity in the copyrighted work and the service
        made available to the public with respect to relative creative
        contribution, technological contribution, capital investment,
        cost, and risk.
      In establishing such rates and terms, the Copyright Royalty
      Judges may consider the rates and terms for comparable types of
      digital audio transmission services and comparable circumstances
      under voluntary license agreements described in subparagraph (A).
        (C) The procedures under subparagraphs (A) and (B) shall also
      be initiated pursuant to a petition filed by any copyright owners
      of sound recordings or any eligible nonsubscription service or
      new subscription service indicating that a new type of eligible
      nonsubscription service or new subscription service on which
      sound recordings are performed is or is about to become
      operational, for the purpose of determining reasonable terms and
      rates of royalty payments with respect to such new type of
      service for the period beginning with the inception of such new
      type of service and ending on the date on which the royalty rates
      and terms for preexisting subscription digital audio transmission
      services or preexisting satellite digital radio audio services,
      as the case may be, most recently determined under subparagraph
      (A) or (B) and chapter 8 expire, or such other period as the
      parties may agree.
        (3) License agreements voluntarily negotiated at any time
      between 1 or more copyright owners of sound recordings and 1 or
      more entities performing sound recordings shall be given effect
      in lieu of any decision by the Librarian of Congress or
      determination by the Copyright Royalty Judges.
        (4)(A) The Copyright Royalty Judges shall also establish
      requirements by which copyright owners may receive reasonable
      notice of the use of their sound recordings under this section,
      and under which records of such use shall be kept and made
      available by entities performing sound recordings. The notice and
      recordkeeping rules in effect on the day before the effective
      date of the Copyright Royalty and Distribution Reform Act of 2004
      shall remain in effect unless and until new regulations are
      promulgated by the Copyright Royalty Judges. If new regulations
      are promulgated under this subparagraph, the Copyright Royalty
      Judges shall take into account the substance and effect of the
      rules in effect on the day before the effective date of the
      Copyright Royalty and Distribution Reform Act of 2004 and shall,
      to the extent practicable, avoid significant disruption of the
      functions of any designated agent authorized to collect and
      distribute royalty fees.
        (B) Any person who wishes to perform a sound recording publicly
      by means of a transmission eligible for statutory licensing under
      this subsection may do so without infringing the exclusive right
      of the copyright owner of the sound recording - 
          (i) by complying with such notice requirements as the
        Copyright Royalty Judges shall prescribe by regulation and by
        paying royalty fees in accordance with this subsection; or
          (ii) if such royalty fees have not been set, by agreeing to
        pay such royalty fees as shall be determined in accordance with
        this subsection.
        (C) Any royalty payments in arrears shall be made on or before
      the twentieth day of the month next succeeding the month in which
      the royalty fees are set.
        (5)(A) Notwithstanding section 112(e) and the other provisions
      of this subsection, the receiving agent may enter into agreements
      for the reproduction and performance of sound recordings under
      section 112(e) and this section by any 1 or more small commercial
      webcasters or noncommercial webcasters during the period
      beginning on October 28, 1998, and ending on December 31, 2004,
      that, once published in the Federal Register pursuant to
      subparagraph (B), shall be binding on all copyright owners of
      sound recordings and other persons entitled to payment under this
      section, in lieu of any determination by a copyright arbitration
      royalty panel or decision by the Librarian of Congress. Any such
      agreement for small commercial webcasters shall include
      provisions for payment of royalties on the basis of a percentage
      of revenue or expenses, or both, and include a minimum fee. Any
      such agreement may include other terms and conditions, including
      requirements by which copyright owners may receive notice of the
      use of their sound recordings and under which records of such use
      shall be kept and made available by small commercial webcasters
      or noncommercial webcasters. The receiving agent shall be under
      no obligation to negotiate any such agreement. The receiving
      agent shall have no obligation to any copyright owner of sound
      recordings or any other person entitled to payment under this
      section in negotiating any such agreement, and no liability to
      any copyright owner of sound recordings or any other person
      entitled to payment under this section for having entered into
      such agreement.
        (B) The Copyright Office shall cause to be published in the
      Federal Register any agreement entered into pursuant to
      subparagraph (A). Such publication shall include a statement
      containing the substance of subparagraph (C). Such agreements
      shall not be included in the Code of Federal Regulations.
      Thereafter, the terms of such agreement shall be available, as an
      option, to any small commercial webcaster or noncommercial
      webcaster meeting the eligibility conditions of such agreement.
        (C) Neither subparagraph (A) nor any provisions of any
      agreement entered into pursuant to subparagraph (A), including
      any rate structure, fees, terms, conditions, or notice and
      recordkeeping requirements set forth therein, shall be admissible
      as evidence or otherwise taken into account in any
      administrative, judicial, or other government proceeding
      involving the setting or adjustment of the royalties payable for
      the public performance or reproduction in ephemeral phonorecords
      or copies of sound recordings, the determination of terms or
      conditions related thereto, or the establishment of notice or
      recordkeeping requirements by the Librarian of Congress under
      paragraph (4) or section 112(e)(4). It is the intent of Congress
      that any royalty rates, rate structure, definitions, terms,
      conditions, or notice and recordkeeping requirements, included in
      such agreements shall be considered as a compromise motivated by
      the unique business, economic and political circumstances of
      small webcasters, copyright owners, and performers rather than as
      matters that would have been negotiated in the marketplace
      between a willing buyer and a willing seller, or otherwise meet
      the objectives set forth in section 801(b).
        (D) Nothing in the Small Webcaster Settlement Act of 2002 or
      any agreement entered into pursuant to subparagraph (A) shall be
      taken into account by the United States Court of Appeals for the
      District of Columbia Circuit in its review of the determination
      by the Librarian of Congress of July 8, 2002, of rates and terms
      for the digital performance of sound recordings and ephemeral
      recordings, pursuant to sections 112 and 114.
        (E) As used in this paragraph - 
          (i) the term "noncommercial webcaster" means a webcaster that
        - 
            (I) is exempt from taxation under section 501 of the
          Internal Revenue Code of 1986 (26 U.S.C. 501);
            (II) has applied in good faith to the Internal Revenue
          Service for exemption from taxation under section 501 of the
          Internal Revenue Code and has a commercially reasonable
          expectation that such exemption shall be granted; or
            (III) is operated by a State or possession or any
          governmental entity or subordinate thereof, or by the United
          States or District of Columbia, for exclusively public
          purposes;
          (ii) the term "receiving agent" shall have the meaning given
        that term in section 261.2 of title 37, Code of Federal
        Regulations, as published in the Federal Register on July 8,
        2002; and
          (iii) the term "webcaster" means a person or entity that has
        obtained a compulsory license under section 112 or 114 and the
        implementing regulations therefor to make eligible
        nonsubscription transmissions and ephemeral recordings.
        (F) The authority to make settlements pursuant to subparagraph
      (A) shall expire December 15, 2002, except with respect to
      noncommercial webcasters for whom the authority shall expire May
      31, 2003.
      (g) Proceeds From Licensing of Transmissions. - 
        (1) Except in the case of a transmission licensed under a
      statutory license in accordance with subsection (f) of this
      section - 
          (A) a featured recording artist who performs on a sound
        recording that has been licensed for a transmission shall be
        entitled to receive payments from the copyright owner of the
        sound recording in accordance with the terms of the artist's
        contract; and
          (B) a nonfeatured recording artist who performs on a sound
        recording that has been licensed for a transmission shall be
        entitled to receive payments from the copyright owner of the
        sound recording in accordance with the terms of the nonfeatured
        recording artist's applicable contract or other applicable
        agreement.
        (2) An agent designated to distribute receipts from the
      licensing of transmissions in accordance with subsection (f)
      shall distribute such receipts as follows:
          (A) 50 percent of the receipts shall be paid to the copyright
        owner of the exclusive right under section 106(6) of this title
        to publicly perform a sound recording by means of a digital
        audio transmission.
          (B) 2 1/2  percent of the receipts shall be deposited in an
        escrow account managed by an independent administrator jointly
        appointed by copyright owners of sound recordings and the
        American Federation of Musicians (or any successor entity) to
        be distributed to nonfeatured musicians (whether or not members
        of the American Federation of Musicians) who have performed on
        sound recordings.
          (C) 2 1/2  percent of the receipts shall be deposited in an
        escrow account managed by an independent administrator jointly
        appointed by copyright owners of sound recordings and the
        American Federation of Television and Radio Artists (or any
        successor entity) to be distributed to nonfeatured vocalists
        (whether or not members of the American Federation of
        Television and Radio Artists) who have performed on sound
        recordings.
          (D) 45 percent of the receipts shall be paid, on a per sound
        recording basis, to the recording artist or artists featured on
        such sound recording (or the persons conveying rights in the
        artists' performance in the sound recordings).
        (3) A nonprofit agent designated to distribute receipts from
      the licensing of transmissions in accordance with subsection (f)
      may deduct from any of its receipts, prior to the distribution of
      such receipts to any person or entity entitled thereto other than
      copyright owners and performers who have elected to receive
      royalties from another designated agent and have notified such
      nonprofit agent in writing of such election, the reasonable costs
      of such agent incurred after November 1, 1995, in - 
          (A) the administration of the collection, distribution, and
        calculation of the royalties;
          (B) the settlement of disputes relating to the collection and
        calculation of the royalties; and
          (C) the licensing and enforcement of rights with respect to
        the making of ephemeral recordings and performances subject to
        licensing under section 112 and this section, including those
        incurred in participating in negotiations or arbitration
        proceedings under section 112 and this section, except that all
        costs incurred relating to the section 112 ephemeral recordings
        right may only be deducted from the royalties received pursuant
        to section 112.
        (4) Notwithstanding paragraph (3), any designated agent
      designated to distribute receipts from the licensing of
      transmissions in accordance with subsection (f) may deduct from
      any of its receipts, prior to the distribution of such receipts,
      the reasonable costs identified in paragraph (3) of such agent
      incurred after November 1, 1995, with respect to such copyright
      owners and performers who have entered with such agent a
      contractual relationship that specifies that such costs may be
      deducted from such royalty receipts.
      (h) Licensing to Affiliates. - 
        (1) If the copyright owner of a sound recording licenses an
      affiliated entity the right to publicly perform a sound recording
      by means of a digital audio transmission under section 106(6),
      the copyright owner shall make the licensed sound recording
      available under section 106(6) on no less favorable terms and
      conditions to all bona fide entities that offer similar services,
      except that, if there are material differences in the scope of
      the requested license with respect to the type of service, the
      particular sound recordings licensed, the frequency of use, the
      number of subscribers served, or the duration, then the copyright
      owner may establish different terms and conditions for such other
      services.
        (2) The limitation set forth in paragraph (1) of this
      subsection shall not apply in the case where the copyright owner
      of a sound recording licenses - 
          (A) an interactive service; or
          (B) an entity to perform publicly up to 45 seconds of the
        sound recording and the sole purpose of the performance is to
        promote the distribution or performance of that sound
        recording.
      (i) No Effect on Royalties for Underlying Works. - License fees
    payable for the public performance of sound recordings under
    section 106(6) shall not be taken into account in any
    administrative, judicial, or other governmental proceeding to set
    or adjust the royalties payable to copyright owners of musical
    works for the public performance of their works. It is the intent
    of Congress that royalties payable to copyright owners of musical
    works for the public performance of their works shall not be
    diminished in any respect as a result of the rights granted by
    section 106(6).
      (j) Definitions. - As used in this section, the following terms
    have the following meanings:
        (1) An "affiliated entity" is an entity engaging in digital
      audio transmissions covered by section 106(6), other than an
      interactive service, in which the licensor has any direct or
      indirect partnership or any ownership interest amounting to 5
      percent or more of the outstanding voting or non-voting stock.
        (2) An "archived program" is a predetermined program that is
      available repeatedly on the demand of the transmission recipient
      and that is performed in the same order from the beginning,
      except that an archived program shall not include a recorded
      event or broadcast transmission that makes no more than an
      incidental use of sound recordings, as long as such recorded
      event or broadcast transmission does not contain an entire sound
      recording or feature a particular sound recording.
        (3) A "broadcast" transmission is a transmission made by a
      terrestrial broadcast station licensed as such by the Federal
      Communications Commission.
        (4) A "continuous program" is a predetermined program that is
      continuously performed in the same order and that is accessed at
      a point in the program that is beyond the control of the
      transmission recipient.
        (5) A "digital audio transmission" is a digital transmission as
      defined in section 101, that embodies the transmission of a sound
      recording. This term does not include the transmission of any
      audiovisual work.
        (6) An "eligible nonsubscription transmission" is a
      noninteractive nonsubscription digital audio transmission not
      exempt under subsection (d)(1) that is made as part of a service
      that provides audio programming consisting, in whole or in part,
      of performances of sound recordings, including retransmissions of
      broadcast transmissions, if the primary purpose of the service is
      to provide to the public such audio or other entertainment
      programming, and the primary purpose of the service is not to
      sell, advertise, or promote particular products or services other
      than sound recordings, live concerts, or other music-related
      events.
        (7) An "interactive service" is one that enables a member of
      the public to receive a transmission of a program specially
      created for the recipient, or on request, a transmission of a
      particular sound recording, whether or not as part of a program,
      which is selected by or on behalf of the recipient. The ability
      of individuals to request that particular sound recordings be
      performed for reception by the public at large, or in the case of
      a subscription service, by all subscribers of the service, does
      not make a service interactive, if the programming on each
      channel of the service does not substantially consist of sound
      recordings that are performed within 1 hour of the request or at
      a time designated by either the transmitting entity or the
      individual making such request. If an entity offers both
      interactive and noninteractive services (either concurrently or
      at different times), the noninteractive component shall not be
      treated as part of an interactive service.
        (8) A "new subscription service" is a service that performs
      sound recordings by means of noninteractive subscription digital
      audio transmissions and that is not a preexisting subscription
      service or a preexisting satellite digital audio radio service.
        (9) A "nonsubscription" transmission is any transmission that
      is not a subscription transmission.
        (10) A "preexisting satellite digital audio radio service" is a
      subscription satellite digital audio radio service provided
      pursuant to a satellite digital audio radio service license
      issued by the Federal Communications Commission on or before July
      31, 1998, and any renewal of such license to the extent of the
      scope of the original license, and may include a limited number
      of sample channels representative of the subscription service
      that are made available on a nonsubscription basis in order to
      promote the subscription service.
        (11) A "preexisting subscription service" is a service that
      performs sound recordings by means of noninteractive audio-only
      subscription digital audio transmissions, which was in existence
      and was making such transmissions to the public for a fee on or
      before July 31, 1998, and may include a limited number of sample
      channels representative of the subscription service that are made
      available on a nonsubscription basis in order to promote the
      subscription service.
        (12) A "retransmission" is a further transmission of an initial
      transmission, and includes any further retransmission of the same
      transmission. Except as provided in this section, a transmission
      qualifies as a "retransmission" only if it is simultaneous with
      the initial transmission. Nothing in this definition shall be
      construed to exempt a transmission that fails to satisfy a
      separate element required to qualify for an exemption under
      section 114(d)(1).
        (13) The "sound recording performance complement" is the
      transmission during any 3-hour period, on a particular channel
      used by a transmitting entity, of no more than - 
          (A) 3 different selections of sound recordings from any one
        phonorecord lawfully distributed for public performance or sale
        in the United States, if no more than 2 such selections are
        transmitted consecutively; or
          (B) 4 different selections of sound recordings - 
            (i) by the same featured recording artist; or
            (ii) from any set or compilation of phonorecords lawfully
          distributed together as a unit for public performance or sale
          in the United States,
        if no more than three such selections are transmitted
        consecutively:
      Provided, That the transmission of selections in excess of the
      numerical limits provided for in clauses (A) and (B) from
      multiple phonorecords shall nonetheless qualify as a sound
      recording performance complement if the programming of the
      multiple phonorecords was not willfully intended to avoid the
      numerical limitations prescribed in such clauses.
        (14) A "subscription" transmission is a transmission that is
      controlled and limited to particular recipients, and for which
      consideration is required to be paid or otherwise given by or on
      behalf of the recipient to receive the transmission or a package
      of transmissions including the transmission.
        (15) A "transmission" is either an initial transmission or a
      retransmission.
-SOURCE-
    (Pub. L. 94-553, title I, Sec. 101, Oct. 19, 1976, 90 Stat. 2560;
    Pub. L. 104-39, Sec. 3, Nov. 1, 1995, 109 Stat. 336; Pub. L. 105-
    80, Sec. 3, Nov. 13, 1997, 111 Stat. 1531; Pub. L. 105-304, title
    IV, Sec. 405(a)(1)-(4), Oct. 28, 1998, 112 Stat. 2890-2897; Pub. L.
    107-321, Secs. 4, 5(b), (c), Dec. 4, 2002, 116 Stat. 2781, 2784;
    Pub. L. 108-419, Sec. 5(c), Nov. 30, 2004, 118 Stat. 2362; Pub. L.
    109-303, Sec. 4(b), Oct. 6, 2006, 120 Stat. 1481.)
-MISC1-
                       HISTORICAL AND REVISION NOTES                   
                         HOUSE REPORT NO. 94-1476                     
      Subsection (a) of Section 114 specified that the exclusive rights
    of the owner of copyright in a sound recording are limited to the
    rights to reproduce the sound recording in copies or phonorecords,
    to prepare derivative works based on the copyrighted sound
    recording, and to distribute copies or phonorecords of the sound
    recording to the public. Subsection (a) states explicitly that the
    owner's rights "do not include any right of performance under
    section 106(4)." The Committee considered at length the arguments
    in favor of establishing a limited performance right, in the form
    of a compulsory license, for copyrighted sound recordings, but
    concluded that the problem requires further study. It therefore
    added a new subsection (d) to the bill requiring the Register of
    Copyrights to submit to Congress, on January 3, 1978, "a report
    setting forth recommendations as to whether this section should be
    amended to provide for performers and copyright owners * * * any
    performance rights" in copyrighted sound recordings. Under the new
    subsection, the report "should describe the status of such rights
    in foreign countries, the views of major interested parties, and
    specific legislative or other recommendations, if any."
      Subsection (b) of section 114 makes clear that statutory
    protection for sound recordings extends only to the particular
    sounds of which the recording consists, and would not prevent a
    separate recording of another performance in which those sounds are
    imitated. Thus, infringement takes place whenever all or any
    substantial portion of the actual sounds that go to make up a
    copyrighted sound recording are reproduced in phonorecords by
    repressing, transcribing, recapturing off the air, or any other
    method, or by reproducing them in the soundtrack or audio portion
    of a motion picture or other audiovisual work. Mere imitation of a
    recorded performance would not constitute a copyright infringement
    even where one performer deliberately sets out to simulate
    another's performance as exactly as possible.
      Under section 114, the exclusive right of owner of copyright in a
    sound recording to prepare derivative works based on the
    copyrighted sound recording is recognized. However, in view of the
    expressed intention not to give exclusive rights against imitative
    or simulated performances and recordings, the Committee adopted an
    amendment to make clear the scope of rights under section 106(2) in
    this context. Section 114(b) provides that the "exclusive right of
    the owner of copyright in a sound recording under clause (2) of
    section 106 is limited to the right to prepare a derivative work in
    which the actual sounds fixed in the sound recording are
    rearranged, remixed, or otherwise altered in sequence or quality."
      Another amendment deals with the use of copyrighted sound
    recordings "included in educational television and radio programs *
    * * distributed or transmitted by or through public broadcasting
    entities." This use of recordings is permissible without
    authorization from the owner of copyright in the sound recording,
    as long as "copies or phonorecords of said programs are not
    commercially distributed by or through public broadcasting entities
    to the general public."
      During the 1975 hearings, the Register of Copyrights expressed
    some concern that an invaluable segment of this country's musical
    heritage - in the form of sound recordings - had become
    inaccessible to musicologists and to others for scholarly purposes.
    Several of the major recording companies have responded to the
    Register's concern by granting blanket licenses to the Library of
    Congress to permit it to make single copy duplications of sound
    recordings maintained in the Library's archives for research
    purposes. Moreover, steps are being taken to determine the
    feasibility of additional licensing arrangements as a means of
    satisfying the needs of key regional music libraries across the
    country. The Register has agreed to report to Congress if further
    legislative consideration should be undertaken.
      Section 114(c) states explicitly that nothing in the provisions
    of section 114 should be construed to "limit or impair the
    exclusive right to perform publicly, by means of a phonorecord, any
    of the works specified by section 106(4)." This principle is
    already implicit in the bill, but it is restated to avoid the
    danger of confusion between rights in a sound recording and rights
    in the musical composition or other work embodied in the recording.
-REFTEXT-
                            REFERENCES IN TEXT                        
      Section 118(g) of this title, referred to in subsec. (b), was
    redesignated as section 118(f) by Pub. L. 108-419, Sec. 5(f)(2),
    Nov. 30, 2004, 118 Stat. 2366.
      Section 602(12) of the Communications Act of 1934, referred to in
    subsec. (d)(1)(C)(iii), was subsequently amended, and section
    602(12) no longer defines "multichannel video programming
    distributor". However, such term is defined elsewhere in that
    section.
      The date of the enactment of the Digital Millennium Copyright
    Act, referred to in subsec. (d)(2)(C)(ix), is the date of enactment
    of Pub. L. 105-304, which was approved Oct. 28, 1998.
      The date of enactment of the Digital Performance Right in Sound
    Recordings Act of 1995, referred to in subsec. (d)(4)(B)(iii), (C),
    is the date of enactment of Pub. L. 104-39, which was approved Nov.
    1, 1995.
      Section 6(b)(3) of the Copyright Royalty and Distribution Reform
    Act of 2004, referred to in subsec. (f)(1)(A), (B), (2)(A), (B), is
    section 6(b)(3) of Pub. L. 108-419, which is set out as a note
    under section 801 of this title.
      The effective date of the Copyright Royalty and Distribution
    Reform Act of 2004, referred to in subsec. (f)(4)(A), is the
    effective date of Pub. L. 108-419, which is 6 months after Nov. 30,
    2004, subject to transition provisions, see section 6 of Pub. L.
    108-419, set out as an Effective Date; Transition Provisions note
    under section 801 of this title.
      The Small Webcaster Settlement Act of 2002, referred to in
    subsec. (f)(5)(D), is Pub. L. 107-321, Dec. 4, 2002, 116 Stat.
    2780, which amended this section and enacted provisions set out as
    notes under this section and section 101 of this title. For
    complete classification of this Act to the Code, see Short Title of
    2002 Amendments note set out under section 101 of this title and
    Tables.
-MISC2-
                                AMENDMENTS                            
      2006 - Subsec. (f)(1)(A). Pub. L. 109-303, Sec. 4(b)(1),
    substituted "except in the case of a different transitional period
    provided under section 6(b)(3) of the Copyright Royalty and
    Distribution Reform Act of 2004, or such other period as the
    parties may agree." for "except where a different transitional
    period is provided under section 6(b)(3) of the Copyright Royalty
    and Distribution Reform Act of 2004 or such other period."
      Subsec. (f)(2)(A). Pub. L. 109-303, Sec. 4(b)(2), amended subpar.
    (A) generally. Prior to amendment, subpar. (A) related to rates and
    terms of royalty payments for subscription transmissions by
    eligible nonsubscription transmission services and new subscription
    services.
      Subsec. (f)(2)(B). Pub. L. 109-303, Sec. 4(b)(3), substituted
    "described in" for "negotiated under" in concluding provisions.
      2004 - Subsec. (f)(1)(A). Pub. L. 108-419, Sec. 5(c)(1)(A),
    substituted first sentence for former first sentence which read:
    "No later than 30 days after the enactment of the Digital
    Performance Right in Sound Recordings Act of 1995, the Librarian of
    Congress shall cause notice to be published in the Federal Register
    of the initiation of voluntary negotiation proceedings for the
    purpose of determining reasonable terms and rates of royalty
    payments for subscription transmissions by preexisting subscription
    services and transmissions by preexisting satellite digital audio
    radio services specified by subsection (d)(2) of this section
    during the period beginning on the effective date of such Act and
    ending on December 31, 2001, or, if a copyright arbitration royalty
    panel is convened, ending 30 days after the Librarian issues and
    publishes in the Federal Register an order adopting the
    determination of the copyright arbitration royalty panel or an
    order setting the terms and rates (if the Librarian rejects the
    panel's determination).", substituted "Copyright Royalty Judges"
    for "Librarian of Congress" in third sentence, and struck out
    "negotiation" before "proceeding" in fourth sentence.
      Subsec. (f)(1)(B). Pub. L. 108-419, Sec. 5(c)(1)(B), substituted
    first sentence for former first sentence which read: "In the
    absence of license agreements negotiated under subparagraph (A),
    during the 60-day period commencing 6 months after publication of
    the notice specified in subparagraph (A), and upon the filing of a
    petition in accordance with section 803(a)(1), the Librarian of
    Congress shall, pursuant to chapter 8, convene a copyright
    arbitration royalty panel to determine and publish in the Federal
    Register a schedule of rates and terms which, subject to paragraph
    (3), shall be binding on all copyright owners of sound recordings
    and entities performing sound recordings affected by this
    paragraph." and, in second sentence, substituted "Copyright Royalty
    Judges may consider" for "copyright arbitration royalty panel may
    consider" and "described" for "negotiated as provided".
      Subsec. (f)(1)(C). Pub. L. 108-419, Sec. 5(c)(1)(C), amended
    subpar. (C) generally. Prior to amendment, subpar. (C) related to
    repetition of publication of notices of the initiation of voluntary
    negotiation proceedings as specified in subpar. (A) and repetition
    of the procedures specified in subpar. (B).
      Subsec. (f)(2)(A). Pub. L. 108-419, Sec. 5(c)(2)(A)(ii), (iii),
    substituted "Copyright Royalty Judges" for "Librarian of Congress"
    in third sentence and struck out "negotiation" after "parties to
    each" in fourth sentence.
      Pub. L. 108-419, Sec. 5(c)(2)(A)(i), which directed the general
    amendment of the first paragraph, was executed by making the
    amendment to first sentence of subpar. (A) to reflect the probable
    intent of Congress. Prior to amendment, first sentence read as
    follows: "No later than 30 days after the date of the enactment of
    the Digital Millennium Copyright Act, the Librarian of Congress
    shall cause notice to be published in the Federal Register of the
    initiation of voluntary negotiation proceedings for the purpose of
    determining reasonable terms and rates of royalty payments for
    public performances of sound recordings by means of eligible
    nonsubscription transmissions and transmissions by new subscription
    services specified by subsection (d)(2) during the period beginning
    on the date of the enactment of such Act and ending on December 31,
    2000, or such other date as the parties may agree."
      Subsec. (f)(2)(B). Pub. L. 108-419, Sec. 5(c)(2)(B)(iii), which
    directed substitution of "described in" for "negotiated as
    provided" in last sentence, could not be executed because
    "negotiated as provided" does not appear in text.
      Pub. L. 108-419, Sec. 5(c)(2)(B)(ii), substituted "Copyright
    Royalty Judges" for "copyright arbitration royalty panel" wherever
    appearing after first sentence.
      Pub. L. 108-419, Sec. 5(c)(2)(B)(i), substituted first sentence
    for former first sentence which read: "In the absence of license
    agreements negotiated under subparagraph (A), during the 60-day
    period commencing 6 months after publication of the notice
    specified in subparagraph (A), and upon the filing of a petition in
    accordance with section 803(a)(1), the Librarian of Congress shall,
    pursuant to chapter 8, convene a copyright arbitration royalty
    panel to determine and publish in the Federal Register a schedule
    of rates and terms which, subject to paragraph (3), shall be
    binding on all copyright owners of sound recordings and entities
    performing sound recordings affected by this paragraph during the
    period beginning on the date of the enactment of the Digital
    Millennium Copyright Act and ending on December 31, 2000, or such
    other date as the parties may agree."
      Subsec. (f)(2)(C). Pub. L. 108-419, Sec. 5(c)(2)(C), amended
    subpar. (C) generally. Prior to amendment, subpar. (C) related to
    repetition of publication of notices of the initiation of voluntary
    negotiation proceedings as specified in subpar. (A) and repetition
    of the procedures specified in subpar. (B).
      Subsec. (f)(3). Pub. L. 108-419, Sec. 5(c)(3), substituted
    "decision by the Librarian of Congress or determination by the
    Copyright Royalty Judges" for "determination by a copyright
    arbitration royalty panel or decision by the Librarian of
    Congress".
      Subsec. (f)(4). Pub. L. 108-419, Sec. 5(c)(4), substituted
    "Copyright Royalty Judges" for "Librarian of Congress" in two
    places and inserted after first sentence in subpar. (A) "The notice
    and recordkeeping rules in effect on the day before the effective
    date of the Copyright Royalty and Distribution Reform Act of 2004
    shall remain in effect unless and until new regulations are
    promulgated by the Copyright Royalty Judges. If new regulations are
    promulgated under this subparagraph, the Copyright Royalty Judges
    shall take into account the substance and effect of the rules in
    effect on the day before the effective date of the Copyright
    Royalty and Distribution Reform Act of 2004 and shall, to the
    extent practicable, avoid significant disruption of the functions
    of any designated agent authorized to collect and distribute
    royalty fees."
      2002 - Subsec. (f)(5). Pub. L. 107-321, Sec. 4, added par. (5).
      Subsec. (g)(2). Pub. L. 107-321, Sec. 5(c), amended par. (2)
    generally. Prior to amendment, par. (2) read as follows: "The
    copyright owner of the exclusive right under section 106(6) of this
    title to publicly perform a sound recording by means of a digital
    audio transmission shall allocate to recording artists in the
    following manner its receipts from the statutory licensing of
    transmission performances of the sound recording in accordance with
    subsection (f) of this section:
        "(A) 2 1/2  percent of the receipts shall be deposited in an
      escrow account managed by an independent administrator jointly
      appointed by copyright owners of sound recordings and the
      American Federation of Musicians (or any successor entity) to be
      distributed to nonfeatured musicians (whether or not members of
      the American Federation of Musicians) who have performed on sound
      recordings.
        "(B) 2 1/2  percent of the receipts shall be deposited in an
      escrow account managed by an independent administrator jointly
      appointed by copyright owners of sound recordings and the
      American Federation of Television and Radio Artists (or any
      successor entity) to be distributed to nonfeatured vocalists
      (whether or not members of the American Federation of Television
      and Radio Artists) who have performed on sound recordings.
        "(C) 45 percent of the receipts shall be allocated, on a per
      sound recording basis, to the recording artist or artists
      featured on such sound recording (or the persons conveying rights
      in the artists' performance in the sound recordings)."
      Subsec. (g)(3), (4). Pub. L. 107-321, Sec. 5(b), added pars. (3)
    and (4).
      1998 - Subsec. (d)(1)(A). Pub. L. 105-304, Sec. 405(a)(1)(A),
    added subpar. (A) and struck out former subpar. (A) which read as
    follows:
      "(A)(i) a nonsubscription transmission other than a
    retransmission;
      "(ii) an initial nonsubscription retransmission made for direct
    reception by members of the public of a prior or simultaneous
    incidental transmission that is not made for direct reception by
    members of the public; or
      "(iii) a nonsubscription broadcast transmission;".
      Subsec. (d)(2). Pub. L. 105-304, Sec. 405(a)(1)(B), amended
    heading and text of par. (2) generally. Prior to amendment, text
    read as follows: "In the case of a subscription transmission not
    exempt under subsection (d)(1), the performance of a sound
    recording publicly by means of a digital audio transmission shall
    be subject to statutory licensing, in accordance with subsection
    (f) of this section, if - 
        "(A) the transmission is not part of an interactive service;
        "(B) the transmission does not exceed the sound recording
      performance complement;
        "(C) the transmitting entity does not cause to be published by
      means of an advance program schedule or prior announcement the
      titles of the specific sound recordings or phonorecords embodying
      such sound recordings to be transmitted;
        "(D) except in the case of transmission to a business
      establishment, the transmitting entity does not automatically and
      intentionally cause any device receiving the transmission to
      switch from one program channel to another; and
        "(E) except as provided in section 1002(e) of this title, the
      transmission of the sound recording is accompanied by the
      information encoded in that sound recording, if any, by or under
      the authority of the copyright owner of that sound recording,
      that identifies the title of the sound recording, the featured
      recording artist who performs on the sound recording, and related
      information, including information concerning the underlying
      musical work and its writer."
      Subsec. (f). Pub. L. 105-304, Sec. 405(a)(2)(A), substituted
    "Certain Nonexempt" for "Nonexempt Subscription" in heading.
      Subsec. (f)(1)(A). Pub. L. 105-304, Sec. 405(a)(2)(B), designated
    existing provisions as subpar. (A), in first sentence, substituted
    "subscription transmissions by preexisting subscription services
    and transmissions by preexisting satellite digital audio radio
    services" for "the activities" and "2001" for "2000", and amended
    third sentence generally. Prior to amendment, third sentence read
    as follows: "Any copyright owners of sound recordings or any
    entities performing sound recordings affected by this section may
    submit to the Librarian of Congress licenses covering such
    activities with respect to such sound recordings."
      Subsec. (f)(1)(B), (C). Pub. L. 105-304, Sec. 405(a)(2)(C), added
    subpars. (B) and (C).
      Subsec. (f)(2) to (5). Pub. L. 105-304, Sec. 405(a)(2)(C), added
    pars. (2) to (4) and struck out former pars. (2) to (5), which
    provided: in par. (2) that Librarian of Congress would convene a
    copyright arbitration royalty panel to determine schedule of rates
    and terms, that panel could consider rates and terms for comparable
    types of services under voluntary license agreements, and that
    requirements would be established by which copyright owners would
    receive notice of use of their recordings; in par. (3) that
    voluntarily negotiated license agreements would be given effect in
    lieu of determination by panel or decision by Librarian; in par.
    (4) that publication of notice of negotiations would be repeated no
    later than 30 days after petition was filed, in the first week of
    January, 2000, and at 5-year intervals thereafter, and that par.
    (2) procedures would be repeated upon filing of petition during a
    60-day period commencing six months after publication of notice or
    on July 1, 2000 and at 5-year intervals thereafter; and in par. (5)
    that performance by non-exempt subscription transmission without
    infringing copyright was permissible by compliance with notice
    requirements and payment of royalty fees or agreement to pay such
    fees.
      Subsec. (g). Pub. L. 105-304, Sec. 405(a)(3)(A), struck out
    "Subscription" before "Transmissions" in heading.
      Subsec. (g)(1). Pub. L. 105-304, Sec. 405(a)(3)(B), substituted
    "transmission licensed under a statutory license" for "subscription
    transmission licensed" in introductory provisions.
      Subsec. (g)(1)(A), (B). Pub. L. 105-304, Sec. 405(a)(3)(C),
    struck out "subscription" before "transmission".
      Subsec. (g)(2). Pub. L. 105-304, Sec. 405(a)(3)(D), struck out
    "subscription" before "transmission performances" in introductory
    provisions.
      Subsec. (j)(2), (3). Pub. L. 105-304, Sec. 405(a)(4)(A), (B),
    added par. (2) and redesignated former par. (2) as (3). Former par.
    (3) redesignated (5).
      Subsec. (j)(4). Pub. L. 105-304, Sec. 405(a)(4)(A), (C), added
    par. (4) and struck out former par. (4) which read as follows: "An
    'interactive service' is one that enables a member of the public to
    receive, on request, a transmission of a particular sound recording
    chosen by or on behalf of the recipient. The ability of individuals
    to request that particular sound recordings be performed for
    reception by the public at large does not make a service
    interactive. If an entity offers both interactive and non-
    interactive services (either concurrently or at different times),
    the non-interactive component shall not be treated as part of an
    interactive service."
      Subsec. (j)(5). Pub. L. 105-304, Sec. 405(a)(4)(A), redesignated
    par. (3) as (5). Former par. (5) redesignated (9).
      Subsec. (j)(6) to (8). Pub. L. 105-304, Sec. 405(a)(4)(A), (D),
    added pars. (6) to (8). Former pars. (6) to (8) redesignated (12)
    to (14), respectively.
      Subsec. (j)(9). Pub. L. 105-304, Sec. 405(a)(4)(A), redesignated
    par. (5) as (9) and struck out former par. (9) which read as
    follows: "A 'transmission' includes both an initial transmission
    and a retransmission."
      Subsec. (j)(10), (11). Pub. L. 105-304, Sec. 405(a)(4)(E), added
    pars. (10) and (11).
      Subsec. (j)(12) to (14). Pub. L. 105-304, Sec. 405(a)(4)(A),
    redesignated pars. (6) to (8) as (12) to (14), respectively.
      Subsec. (j)(15). Pub. L. 105-304, Sec. 405(a)(4)(F), added par.
    (15).
      1997 - Subsec. (f)(1). Pub. L. 105-80, Sec. 3(1), inserted ", or,
    if a copyright arbitration royalty panel is convened, ending 30
    days after the Librarian issues and publishes in the Federal
    Register an order adopting the determination of the copyright
    arbitration royalty panel or an order setting the terms and rates
    (if the Librarian rejects the panel's determination)" after
    "December 31, 2000".
      Subsec. (f)(2). Pub. L. 105-80, Sec. 3(2), struck out "and
    publish in the Federal Register" before "a schedule of rates and
    terms".
      1995 - Subsec. (a). Pub. L. 104-39, Sec. 3(1), substituted "(3)
    and (6) of section 106" for "and (3) of section 106".
      Subsec. (b). Pub. L. 104-39, Sec. 3(2), substituted "phonorecords
    or copies" for "phonorecords, or of copies of motion pictures and
    other audiovisual works," in first sentence.
      Subsec. (d). Pub. L. 104-39, Sec. 3(3), added subsec. (d) and
    struck out former subsec. (d), which read as follows: "On January
    3, 1978, the Register of Copyrights, after consulting with
    representatives of owners of copyrighted materials, representatives
    of the broadcasting, recording, motion picture, entertainment
    industries, and arts organizations, representatives of organized
    labor and performers of copyrighted materials, shall submit to the
    Congress a report setting forth recommendations as to whether this
    section should be amended to provide for performers and copyright
    owners of copyrighted material any performance rights in such
    material. The report should describe the status of such rights in
    foreign countries, the views of major interested parties, and
    specific legislative or other recommendations, if any."
      Subsecs. (e) to (j). Pub. L. 104-39, Sec. 3(4), added subsecs.
    (e) to (j).
                     EFFECTIVE DATE OF 2006 AMENDMENT                 
      Amendment by Pub. L. 109-303 effective as if included in the
    Copyright Royalty and Distribution Reform Act of 2004, Pub. L. 108-
    419, see section 6 of Pub. L. 109-303, set out as a note under
    section 111 of this title.
                     EFFECTIVE DATE OF 2004 AMENDMENT                 
      Amendment by Pub. L. 108-419 effective 6 months after Nov. 30,
    2004, subject to transition provisions, see section 6 of Pub. L.
    108-419, set out as an Effective Date; Transition Provisions note
    under section 801 of this title.
                     EFFECTIVE DATE OF 1998 AMENDMENT                 
      Amendment by section 405(a)(1), (2)(A), (B)(i)(I), (II), (ii),
    (3), (4) of Pub. L. 105-304 effective Oct. 28, 1998, except as
    otherwise provided, see section 407 of Pub. L. 105-304, set out as
    a note under section 108 of this title.
      Pub. L. 105-304, title IV, Sec. 405(a)(5), Oct. 28, 1998, 112
    Stat. 2899, provided that: "The amendment made by paragraph
    (2)(B)(i)(III) of this subsection [amending this section] shall be
    deemed to have been enacted as part of the Digital Performance
    Right in Sound Recordings Act of 1995 [Pub. L. 104-39], and the
    publication of notice of proceedings under section 114(f)(1) of
    title 17, United States Code, as in effect upon the effective date
    of that Act [see Effective Date of 1995 Amendment note set out
    under section 101 of this title], for the determination of royalty
    payments shall be deemed to have been made for the period beginning
    on the effective date of that Act and ending on December 1, 2001."
                     EFFECTIVE DATE OF 1995 AMENDMENT                 
      Amendment by Pub. L. 104-39 effective 3 months after Nov. 1,
    1995, except that provisions of subsecs. (e) and (f) of this
    section effective Nov. 1, 1995, see section 6 of Pub. L. 104-39,
    set out as a note under section 101 of this title.
                      CONSTRUCTION OF 1998 AMENDMENT                  
      Pub. L. 105-304, title IV, Sec. 405(a)(6), Oct. 28, 1998, 112
    Stat. 2899, provided that: "The amendments made by this subsection
    [amending this section] do not annul, limit, or otherwise impair
    the rights that are preserved by section 114 of title 17, United
    States Code, including the rights preserved by subsections (c),
    (d)(4), and (i) of such section."
                   FINDINGS RELATING TO PUB. L. 107-321               
      Pub. L. 107-321, Sec. 2, Dec. 4, 2002, 116 Stat. 2780, provided
    that: "Congress finds the following:
        "(1) Some small webcasters who did not participate in the
      copyright arbitration royalty panel proceeding leading to the
      July 8, 2002 order of the Librarian of Congress establishing
      rates and terms for certain digital performances and ephemeral
      reproductions of sound recordings, as provided in part 261 of the
      Code of Federal Regulations (published in the Federal Register on
      July 8, 2002) (referred to in this section as 'small
      webcasters'), have expressed reservations about the fee structure
      set forth in such order, and have expressed their desire for a
      fee based on a percentage of revenue.
        "(2) Congress has strongly encouraged representatives of
      copyright owners of sound recordings and representatives of the
      small webcasters to engage in negotiations to arrive at an
      agreement that would include a fee based on a percentage of
      revenue.
        "(3) The representatives have arrived at an agreement that they
      can accept in the extraordinary and unique circumstances here
      presented, specifically as to the small webcasters, their belief
      in their inability to pay the fees due pursuant to the July 8
      order, and as to the copyright owners of sound recordings and
      performers, the strong encouragement of Congress to reach an
      accommodation with the small webcasters on an expedited basis.
        "(4) The representatives have indicated that they do not
      believe the agreement provides for or in any way approximates
      fair or reasonable royalty rates and terms, or rates and terms
      that would have been negotiated in the marketplace between a
      willing buyer and a willing seller.
        "(5) Congress has made no determination as to whether the
      agreement provides for or in any way approximates fair or
      reasonable fees and terms, or rates and terms that would have
      been negotiated in the marketplace between a willing buyer and a
      willing seller.
        "(6) Congress likewise has made no determination as to whether
      the July 8 order is reasonable or arbitrary, and nothing in this
      Act [amending this section and enacting provisions set out as
      notes under this section and section 101 of this title] shall be
      taken into account by the United States Court of Appeals for the
      District of Columbia Circuit in its review of such order.
        "(7) It is, nevertheless, in the public interest for the
      parties to be able to enter into such an agreement without fear
      of liability for deviating from the fees and terms of the July 8
      order, if it is clear that the agreement will not be admissible
      as evidence or otherwise taken into account in any government
      proceeding involving the setting or adjustment of the royalties
      payable to copyright owners of sound recordings for the public
      performance or reproduction in ephemeral phonorecords or copies
      of such works, the determination of terms or conditions related
      thereto, or the establishment of notice or recordkeeping
      requirements."
      Pub. L. 107-321, Sec. 5(a), Dec. 4, 2002, 116 Stat. 2783,
    provided that: "Congress finds that - 
        "(1) in the case of royalty payments from the licensing of
      digital transmissions of sound recordings under subsection (f) of
      section 114 of title 17, United States Code, the parties have
      voluntarily negotiated arrangements under which payments shall be
      made directly to featured recording artists and the
      administrators of the accounts provided in subsection (g)(2) of
      that section;
        "(2) such voluntarily negotiated payment arrangements have been
      codified in regulations issued by the Librarian of Congress,
      currently found in section 261.4 of title 37, Code of Federal
      Regulations, as published in the Federal Register on July 8,
      2002;
        "(3) other regulations issued by the Librarian of Congress were
      inconsistent with the voluntarily negotiated arrangements by such
      parties concerning the deductibility of certain costs incurred
      for licensing and arbitration, and Congress is therefore
      restoring those terms as originally negotiated among the parties;
      and
        "(4) in light of the special circumstances described in this
      subsection, the uncertainty created by the regulations issued by
      the Librarian of Congress, and the fact that all of the
      interested parties have reached agreement, the voluntarily
      negotiated arrangements agreed to among the parties are being
      codified."
                      SUSPENSION OF CERTAIN PAYMENTS                  
      Pub. L. 107-321, Sec. 3, Dec. 4, 2002, 116 Stat. 2781, provided
    that:
      "(a) Noncommercial Webcasters. - 
        "(1) In general. - The payments to be made by noncommercial
      webcasters for the digital performance of sound recordings under
      section 114 of title 17, United States Code, and the making of
      ephemeral phonorecords under section 112 of title 17, United
      States Code, during the period beginning on October 28, 1998, and
      ending on May 31, 2003, which have not already been paid, shall
      not be due until June 20, 2003.
        "(2) Definition. - In this subsection, the term 'noncommercial
      webcaster' has the meaning given that term in section
      114(f)(5)(E)(i) of title 17, United States Code, as added by
      section 4 of this Act.
      "(b) Small Commercial Webcasters. - 
        "(1) In general. - The receiving agent may, in a writing signed
      by an authorized representative thereof, delay the obligation of
      any 1 or more small commercial webcasters to make payments
      pursuant to sections 112 and 114 of title 17, United States Code,
      for a period determined by such entity to allow negotiations as
      permitted in section 4 of this Act [amending this section],
      except that any such period shall end no later than December 15,
      2002. The duration and terms of any such delay shall be as set
      forth in such writing.
        "(2) Definitions. - In this subsection - 
          "(A) the term 'webcaster' has the meaning given that term in
        section 114(f)(5)(E)(iii) of title 17, United States Code, as
        added by section 4 of this Act; and
          "(B) the term 'receiving agent' shall have the meaning given
        that term in section 261.2 of title 37, Code of Federal
        Regulations, as published in the Federal Register on July 8,
        2002."
                            REPORT TO CONGRESS                        
      Pub. L. 107-321, Sec. 6, Dec. 4, 2002, 116 Stat. 2785, provided
    that: "By not later than June 1, 2004, the Comptroller General of
    the United States, in consultation with the Register of Copyrights,
    shall conduct and submit to the Committee on the Judiciary of the
    House of Representatives and the Committee on the Judiciary of the
    Senate a study concerning the economic arrangements among small
    commercial webcasters covered by agreements entered into pursuant
    to section 114(f)(5)(A) of title 17, United States Code, as added
    by section 4 of this Act, and third parties, and the effect of
    those arrangements on royalty fees payable on a percentage of
    revenue or expense basis."
-FOOTNOTE-
    (!1) See References in Text note below.
    (!2) So in original. Probably should be followed by "Reform".
    (!3) So in original. Probably should be "their".
-End-
-CITE-
    17 USC Sec. 115                                             01/03/2007
-EXPCITE-
    TITLE 17 - COPYRIGHTS
    CHAPTER 1 - SUBJECT MATTER AND SCOPE OF COPYRIGHT
-HEAD-
    Sec. 115. Scope of exclusive rights in nondramatic musical works:
      Compulsory license for making and distributing phonorecords
-STATUTE-
      In the case of nondramatic musical works, the exclusive rights
    provided by clauses (1) and (3) of section 106, to make and to
    distribute phonorecords of such works, are subject to compulsory
    licensing under the conditions specified by this section.
      (a) Availability and Scope of Compulsory License. - 
        (1) When phonorecords of a nondramatic musical work have been
      distributed to the public in the United States under the
      authority of the copyright owner, any other person, including
      those who make phonorecords or digital phonorecord deliveries,
      may, by complying with the provisions of this section, obtain a
      compulsory license to make and distribute phonorecords of the
      work. A person may obtain a compulsory license only if his or her
      primary purpose in making phonorecords is to distribute them to
      the public for private use, including by means of a digital
      phonorecord delivery. A person may not obtain a compulsory
      license for use of the work in the making of phonorecords
      duplicating a sound recording fixed by another, unless: (i) such
      sound recording was fixed lawfully; and (ii) the making of the
      phonorecords was authorized by the owner of copyright in the
      sound recording or, if the sound recording was fixed before
      February 15, 1972, by any person who fixed the sound recording
      pursuant to an express license from the owner of the copyright in
      the musical work or pursuant to a valid compulsory license for
      use of such work in a sound recording.
        (2) A compulsory license includes the privilege of making a
      musical arrangement of the work to the extent necessary to
      conform it to the style or manner of interpretation of the
      performance involved, but the arrangement shall not change the
      basic melody or fundamental character of the work, and shall not
      be subject to protection as a derivative work under this title,
      except with the express consent of the copyright owner.
      (b) Notice of Intention To Obtain Compulsory License. - 
        (1) Any person who wishes to obtain a compulsory license under
      this section shall, before or within thirty days after making,
      and before distributing any phonorecords of the work, serve
      notice of intention to do so on the copyright owner. If the
      registration or other public records of the Copyright Office do
      not identify the copyright owner and include an address at which
      notice can be served, it shall be sufficient to file the notice
      of intention in the Copyright Office. The notice shall comply, in
      form, content, and manner of service, with requirements that the
      Register of Copyrights shall prescribe by regulation.
        (2) Failure to serve or file the notice required by clause (1)
      forecloses the possibility of a compulsory license and, in the
      absence of a negotiated license, renders the making and
      distribution of phonorecords actionable as acts of infringement
      under section 501 and fully subject to the remedies provided by
      sections 502 through 506 and 509.
      (c) Royalty Payable Under Compulsory License. - 
        (1) To be entitled to receive royalties under a compulsory
      license, the copyright owner must be identified in the
      registration or other public records of the Copyright Office. The
      owner is entitled to royalties for phonorecords made and
      distributed after being so identified, but is not entitled to
      recover for any phonorecords previously made and distributed.
        (2) Except as provided by clause (1), the royalty under a
      compulsory license shall be payable for every phonorecord made
      and distributed in accordance with the license. For this purpose,
      and other than as provided in paragraph (3), a phonorecord is
      considered "distributed" if the person exercising the compulsory
      license has voluntarily and permanently parted with its
      possession. With respect to each work embodied in the
      phonorecord, the royalty shall be either two and three-fourths
      cents, or one-half of one cent per minute of playing time or
      fraction thereof, whichever amount is larger.
        (3)(A) A compulsory license under this section includes the
      right of the compulsory licensee to distribute or authorize the
      distribution of a phonorecord of a nondramatic musical work by
      means of a digital transmission which constitutes a digital
      phonorecord delivery, regardless of whether the digital
      transmission is also a public performance of the sound recording
      under section 106(6) of this title or of any nondramatic musical
      work embodied therein under section 106(4) of this title. For
      every digital phonorecord delivery by or under the authority of
      the compulsory licensee - 
          (i) on or before December 31, 1997, the royalty payable by
        the compulsory licensee shall be the royalty prescribed under
        paragraph (2) and chapter 8 of this title; and
          (ii) on or after January 1, 1998, the royalty payable by the
        compulsory licensee shall be the royalty prescribed under
        subparagraphs (B) through (E) and chapter 8 of this title.
        (B) Notwithstanding any provision of the antitrust laws, any
      copyright owners of nondramatic musical works and any persons
      entitled to obtain a compulsory license under subsection (a)(1)
      may negotiate and agree upon the terms and rates of royalty
      payments under this section and the proportionate division of
      fees paid among copyright owners, and may designate common agents
      on a nonexclusive basis to negotiate, agree to, pay or receive
      such royalty payments. Such authority to negotiate the terms and
      rates of royalty payments includes, but is not limited to, the
      authority to negotiate the year during which the royalty rates
      prescribed under this subparagraph and subparagraphs (C) through
      (E) and chapter 8 of this title shall next be determined.
        (C) Proceedings under chapter 8 shall determine reasonable
      rates and terms of royalty payments for the activities specified
      by this section during the period beginning with the effective
      date of such rates and terms, but not earlier than January 1 of
      the second year following the year in which the petition
      requesting the proceeding is filed, and ending on the effective
      date of successor rates and terms, or such other period as the
      parties may agree. Such terms and rates shall distinguish between
      (i) digital phonorecord deliveries where the reproduction or
      distribution of a phonorecord is incidental to the transmission
      which constitutes the digital phonorecord delivery, and (ii)
      digital phonorecord deliveries in general. Any copyright owners
      of nondramatic musical works and any persons entitled to obtain a
      compulsory license under subsection (a)(1) may submit to the
      Copyright Royalty Judges licenses covering such activities. The
      parties to each proceeding shall bear their own costs.
        (D) The schedule of reasonable rates and terms determined by
      the Copyright Royalty Judges shall, subject to subparagraph (E),
      be binding on all copyright owners of nondramatic musical works
      and persons entitled to obtain a compulsory license under
      subsection (a)(1) during the period specified in subparagraph
      (C), such other period as may be determined pursuant to
      subparagraphs (B) and (C), or such other period as the parties
      may agree. Such terms and rates shall distinguish between (i)
      digital phonorecord deliveries where the reproduction or
      distribution of a phonorecord is incidental to the transmission
      which constitutes the digital phonorecord delivery, and (ii)
      digital phonorecord deliveries in general. In addition to the
      objectives set forth in section 801(b)(1), in establishing such
      rates and terms, the Copyright Royalty Judges may consider rates
      and terms under voluntary license agreements described in
      subparagraphs (B) and (C). The royalty rates payable for a
      compulsory license for a digital phonorecord delivery under this
      section shall be established de novo and no precedential effect
      shall be given to the amount of the royalty payable by a
      compulsory licensee for digital phonorecord deliveries on or
      before December 31, 1997. The Copyright Royalty Judges shall also
      establish requirements by which copyright owners may receive
      reasonable notice of the use of their works under this section,
      and under which records of such use shall be kept and made
      available by persons making digital phonorecord deliveries.
        (E)(i) License agreements voluntarily negotiated at any time
      between one or more copyright owners of nondramatic musical works
      and one or more persons entitled to obtain a compulsory license
      under subsection (a)(1) shall be given effect in lieu of any
      determination by the Librarian of Congress and Copyright Royalty
      Judges. Subject to clause (ii), the royalty rates determined
      pursuant to subparagraph (!1) (C) and (D) shall be given effect
      as to digital phonorecord deliveries in lieu of any contrary
      royalty rates specified in a contract pursuant to which a
      recording artist who is the author of a nondramatic musical work
      grants a license under that person's exclusive rights in the
      musical work under paragraphs (1) and (3) of section 106 or
      commits another person to grant a license in that musical work
      under paragraphs (1) and (3) of section 106, to a person desiring
      to fix in a tangible medium of expression a sound recording
      embodying the musical work.
        (ii) The second sentence of clause (i) shall not apply to - 
          (I) a contract entered into on or before June 22, 1995, and
        not modified thereafter for the purpose of reducing the royalty
        rates determined pursuant to subparagraph (!1) (C) and (D) or
        of increasing the number of musical works within the scope of
        the contract covered by the reduced rates, except if a contract
        entered into on or before June 22, 1995, is modified thereafter
        for the purpose of increasing the number of musical works
        within the scope of the contract, any contrary royalty rates
        specified in the contract shall be given effect in lieu of
        royalty rates determined pursuant to subparagraph (!1) (C) and
        (D) for the number of musical works within the scope of the
        contract as of June 22, 1995; and
          (II) a contract entered into after the date that the sound
        recording is fixed in a tangible medium of expression
        substantially in a form intended for commercial release, if at
        the time the contract is entered into, the recording artist
        retains the right to grant licenses as to the musical work
        under paragraphs (1) and (3) of section 106.
        (F) Except as provided in section 1002(e) of this title, a
      digital phonorecord delivery licensed under this paragraph shall
      be accompanied by the information encoded in the sound recording,
      if any, by or under the authority of the copyright owner of that
      sound recording, that identifies the title of the sound
      recording, the featured recording artist who performs on the
      sound recording, and related information, including information
      concerning the underlying musical work and its writer.
        (G)(i) A digital phonorecord delivery of a sound recording is
      actionable as an act of infringement under section 501, and is
      fully subject to the remedies provided by sections 502 through
      506 and section 509, unless - 
          (I) the digital phonorecord delivery has been authorized by
        the copyright owner of the sound recording; and
          (II) the owner of the copyright in the sound recording or the
        entity making the digital phonorecord delivery has obtained a
        compulsory license under this section or has otherwise been
        authorized by the copyright owner of the musical work to
        distribute or authorize the distribution, by means of a digital
        phonorecord delivery, of each musical work embodied in the
        sound recording.
        (ii) Any cause of action under this subparagraph shall be in
      addition to those available to the owner of the copyright in the
      nondramatic musical work under subsection (c)(6) and section
      106(4) and the owner of the copyright in the sound recording
      under section 106(6).
        (H) The liability of the copyright owner of a sound recording
      for infringement of the copyright in a nondramatic musical work
      embodied in the sound recording shall be determined in accordance
      with applicable law, except that the owner of a copyright in a
      sound recording shall not be liable for a digital phonorecord
      delivery by a third party if the owner of the copyright in the
      sound recording does not license the distribution of a
      phonorecord of the nondramatic musical work.
        (I) Nothing in section 1008 shall be construed to prevent the
      exercise of the rights and remedies allowed by this paragraph,
      paragraph (6), and chapter 5 in the event of a digital
      phonorecord delivery, except that no action alleging infringement
      of copyright may be brought under this title against a
      manufacturer, importer or distributor of a digital audio
      recording device, a digital audio recording medium, an analog
      recording device, or an analog recording medium, or against a
      consumer, based on the actions described in such section.
        (J) Nothing in this section annuls or limits (i) the exclusive
      right to publicly perform a sound recording or the musical work
      embodied therein, including by means of a digital transmission,
      under sections 106(4) and 106(6), (ii) except for compulsory
      licensing under the conditions specified by this section, the
      exclusive rights to reproduce and distribute the sound recording
      and the musical work embodied therein under sections 106(1) and
      106(3), including by means of a digital phonorecord delivery, or
      (iii) any other rights under any other provision of section 106,
      or remedies available under this title, as such rights or
      remedies exist either before or after the date of enactment of
      the Digital Performance Right in Sound Recordings Act of 1995.
        (K) The provisions of this section concerning digital
      phonorecord deliveries shall not apply to any exempt
      transmissions or retransmissions under section 114(d)(1). The
      exemptions created in section 114(d)(1) do not expand or reduce
      the rights of copyright owners under section 106(1) through (5)
      with respect to such transmissions and retransmissions.
        (4) A compulsory license under this section includes the right
      of the maker of a phonorecord of a nondramatic musical work under
      subsection (a)(1) to distribute or authorize distribution of such
      phonorecord by rental, lease, or lending (or by acts or practices
      in the nature of rental, lease, or lending). In addition to any
      royalty payable under clause (2) and chapter 8 of this title, a
      royalty shall be payable by the compulsory licensee for every act
      of distribution of a phonorecord by or in the nature of rental,
      lease, or lending, by or under the authority of the compulsory
      licensee. With respect to each nondramatic musical work embodied
      in the phonorecord, the royalty shall be a proportion of the
      revenue received by the compulsory licensee from every such act
      of distribution of the phonorecord under this clause equal to the
      proportion of the revenue received by the compulsory licensee
      from distribution of the phonorecord under clause (2) that is
      payable by a compulsory licensee under that clause and under
      chapter 8. The Register of Copyrights shall issue regulations to
      carry out the purpose of this clause.
        (5) Royalty payments shall be made on or before the twentieth
      day of each month and shall include all royalties for the month
      next preceding. Each monthly payment shall be made under oath and
      shall comply with requirements that the Register of Copyrights
      shall prescribe by regulation. The Register shall also prescribe
      regulations under which detailed cumulative annual statements of
      account, certified by a certified public accountant, shall be
      filed for every compulsory license under this section. The
      regulations covering both the monthly and the annual statements
      of account shall prescribe the form, content, and manner of
      certification with respect to the number of records made and the
      number of records distributed.
        (6) If the copyright owner does not receive the monthly payment
      and the monthly and annual statements of account when due, the
      owner may give written notice to the licensee that, unless the
      default is remedied within thirty days from the date of the
      notice, the compulsory license will be automatically terminated.
      Such termination renders either the making or the distribution,
      or both, of all phonorecords for which the royalty has not been
      paid, actionable as acts of infringement under section 501 and
      fully subject to the remedies provided by sections 502 through
      506 and 509.
      (d) Definition. - As used in this section, the following term has
    the following meaning: A "digital phonorecord delivery" is each
    individual delivery of a phonorecord by digital transmission of a
    sound recording which results in a specifically identifiable
    reproduction by or for any transmission recipient of a phonorecord
    of that sound recording, regardless of whether the digital
    transmission is also a public performance of the sound recording or
    any nondramatic musical work embodied therein. A digital
    phonorecord delivery does not result from a real-time, non-
    interactive subscription transmission of a sound recording where
    no reproduction of the sound recording or the musical work embodied
    therein is made from the inception of the transmission through to
    its receipt by the transmission recipient in order to make the
    sound recording audible.
-SOURCE-
    (Pub. L. 94-553, title I, Sec. 101, Oct. 19, 1976, 90 Stat. 2561;
    Pub. L. 98-450, Sec. 3, Oct. 4, 1984, 98 Stat. 1727; Pub. L. 104-
    39, Sec. 4, Nov. 1, 1995, 109 Stat. 344; Pub. L. 105-80, Secs. 4,
    10, 12(a)(7), Nov. 13, 1997, 111 Stat. 1531, 1534; Pub. L. 108-419,
    Sec. 5(d), Nov. 30, 2004, 118 Stat. 2364; Pub. L. 109-303, Sec.
    4(c), Oct. 6, 2006, 120 Stat. 1482.)
-MISC1-
                       HISTORICAL AND REVISION NOTES                   
                         HOUSE REPORT NO. 94-1476                     
      The provisions of section 1(e) and 101(e) of the present law
    [sections 1(e) and 101(e) of former title 17], establishing a
    system of compulsory licensing for the making and distribution of
    phonorecords of copyrighted music, are retained with a number of
    modifications and clarifications in section 115 of the bill. Under
    these provisions, which represented a compromise of the most
    controversial issue of the 1909 act, a musical composition that has
    been reproduced in phonorecords with the permission of the
    copyright owner may generally be reproduced in phonorecords by
    another person, if that person notifies the copyright owner and
    pays a specified royalty.
      The fundamental question of whether to retain the compulsory
    license or to do away with it altogether was a major issue during
    earlier stages of the program for general revision of the copyright
    law. At the hearings it was apparent that the argument on this
    point had shifted, and the real issue was not whether to retain the
    compulsory license but how much the royalty rate under it should
    be. The arguments for and against retention of the compulsory
    license are outlined at pages 66-67 of this Committee's 1967 report
    (H. Rept. No. 83, 90th Cong., 1st Sess.). The Committee's
    conclusion on this point remains the same as in 1967: "that a
    compulsory licensing system is still warranted as a condition for
    the rights of reproducing and distributing phonorecords of
    copyrighted music," but "that the present system is unfair and
    unnecessarily burdensome on copyright owners, and that the present
    statutory rate is too low."
      Availability and Scope of Compulsory License. Subsection (a) of
    section 115 deals with three doubtful questions under the present
    law: (1) the nature of the original recording that will make the
    work available to others for recording under a compulsory license;
    (2) the nature of the sound recording that can be made under a
    compulsory license; and (3) the extent to which someone acting
    under a compulsory license can depart from the work as written or
    recorded without violating the copyright owner's right to make an
    "arrangement" or other derivative work. The first two of these
    questions are answered in clause (1) of section 115(a), and the
    third is the subject of clause (2).
      The present law, though not altogether clear, apparently bases
    compulsory licensing on the making or licensing of the first
    recording, even if no authorized records are distributed to the
    public. The first sentence of section 115(a)(1) would change the
    basis for compulsory licensing to authorized public distribution of
    phonorecords (including disks and audio tapes but not the sound
    tracks or other sound records accompanying a motion picture or
    other audiovisual work). Under the clause, a compulsory license
    would be available to anyone as soon as "phonorecords of a
    nondramatic musical work have been distributed to the public in the
    United States under the authority of the copyright owner."
      The second sentence of clause (1), which has been the subject of
    some debate, provides that "a person may obtain a compulsory
    license only if his or her primary purpose in making phonorecords
    is to distribute them to the public for private use." This
    provision was criticized as being discriminatory against background
    music systems, since it would prevent a background music producer
    from making recordings without the express consent of the copyright
    owner; it was argued that this could put the producer at a great
    competitive disadvantage with performing rights societies, allow
    discrimination, and destroy or prevent entry of businesses. The
    committee concluded, however, that the purpose of the compulsory
    license does not extend to manufacturers of phonorecords that are
    intended primarily for commercial use, including not only
    broadcasters and jukebox operators but also background music
    services.
      The final sentence of clause (1) provides that a person may not
    obtain a compulsory license for use of the work in the duplication
    of a sound recording made by another, unless the sound recording
    being duplicated was itself fixed lawfully and the making of
    phonorecords duplicated from it was authorized by the owner of
    copyright in the sound recording (or, if the recording was fixed
    before February 15, 1972, by the voluntary or compulsory licensee
    of the music used in the recording). The basic intent of this
    sentence is to make clear that a person is not entitled to a
    compulsory license of copyrighted musical works for the purpose of
    making an unauthorized duplication of a musical sound recording
    originally developed and produced by another. It is the view of the
    Committee that such was the original intent of the Congress in
    enacting the 1909 Copyright Act, and it has been so construed by
    the 3d, 5th, 9th and 10th Circuits in the following cases: Duchess
    Music Corp. v. Stern, 458 F.2d 1305 (9th Cir.), cert. denied, 409
    U.S. 847 (1972) [93 S.Ct. 52, 34 L.Ed.2d 88]; Edward B. Marks Music
    Corp. v. Colorado Magnetics, Inc., 497 F.2d 285, aff'd on rehearing
    en banc, 497 F.2d 292 (10th Cir. 1974), cert. denied, 419 U.S. 1120
    (1975) [95 S.Ct. 801, 42 L.Ed.2d 819]; Jondora Music Publishing Co.
    v. Melody Recordings, Inc., 506 F.2d 392 (3d Cir. 1974, as amended
    1975), cert. denied, 421 U.S. 1012 (1975) [95 S.Ct. 2417, 44
    L.Ed.2d 680]; and Fame Publishing Co. v. Alabama Custom Tape, Inc.,
    507 F.2d 667 (5th Cir.), cert. denied, 423 U.S. 841 (1975) [96
    S.Ct. 73, 46 L.Ed.2d 61].
      Under this provision, it would be possible to obtain a compulsory
    license for the use of copyrighted music under section 115 if the
    owner of the sound recording being duplicated authorizes its
    duplication. This does not, however, in any way require the owner
    of the original sound recording to grant a license to duplicate the
    original sound recording. It is not intended that copyright
    protection for sound recordings be circumscribed by requiring the
    owners of sound recordings to grant a compulsory license to
    unauthorized duplicators or others.
      The second clause of subsection (a) is intended to recognize the
    practical need for a limited privilege to make arrangements of
    music being used under a compulsory license, but without allowing
    the music to be perverted, distorted, or travestied. Clause (2)
    permits arrangements of a work "to the extent necessary to conform
    it to the style or manner of interpretation of the performance
    involved," so long as it does not "change the basic melody or
    fundamental character of the work." The provision also prohibits
    the compulsory licensee from claiming an independent copyright in
    his arrangement as a "derivative work" without the express consent
    of the copyright owner.
      Procedure for Obtaining Compulsory License. Section 115(b)(1)
    requires anyone who wishes to take advantage of the compulsory
    licensing provisions to serve a "notice of intention to obtain a
    compulsory license," which is much like the "notice of intention to
    use" required by the present law. Under section 115, the notice
    must be served before any phonorecords are distributed, but service
    can take place "before or within 30 days after making" any
    phonorecords. The notice is to be served on the copyright owner,
    but if the owner is not identified in the Copyright Office records,
    "it shall be sufficient to file the notice of intention in the
    Copyright Office."
      The Committee deleted clause (2) of section 115(b) of S. 22 as
    adopted by the Senate. The provision was a vestige of jukebox
    provisions in earlier bills, and its requirements no longer served
    any useful purpose.
      Clause (2) [formerly clause (3)] of section 115(b) [cl. (2) of
    subsec. (b) of this section] provides that "failure to serve or
    file the notice required by clause (1) * * * forecloses the
    possibility of a compulsory license and, in the absence of a
    negotiated license, renders the making and distribution of
    phonorecords actionable as acts of infringement under section 501
    and fully subject to the remedies provided by sections 502 through
    506." The remedies provided in section 501 are those applicable to
    infringements generally.
      Royalty Payable Under Compulsory License. Identification of
    Copyright Owner. - Under the present law a copyright owner is
    obliged to file a "notice of use" in the Copyright Office, stating
    that the initial recording of the copyrighted work has been made or
    licensed, in order to recover against an unauthorized record
    manufacturer. This requirement has resulted in a technical loss of
    rights in some cases, and serves little or no purpose where the
    registration and assignment records of the Copyright Office already
    show the facts of ownership. Section 115(c)(1) therefore drops any
    formal "notice of use" requirements and merely provides that, "to
    be entitled to receive royalties under a compulsory license, the
    copyright owner must be identified in the registration or other
    public records of the Copyright Office." On the other hand, since
    proper identification is an important precondition of recovery, the
    bill further provides that "the owner is entitled to royalties for
    phonorecords manufactured and distributed after being so
    identified, but is not entitled to recover for any phonorecords
    previously made and distributed."
      Basis of Royalty. - Under the present statute the specified
    royalty is payable "on each such part manufactured," regardless of
    how many "parts" (i.e., records) are sold. This basis for
    calculating the royalty has been revised in section 115(c)(2) to
    provide that "the royalty under a compulsory license shall be
    payable for every phonorecord made and distributed in accordance
    with the license." This basis is more compatible with the general
    practice in negotiated licenses today. It is unjustified to require
    a compulsory licensee to pay license fees on records which merely
    go into inventory, which may later be destroyed, and from which the
    record producer gains no economic benefit.
      It is intended that the Register of Copyrights will prescribe
    regulations insuring that copyright owners will receive full and
    prompt payment for all phonorecords made and distributed. Section
    115(c)(2) states that "a phonorecord is considered 'distributed' if
    the person exercising the compulsory license has voluntarily and
    permanently parted with its possession." For this purpose, the
    concept of "distribution" comprises any act by which the person
    exercising the compulsory license voluntarily relinquishes
    possession of a phonorecord (considered as a fungible unit),
    regardless of whether the distribution is to the public, passes
    title, constitutes a gift, or is sold, rented, leased, or loaned,
    unless it is actually returned and the transaction cancelled.
    Neither involuntary relinquishment, as through theft or fire, nor
    the destruction of unwanted records, would constitute
    "distribution."
      The term "made" is intended to be broader than "manufactured,"
    and to include within its scope every possible manufacturing or
    other process capable of reproducing a sound recording in
    phonorecords. The use of the phrase "made and distributed"
    establishes the basis upon which the royalty rate for compulsory
    licensing under section 115 is to be calculated, but it is in no
    way intended to weaken the liability of record pressers and other
    manufacturers and makers of phonorecords for copyright infringement
    where the compulsory licensing requirements have not been met. As
    under the present law, even if a presser, manufacturer, or other
    maker had no role in the distribution process, that person would be
    regarded as jointly and severally liable in a case where the court
    finds that infringement has taken place because of failure to
    comply with the provisions of section 115.
      Under existing practices in the record industry, phonorecords are
    distributed to wholesalers and retailers with the privilege of
    returning unsold copies for credit or exchange. As a result, the
    number of recordings that have been "permanently" distributed will
    not usually be known until some time - six or seven months on the
    average - after the initial distribution. In recognition of this
    problem, it has become a well-established industry practice, under
    negotiated licenses, for record companies to maintain reasonable
    reserves of the mechanical royalties due the copyright owners,
    against which royalties on the returns can be offset. The Committee
    recognizes that this practice may be consistent with the statutory
    requirements for monthly compulsory license accounting reports, but
    recognizes the possibility that, without proper safeguards, the
    maintenance of such reserves could be manipulated to avoid making
    payments of the full amounts owing to copyright owners. Under these
    circumstances, the regulations prescribed by the Register of
    Copyrights should contain detailed provisions ensuring that the
    ultimate disposition of every phonorecord made under a compulsory
    license is accounted for, and that payment is made for every
    phonorecord "voluntarily and permanently" distributed. In
    particular, the Register should prescribe a point in time when, for
    accounting purposes under section 115, a phonorecord will be
    considered "permanently distributed," and should prescribe the
    situations in which a compulsory licensee is barred from
    maintaining reserves (e.g., situations in which the compulsory
    licensee has frequently failed to make payments in the past.)
      Rate of Royalty. - A large preponderance of the extensive
    testimony presented to the Committee on section 115 was devoted to
    the question of the amount of the statutory royalty rate. An
    extensive review and analysis of the testimony and arguments
    received on this question appear in the 1974 Senate report (S. Rep.
    No. 94-473) at page 71-94.
      While upon initial review it might be assumed that the rate
    established in 1909 would not be reasonable at the present time,
    the committee believes that an increase in the mechanical royalty
    rate must be justified on the basis of existing economic conditions
    and not on the mere passage of 67 years. Following a thorough
    analysis of the problem, the Committee considers that an increase
    of the present two-cent royalty to a rate of 2 3/4  cents (or .6 of
    one cent per minute or fraction of playing time) is justified. This
    rate will be subject to review by the Copyright Royalty Commission,
    as provided by section 801, in 1980 and at 10-year intervals
    thereafter.
      Accounting and Payment of Royalties; Effect of Default. Clause
    (3) of Section 115(c) provides that royalty payments are to be made
    on a monthly basis, in accordance with requirements that the
    Register of Copyrights shall prescribe by regulation. In order to
    increase the protection of copyright proprietors against economic
    harm from companies which might refuse or fail to pay their just
    obligations, compulsory licensees will also be required to make a
    detailed cumulative annual statement of account, certified by a
    Certified Public Accountant.
      A source of criticism with respect to the compulsory licensing
    provisions of the present statute has been the rather ineffective
    sanctions against default by compulsory licensees. Clause (4) of
    section 115(c) corrects this defect by permitting the copyright
    owner to serve written notice on a defaulting licensee, and by
    providing for termination of the compulsory license if the default
    is not remedied within 30 days after notice is given. Termination
    under this clause "renders either the making or the distribution,
    or both, of all phonorecords for which the royalty had not been
    paid, actionable as acts of infringement under section 501 and
    fully subject to the remedies provided by sections 502 through
    506."
-REFTEXT-
                            REFERENCES IN TEXT                        
      The date of enactment of the Digital Performance Right in Sound
    Recordings Act of 1995, referred to in subsec. (c)(3)(J), is the
    date of enactment of Pub. L. 104-39, which was approved Nov. 1,
    1995.
-MISC2-
                                AMENDMENTS                            
      2006 - Subsec. (c)(3)(B). Pub. L. 109-303, Sec. 4(c)(1),
    substituted "this subparagraph and subparagraphs (C) through (E)"
    for "subparagraphs (B) through (F)".
      Subsec. (c)(3)(D). Pub. L. 109-303, Sec. 4(c)(2), inserted "in
    subparagraphs (B) and (C)" after "described" in third sentence.
      Subsec. (c)(3)(E)(i), (ii)(I). Pub. L. 109-303, Sec. 4(c)(3),
    substituted "(C) and (D)" for "(C) or (D)" wherever appearing.
      2004 - Subsec. (c)(3)(A)(ii). Pub. L. 108-419, Sec. 5(d)(1),
    substituted "(E)" for "(F)".
      Subsec. (c)(3)(B). Pub. L. 108-419, Sec. 5(d)(2)(C), which
    directed substitution of "this subparagraph and subparagraphs (C)
    through (E)" for "subparagraphs (C) through (F)", could not be
    executed because "subparagraphs (C) through (F)" does not appear in
    text.
      Pub. L. 108-419, Sec. 5(d)(2)(A), (B), substituted "under this
    section" for "under this paragraph" and inserted "on a nonexclusive
    basis" after "common agents".
      Subsec. (c)(3)(C). Pub. L. 108-419, Sec. 5(d)(3), substituted
    first sentence for former first sentence which read: "During the
    period of June 30, 1996, through December 31, 1996, the Librarian
    of Congress shall cause notice to be published in the Federal
    Register of the initiation of voluntary negotiation proceedings for
    the purpose of determining reasonable terms and rates of royalty
    payments for the activities specified by subparagraph (A) during
    the period beginning January 1, 1998, and ending on the effective
    date of any new terms and rates established pursuant to
    subparagraph (C), (D) or (F), or such other date (regarding digital
    phonorecord deliveries) as the parties may agree.", substituted
    "Copyright Royalty Judges" for "Librarian of Congress" in third
    sentence, and struck out "negotiation" before "proceeding" in last
    sentence.
      Subsec. (c)(3)(D). Pub. L. 108-419, Sec. 5(d)(4), substituted
    first sentence for former first sentence which read: "In the
    absence of license agreements negotiated under subparagraphs (B)
    and (C), upon the filing of a petition in accordance with section
    803(a)(1), the Librarian of Congress shall, pursuant to chapter 8,
    convene a copyright arbitration royalty panel to determine a
    schedule of rates and terms which, subject to subparagraph (E),
    shall be binding on all copyright owners of nondramatic musical
    works and persons entitled to obtain a compulsory license under
    subsection (a)(1) during the period beginning January 1, 1998, and
    ending on the effective date of any new terms and rates established
    pursuant to subparagraph (C), (D) or (F), or such other date
    (regarding digital phonorecord deliveries) as may be determined
    pursuant to subparagraphs (B) and (C).", substituted "Copyright
    Royalty Judges may consider" for "copyright arbitration royalty
    panel may consider" and "described" for "negotiated as provided in
    subparagraphs (B) and (C)" in third sentence, and "Copyright
    Royalty Judges shall also establish" for "Librarian of Congress
    shall also establish" in last sentence.
      Subsec. (c)(3)(E)(i). Pub. L. 108-419, Sec. 5(d)(5)(A),
    substituted "Librarian of Congress and Copyright Royalty Judges"
    for "Librarian of Congress" in first sentence and "(C) or (D) shall
    be given effect as to digital phonorecord deliveries" for "(C), (D)
    or (F) shall be given effect" in second sentence.
      Subsec. (c)(3)(E)(ii)(I). Pub. L. 108-419, Sec. 5(d)(5)(B),
    substituted "(C) or (D)" for "(C), (D) or (F)" in two places.
      Subsec. (c)(3)(F) to (L). Pub. L. 108-419, Sec. 5(d)(6),
    redesignated subpars. (G) to (L) as (F) to (K), respectively, and
    struck out former subpar. (F), which read as follows: "The
    procedures specified in subparagraphs (C) and (D) shall be repeated
    and concluded, in accordance with regulations that the Librarian of
    Congress shall prescribe, in each fifth calendar year after 1997,
    except to the extent that different years for the repeating and
    concluding of such proceedings may be determined in accordance with
    subparagraphs (B) and (C)."
      1997 - Subsec. (c)(3)(D). Pub. L. 105-80, Sec. 4, struck out "and
    publish in the Federal Register" before "a schedule of rates and
    terms".
      Subsec. (c)(3)(E)(i). Pub. L. 105-80, Sec. 12(a)(7)(A),
    substituted "paragraphs (1) and (3) of section 106" for "sections
    106(1) and (3)" in two places.
      Subsec. (c)(3)(E)(ii)(II). Pub. L. 105-80, Sec. 12(a)(7)(A),
    substituted "paragraphs (1) and (3) of section 106" for "sections
    106(1) and 106(3)".
      Subsec. (d). Pub. L. 105-80, Sec. 10, amended directory language
    of Pub. L. 104-39, Sec. 4. See 1995 Amendment note below.
      1995 - Subsec. (a)(1). Pub. L. 104-39, Sec. 4(1), substituted
    "any other person, including those who make phonorecords or digital
    phonorecord deliveries," for "any other person" in first sentence
    and inserted before period at end of second sentence ", including
    by means of a digital phonorecord delivery".
      Subsec. (c)(2). Pub. L. 104-39, Sec. 4(2), inserted "and other
    than as provided in paragraph (3)," after "For this purpose," in
    second sentence.
      Subsec. (c)(3) to (6). Pub. L. 104-39, Sec. 4(3), added par. (3)
    and redesignated former pars. (3) to (5) as (4) to (6),
    respectively.
      Subsec. (d). Pub. L. 104-39, Sec. 4(4), as renumbered by Pub. L.
    105-80, Sec. 10, added subsec. (d).
      1984 - Subsec. (c)(3) to (5). Pub. L. 98-450 added par. (3) and
    redesignated existing pars. (3) and (4) as (4) and (5),
    respectively.
                     EFFECTIVE DATE OF 2006 AMENDMENT                 
      Amendment by Pub. L. 109-303 effective as if included in the
    Copyright Royalty and Distribution Reform Act of 2004, Pub. L. 108-
    419, see section 6 of Pub. L. 109-303, set out as a note under
    section 111 of this title.
                     EFFECTIVE DATE OF 2004 AMENDMENT                 
      Amendment by Pub. L. 108-419 effective 6 months after Nov. 30,
    2004, subject to transition provisions, see section 6 of Pub. L.
    108-419, set out as an Effective Date; Transition Provisions note
    under section 801 of this title.
                     EFFECTIVE DATE OF 1995 AMENDMENT                 
      Amendment by Pub. L. 104-39 effective 3 months after Nov. 1,
    1995, see section 6 of Pub. L. 104-39, set out as a note under
    section 101 of this title.
    PERSONS OPERATING UNDER PREDECESSOR COMPULSORY LICENSING PROVISIONS
      Section 106 of Pub. L. 94-553 provided that: "In any case where,
    before January 1, 1978, a person has lawfully made parts of
    instruments serving to reproduce mechanically a copyrighted work
    under the compulsory license provisions of section 1(e) of title 17
    as it existed on December 31, 1977, such person may continue to
    make and distribute such parts embodying the same mechanical
    reproduction without obtaining a new compulsory license under the
    terms of section 115 of title 17 as amended by the first section of
    this Act [this section]. However, such parts made on or after
    January 1, 1978, constitute phonorecords and are otherwise subject
    to the provisions of said section 115 [this section]."
-FOOTNOTE-
    (!1) So in original. Probably should be "subparagraphs".
-End-
-CITE-
    17 USC Sec. 116                                             01/03/2007
-EXPCITE-
    TITLE 17 - COPYRIGHTS
    CHAPTER 1 - SUBJECT MATTER AND SCOPE OF COPYRIGHT
-HEAD-
    Sec. 116. Negotiated licenses for public performances by means of
      coin-operated phonorecord players
-STATUTE-
      (a) Applicability of Section. - This section applies to any
    nondramatic musical work embodied in a phonorecord.
      (b) Negotiated Licenses. - 
        (1) Authority for negotiations. - Any owners of copyright in
      works to which this section applies and any operators of coin-
      operated phonorecord players may negotiate and agree upon the
      terms and rates of royalty payments for the performance of such
      works and the proportionate division of fees paid among copyright
      owners, and may designate common agents to negotiate, agree to,
      pay, or receive such royalty payments.
        (2) Chapter 8 proceeding. - Parties not subject to such a
      negotiation may have the terms and rates and the division of fees
      described in paragraph (1) determined in a proceeding in
      accordance with the provisions of chapter 8.
      (c) License Agreements Superior to Determinations by Copyright
    Royalty Judges. - License agreements between one or more copyright
    owners and one or more operators of coin-operated phonorecord
    players, which are negotiated in accordance with subsection (b),
    shall be given effect in lieu of any otherwise applicable
    determination by the Copyright Royalty Judges.
      (d) Definitions. - As used in this section, the following terms
    mean the following:
        (1) A "coin-operated phonorecord player" is a machine or device
      that - 
          (A) is employed solely for the performance of nondramatic
        musical works by means of phonorecords upon being activated by
        the insertion of coins, currency, tokens, or other monetary
        units or their equivalent;
          (B) is located in an establishment making no direct or
        indirect charge for admission;
          (C) is accompanied by a list which is comprised of the titles
        of all the musical works available for performance on it, and
        is affixed to the phonorecord player or posted in the
        establishment in a prominent position where it can be readily
        examined by the public; and
          (D) affords a choice of works available for performance and
        permits the choice to be made by the patrons of the
        establishment in which it is located.
        (2) An "operator" is any person who, alone or jointly with
      others - 
          (A) owns a coin-operated phonorecord player;
          (B) has the power to make a coin-operated phonorecord player
        available for placement in an establishment for purposes of
        public performance; or
          (C) has the power to exercise primary control over the
        selection of the musical works made available for public
        performance on a coin-operated phonorecord player.
-SOURCE-
    (Added Pub. L. 100-568, Sec. 4(a)(4), Oct. 31, 1988, 102 Stat.
    2855, Sec. 116A; renumbered Sec. 116 and amended Pub. L. 103-198,
    Sec. 3(b)(1), Dec. 17, 1993, 107 Stat. 2309; Pub. L. 105-80, Sec.
    5, Nov. 13, 1997, 111 Stat. 1531; Pub. L. 108-419, Sec. 5(e), Nov.
    30, 2004, 118 Stat. 2365.)
-MISC1-
                             PRIOR PROVISIONS                         
      A prior section 116, Pub. L. 94-553, title I, Sec. 101, Oct. 19,
    1976, 90 Stat. 2562; Pub. L. 100-568, Sec. 4(b)(1), Oct. 31, 1988,
    102 Stat. 2857, related to scope of exclusive rights in nondramatic
    musical works and compulsory licenses for public performances by
    means of coin-operated phonorecord players, prior to repeal by Pub.
    L. 103-198, Sec. 3(a), Dec. 17, 1993, 107 Stat. 2309.
                                AMENDMENTS                            
      2004 - Subsec. (b)(2). Pub. L. 108-419, Sec. 5(e)(1), amended
    heading and text of par. (2) generally. Prior to amendment, text
    read as follows: "Parties not subject to such a negotiation may
    determine, by arbitration in accordance with the provisions of
    chapter 8, the terms and rates and the division of fees described
    in paragraph (1)."
      Subsec. (c). Pub. L. 108-419, Sec. 5(e)(2), substituted
    "Determinations by Copyright Royalty Judges" for "Copyright
    Arbitration Royalty Panel Determinations" in heading and "the
    Copyright Royalty Judges" for "a copyright arbitration royalty
    panel" in text.
      1997 - Subsec. (b)(2). Pub. L. 105-80, Sec. 5(1), amended par.
    (2) generally. Prior to amendment, par. (2) read as follows:
      "(2) Arbitration. - Parties to such a negotiation, within such
    time as may be specified by the Librarian of Congress by
    regulation, may determine the result of the negotiation by
    arbitration. Such arbitration shall be governed by the provisions
    of title 9, to the extent such title is not inconsistent with this
    section. The parties shall give notice to the Librarian of Congress
    of any determination reached by arbitration and any such
    determination shall, as between the parties to the arbitration, be
    dispositive of the issues to which it relates."
      Subsec. (d). Pub. L. 105-80, Sec. 5(2), added subsec. (d).
      1993 - Pub. L. 103-198, Sec. 3(b)(1)(A), renumbered section 116A
    of this title as this section.
      Subsec. (b). Pub. L. 103-198, Sec. 3(b)(1)(B), (C), redesignated
    subsec. (c) as (b), substituted "Librarian of Congress" for
    "Copyright Royalty Tribunal" in two places in par. (2), and struck
    out former subsec. (b) which related to limitation on exclusive
    right if licenses not negotiated.
      Subsec. (c). Pub. L. 103-198, Sec. 3(b)(1)(B), (D), redesignated
    subsec. (d) as (c), in heading substituted "Arbitration Royalty
    Panel" for "Royalty Tribunal", and in text substituted "subsection
    (b)" for "subsection (c)" and "a copyright arbitration royalty
    panel" for "the Copyright Royalty Tribunal".
      Subsecs. (d) to (g). Pub. L. 103-198, Sec. 3(b)(1)(B), (E),
    redesignated subsec. (d) as (c) and struck out subsecs. (e) to (g)
    which provided, in subsec. (e), for a schedule for negotiation of
    licenses, in subsec. (f), for a suspension of various ratemaking
    activities by the Copyright Royalty Tribunal, and in subsec. (g),
    for transition provisions and retention of Copyright Royalty
    Tribunal jurisdiction.
                     EFFECTIVE DATE OF 2004 AMENDMENT                 
      Amendment by Pub. L. 108-419 effective 6 months after Nov. 30,
    2004, subject to transition provisions, see section 6 of Pub. L.
    108-419, set out as an Effective Date; Transition Provisions note
    under section 801 of this title.
                              EFFECTIVE DATE                          
      Section effective Mar. 1, 1989, with any cause of action arising
    under this title before such date being governed by provisions as
    in effect when cause of action arose, see section 13 of Pub. L. 100-
    568, set out as an Effective Date of 1988 Amendment note under
    section 101 of this title.
-End-
-CITE-
    17 USC Sec. 116A                                            01/03/2007
-EXPCITE-
    TITLE 17 - COPYRIGHTS
    CHAPTER 1 - SUBJECT MATTER AND SCOPE OF COPYRIGHT
-HEAD-
    [Sec. 116A. Renumbered Sec. 116]
-STATUTE-
-End-
-CITE-
    17 USC Sec. 117                                             01/03/2007
-EXPCITE-
    TITLE 17 - COPYRIGHTS
    CHAPTER 1 - SUBJECT MATTER AND SCOPE OF COPYRIGHT
-HEAD-
    Sec. 117. Limitations on exclusive rights: Computer programs
-STATUTE-
      (a) Making of Additional Copy or Adaptation by Owner of Copy. -
    Notwithstanding the provisions of section 106, it is not an
    infringement for the owner of a copy of a computer program to make
    or authorize the making of another copy or adaptation of that
    computer program provided:
        (1) that such a new copy or adaptation is created as an
      essential step in the utilization of the computer program in
      conjunction with a machine and that it is used in no other
      manner, or
        (2) that such new copy or adaptation is for archival purposes
      only and that all archival copies are destroyed in the event that
      continued possession of the computer program should cease to be
      rightful.
      (b) Lease, Sale, or Other Transfer of Additional Copy or
    Adaptation. - Any exact copies prepared in accordance with the
    provisions of this section may be leased, sold, or otherwise
    transferred, along with the copy from which such copies were
    prepared, only as part of the lease, sale, or other transfer of all
    rights in the program. Adaptations so prepared may be transferred
    only with the authorization of the copyright owner.
      (c) Machine Maintenance or Repair. - Notwithstanding the
    provisions of section 106, it is not an infringement for the owner
    or lessee of a machine to make or authorize the making of a copy of
    a computer program if such copy is made solely by virtue of the
    activation of a machine that lawfully contains an authorized copy
    of the computer program, for purposes only of maintenance or repair
    of that machine, if - 
        (1) such new copy is used in no other manner and is destroyed
      immediately after the maintenance or repair is completed; and
        (2) with respect to any computer program or part thereof that
      is not necessary for that machine to be activated, such program
      or part thereof is not accessed or used other than to make such
      new copy by virtue of the activation of the machine.
      (d) Definitions. - For purposes of this section - 
        (1) the "maintenance" of a machine is the servicing of the
      machine in order to make it work in accordance with its original
      specifications and any changes to those specifications authorized
      for that machine; and
        (2) the "repair" of a machine is the restoring of the machine
      to the state of working in accordance with its original
      specifications and any changes to those specifications authorized
      for that machine.
-SOURCE-
    (Pub. L. 94-553, title I, Sec. 101, Oct. 19, 1976, 90 Stat. 2565;
    Pub. L. 96-517, Sec. 10(b), Dec. 12, 1980, 94 Stat. 3028; Pub. L.
    105-304, title III, Sec. 302, Oct. 28, 1998, 112 Stat. 2887.)
-MISC1-
                       HISTORICAL AND REVISION NOTES                   
                         HOUSE REPORT NO. 94-1476                     
      As the program for general revision of the copyright law has
    evolved, it has become increasingly apparent that in one major area
    the problems are not sufficiently developed for a definitive
    legislative solution. This is the area of computer uses of
    copyrighted works: the use of a work "in conjunction with automatic
    systems capable of storing, processing, retrieving, or transferring
    information." The Commission on New Technological Uses is, among
    other things, now engaged in making a thorough study of the
    emerging patterns in this field and it will, on the basis of its
    findings, recommend definitive copyright provisions to deal with
    the situation.
      Since it would be premature to change existing law on computer
    uses at present, the purpose of section 117 is to preserve the
    status quo. It is intended neither to cut off any rights that may
    now exist, nor to create new rights that might be denied under the
    Act of 1909 or under common law principles currently applicable.
      The provision deals only with the exclusive rights of a copyright
    owner with respect to computer uses, that is, the bundle of rights
    specified for other types of uses in section 106 and qualified in
    sections 107 through 116 and 118. With respect to the copyright-
    ability of computer programs, the ownership of copyrights in them,
    the term of protection, and the formal requirements of the
    remainder of the bill, the new statute would apply.
      Under section 117, an action for infringement of a copyrighted
    work by means of a computer would necessarily be a federal action
    brought under the new title 17. The court, in deciding the scope of
    exclusive rights in the computer area, would first need to
    determine the applicable law, whether State statutory or common law
    or the Act of 1909. Having determined what law was applicable, its
    decision would depend upon its interpretation of what that law was
    on the point on the day before the effective date of the new
    statute.
                                AMENDMENTS                            
      1998 - Pub. L. 105-304 designated existing provisions as subsecs.
    (a) and (b), inserted headings, and added subsecs. (c) and (d).
      1980 - Pub. L. 96-517 substituted provision respecting
    limitations on exclusive rights in connection with computer
    programs for prior provision enunciating scope of exclusive rights
    and use of the work in conjunction with computers and similar
    information systems and declaring owner of copyright in a work
    without any greater or lesser rights with respect to the use of the
    work in conjunction with automatic systems capable of storing,
    processing, retrieving, or transferring information, or in
    conjunction with any similar device, machine, or process, than
    those afforded to works under the law, whether this title or the
    common law or statutes of a State, in effect on Dec. 31, 1977, as
    held applicable and construed by the court in an action brought
    under this title.
-End-
-CITE-
    17 USC Sec. 118                                             01/03/2007
-EXPCITE-
    TITLE 17 - COPYRIGHTS
    CHAPTER 1 - SUBJECT MATTER AND SCOPE OF COPYRIGHT
-HEAD-
    Sec. 118. Scope of exclusive rights: Use of certain works in
      connection with noncommercial broadcasting
-STATUTE-
      (a) The exclusive rights provided by section 106 shall, with
    respect to the works specified by subsection (b) and the activities
    specified by subsection (d),(!1) be subject to the conditions and
    limitations prescribed by this section.
      (b) Notwithstanding any provision of the antitrust laws, any
    owners of copyright in published nondramatic musical works and
    published pictorial, graphic, and sculptural works and any public
    broadcasting entities, respectively, may negotiate and agree upon
    the terms and rates of royalty payments and the proportionate
    division of fees paid among various copyright owners, and may
    designate common agents to negotiate, agree to, pay, or receive
    payments.
        (1) Any owner of copyright in a work specified in this
      subsection or any public broadcasting entity may submit to the
      Copyright Royalty Judges proposed licenses covering such
      activities with respect to such works.
        (2) License agreements voluntarily negotiated at any time
      between one or more copyright owners and one or more public
      broadcasting entities shall be given effect in lieu of any
      determination by the Librarian of Congress or the Copyright
      Royalty Judges, if copies of such agreements are filed with the
      Copyright Royalty Judges within 30 days of execution in
      accordance with regulations that the Copyright Royalty Judges
      shall issue.
        (3) Voluntary negotiation proceedings initiated pursuant to a
      petition filed under section 804(a) for the purpose of
      determining a schedule of terms and rates of royalty payments by
      public broadcasting entities to owners of copyright in works
      specified by this subsection and the proportionate division of
      fees paid among various copyright owners shall cover the 5-year
      period beginning on January 1 of the second year following the
      year in which the petition is filed. The parties to each
      negotiation proceeding shall bear their own costs.
        (4) In the absence of license agreements negotiated under
      paragraph (2) or (3), the Copyright Royalty Judges shall,
      pursuant to chapter 8, conduct a proceeding to determine and
      publish in the Federal Register a schedule of rates and terms
      which, subject to paragraph (2), shall be binding on all owners
      of copyright in works specified by this subsection and public
      broadcasting entities, regardless of whether such copyright
      owners have submitted proposals to the Copyright Royalty Judges.
      In establishing such rates and terms the Copyright Royalty Judges
      may consider the rates for comparable circumstances under
      voluntary license agreements negotiated as provided in paragraph
      (2) or (3). The Copyright Royalty Judges shall also establish
      requirements by which copyright owners may receive reasonable
      notice of the use of their works under this section, and under
      which records of such use shall be kept by public broadcasting
      entities.
      (c) Subject to the terms of any voluntary license agreements that
    have been negotiated as provided by subsection (b)(2) or (3), a
    public broadcasting entity may, upon compliance with the provisions
    of this section, including the rates and terms established by the
    Copyright Royalty Judges under subsection (b)(4), engage in the
    following activities with respect to published nondramatic musical
    works and published pictorial, graphic, and sculptural works:
        (1) performance or display of a work by or in the course of a
      transmission made by a noncommercial educational broadcast
      station referred to in subsection (f); and
        (2) production of a transmission program, reproduction of
      copies or phonorecords of such a transmission program, and
      distribution of such copies or phonorecords, where such
      production, reproduction, or distribution is made by a nonprofit
      institution or organization solely for the purpose of
      transmissions specified in paragraph (1); and
        (3) the making of reproductions by a governmental body or a
      nonprofit institution of a transmission program simultaneously
      with its transmission as specified in paragraph (1), and the
      performance or display of the contents of such program under the
      conditions specified by paragraph (1) of section 110, but only if
      the reproductions are used for performances or displays for a
      period of no more than seven days from the date of the
      transmission specified in paragraph (1), and are destroyed before
      or at the end of such period. No person supplying, in accordance
      with paragraph (2), a reproduction of a transmission program to
      governmental bodies or nonprofit institutions under this
      paragraph shall have any liability as a result of failure of such
      body or institution to destroy such reproduction: Provided, That
      it shall have notified such body or institution of the
      requirement for such destruction pursuant to this paragraph: And
      provided further, That if such body or institution itself fails
      to destroy such reproduction it shall be deemed to have
      infringed.
      (d) Except as expressly provided in this subsection, this section
    shall have no applicability to works other than those specified in
    subsection (b). Owners of copyright in nondramatic literary works
    and public broadcasting entities may, during the course of
    voluntary negotiations, agree among themselves, respectively, as to
    the terms and rates of royalty payments without liability under the
    antitrust laws. Any such terms and rates of royalty payments shall
    be effective upon filing with the Copyright Royalty Judges, in
    accordance with regulations that the Copyright Royalty Judges shall
    prescribe as provided in section 803(b)(6).
      (e) Nothing in this section shall be construed to permit, beyond
    the limits of fair use as provided by section 107, the unauthorized
    dramatization of a nondramatic musical work, the production of a
    transmission program drawn to any substantial extent from a
    published compilation of pictorial, graphic, or sculptural works,
    or the unauthorized use of any portion of an audiovisual work.
      (f) As used in this section, the term "public broadcasting
    entity" means a noncommercial educational broadcast station as
    defined in section 397 of title 47 and any nonprofit institution or
    organization engaged in the activities described in paragraph (2)
    of subsection (c).
-SOURCE-
    (Pub. L. 94-553, title I, Sec. 101, Oct. 19, 1976, 90 Stat. 2565;
    Pub. L. 103-198, Sec. 4, Dec. 17, 1993, 107 Stat. 2309; Pub. L. 106-
    44, Sec. 1(g)(3), Aug. 5, 1999, 113 Stat. 222; Pub. L. 107-273,
    div. C, title III, Sec. 13210(7), Nov. 2, 2002, 116 Stat. 1909;
    Pub. L. 108-419, Sec. 5(f), Nov. 30, 2004, 118 Stat. 2365; Pub. L.
    109-303, Sec. 4(d), Oct. 6, 2006, 120 Stat. 1482.)
-MISC1-
                       HISTORICAL AND REVISION NOTES                   
                         HOUSE REPORT NO. 94-1476                     
      General Background. During its consideration of revision
    legislation in 1975, the Senate Judiciary Committee adopted an
    amendment offered by Senator Charles McC. Mathias. The amendment,
    now section 118 of the Senate bill [this section], grants to public
    broadcasting a compulsory license for use of nondramatic literary
    and musical works, as well as pictorial, graphic, and sculptural
    works, subject to payment of reasonable royalty fees to be set by
    the Copyright Royalty Tribunal established by that bill. The
    Mathias amendment requires that public broadcasters, at periodic
    intervals, file a notice with the Copyright Office containing
    information required by the Register of Copyrights and deposit a
    statement of account and the total royalty fees for the period
    covered by the statement. In July of each year all persons having a
    claim to such fees are to file their claims with the Register of
    Copyrights. If no controversy exists, the Register would distribute
    the royalties to the various copyright owners and their agents
    after deducting reasonable administrative costs; controversies are
    to be settled by the Tribunal.
      On July 10, 1975, the House Subcommittee heard testimony on the
    Mathias amendment from representatives of public broadcasters,
    authors, publishers, and music performing rights societies. The
    public broadcasters pointed to Congressional concern for the
    development of their activities as evidenced by the Public
    Broadcasting Act [47 U.S.C. 390 et seq.]. They urged that a
    compulsory license was essential to assure public broadcasting
    broad access to copyrighted materials at reasonable royalties and
    without administratively cumbersome and costly "clearance" problems
    that would impair the vitality of their operations. The opponents
    of the amendment argued that the nature of public broadcasting has
    changed significantly in the past decade, to the extent that it now
    competes with commercial broadcasting as a national entertainment
    and cultural medium. They asserted that the performing rights
    society arrangements under which copyrighted music is licensed for
    performance removed any problem in clearing music for broadcasting,
    and that voluntary agreements could adequately resolve the
    copyright problems feared by public broadcasters, at less expense
    and burden than the compulsory license, for synchronization and
    literary rights. The authors of literary works stressed that a
    compulsory licensing system would deny them the fundamental right
    to control the use of their works and protect their reputation in a
    major communications medium.
      General Policy Considerations. The Committee is cognizant of the
    intent of Congress, in enacting the Public Broadcasting Act on
    November 7, 1967 [47 U.S.C. 390 et seq.], that encouragement and
    support of noncommercial broadcasting is in the public interest. It
    is also aware that public broadcasting may encounter problems not
    confronted by commercial broadcasting enterprises, due to such
    factors as the special nature of programming, repeated use of
    programs, and, of course, limited financial resources. Thus, the
    Committee determined that the nature of public broadcasting does
    warrant special treatment in certain areas. However, the Committee
    did not feel that the broad compulsory license provided in the
    Senate bill is necessary to the continued successful operation of
    public broadcasting. In addition, the Committee believes that the
    system provided in the Senate bill for the deposit of royalty fees
    with the Copyright Office for distribution to claimants, and the
    resolution of disputes over such distribution by a statutory
    tribunal, can be replaced by payments directly between the parties,
    without the intervention of government machinery and its attendant
    administrative costs.
      In general, the Committee amended the public broadcasting
    provisions of the Senate bill toward attainment of the objective
    clearly stated in the Report of the Senate Judiciary Committee,
    namely, that copyright owners and public broadcasters be encouraged
    to reach voluntary private agreements.
      Procedures. Not later than thirty days following the publication
    by the President of the notice announcing the initial appointments
    to the Copyright Royalty Commission (specified in Chapter 8 [Sec.
    801 et seq. of this title]), the Chairman of the Commission is to
    publish notice in the Federal Register of the initiation of
    proceedings to determine "reasonable terms and rates" for certain
    uses of published nondramatic musical works and published
    pictorial, graphic and sculptural works, during a period ending on
    December 31, 1982.
      Copyright owners and public broadcasting entities that do not
    reach voluntary agreement are bound by the terms and rates
    established by the Commission, which are to be published in the
    Federal Register within six months of the notice of initiation of
    proceedings. During the period between the effective date of the
    Act [Jan. 1, 1978] and the publication of the rates and terms, the
    Committee has preserved the status quo by providing, in section
    118(b)(4), that the Act does not afford to copyright owners or
    public broadcasting entities any greater or lesser rights with
    respect to the relevant uses of nondramatic musical works and
    pictorial, graphic, and sculptural works than those afforded under
    the law in effect on December 31, 1977.
      License agreements that have been voluntarily negotiated
    supersede, as between the parties to the agreement, the terms and
    rates established by the Commission, provided that copies of the
    agreements are properly filed with the Copyright Office within 30
    days of execution. Under clause (2) of section 118(b), the
    agreements may be negotiated "at any time" - whether before,
    during, or after determinations by the Commission.
      Under section 118(c), the procedures for the Commission's
    establishing such rates and terms are to be repeated in the last
    half of 1982 and every five years thereafter.
      Establishment of Reasonable Terms and Rates. In establishing
    reasonable terms and rates for public broadcasting use of the
    specified works, the Commission, under clause (b)(1) of section 118
    is to consider proposals timely submitted to it, as well as "any
    other relevant information", including that put forward for its
    consideration "by any interested party."
      The Committee does not intend that owners of copyrighted material
    be required to subsidize public broadcasting. It is intended that
    the Commission assure a fair return to copyright owners without
    unfairly burdening public broadcasters. Section 118(b)(3) provides
    that "the Commission may consider the rates for comparable
    circumstances under voluntary license agreements." The Commission
    is also expected to consider both the general public interest in
    encouraging the growth and development of public broadcasting, and
    the "promotion of science and the useful arts" through the
    encouragement of musical and artistic creation.
      The Committee anticipates that the "terms" established by the
    Commission shall include provisions as to acceptable methods of
    payment of royalties by public broadcasting entities to copyright
    owners. For example, where the whereabouts of the copyright owner
    may not be readily known, the terms should specify the nature of
    the obligation of the public broadcasting entity to locate the
    owner, or to set aside or otherwise assure payment of appropriate
    royalties, should he or she appear and make a claim. Section
    118(b)(3) requires the Commission "to establish requirements by
    which copyright owners may receive reasonable notice of the use of
    their works." The Committee intends that these requirements shall
    not impose undue hardships on public broadcasting entities and, in
    the above illustration, shall provide for the specific termination
    of any period during which the public broadcasting entity is
    required to set aside payments. It is expected that, in some cases,
    especially in the area of pictorial, graphic, and sculptural works,
    the whereabouts of the owners of copyright may not be known and
    they may never appear to claim payment of royalties.
      The Commission is also to establish record keeping requirements
    for public broadcasting entities in order to facilitate the
    identification, calculation, allocation and payment of claims and
    royalties.
      Works Affected. Under sections 118(b) and (e) of the Committee's
    amendment, the establishment of rates and terms by the Copyright
    Royalty Commission pertains only to the use of published
    nondramatic musical works, and published pictorial, graphic, and
    sculptural works. As under the Senate bill; rights in plays,
    operas, ballet and other stage presentations, motion pictures, and
    other audiovisual works are not affected.
      Section 118(f) is intended to make clear that this section does
    not permit unauthorized use, beyond the limits of section 107, of
    individual frames from a filmstrip or any other portion of any
    audiovisual work. Additionally, the application of this section to
    pictorial, graphic, and sculptural works does not extend to the
    production of transmission programs drawn to any substantial extent
    from a compilation of such works.
      The Committee also concluded that the performance of nondramatic
    literary works should not be subject to Commission determination.
    It was particularly concerned that a compulsory license for
    literary works would result in loss of control by authors over the
    use of their work in violation of basic principles of artistic and
    creative freedom. It is recognized that copyright not only provides
    compensation to authors, but also protection as to how and where
    their works are used. The Committee was assured by representatives
    of authors and publishers that licensing arrangements for readings
    from their books, poems, and other works on public broadcasting
    programs for reasonable compensation and under reasonable
    safeguards for authors' rights could be worked out in private
    negotiation. The Committee strongly urges the parties to work
    toward mutually acceptable licenses; to facilitate their
    negotiations and aid in the possible establishment of clearance
    mechanisms and rates, the Committee's amendment provides the
    parties, in section 118(e)(1), with an appropriately limited
    exemption from the antitrust laws [15 U.S.C. 1 et seq.].
      The Committee has also provided, in paragraph (2) of clause (e),
    that on January 3, 1980, the Register of Copyrights, after
    consultation with the interested parties, shall submit a report to
    Congress on the extent to which voluntary licensing arrangements
    have been reached with respect to public broadcast use of
    nondramatic literary works, and present legislative or other
    recommendations, if warranted.
      The use of copyrighted sound recordings in educational television
    and radio programs distributed by or through public broadcasting
    entities is governed by section 114 and is discussed in connection
    with that section.
      Activities Affected. Section 118(d) specifies the activities
    which may be engaged in by public broadcasting entities under terms
    and rates established by the Commission. These include the
    performance or display of published nondramatic musical works, and
    of published pictorial, graphic, and sculptural works, in the
    course of transmissions by noncommercial educational broadcast
    stations; and the production, reproduction, and distribution of
    transmission programs including such works by nonprofit
    organizations for the purpose of such transmissions. It is the
    intent of the Committee that "interconnection" activities serving
    as a technical adjunct to such transmissions, such as the use of
    satellites or microwave equipment, be included within the specified
    activities.
      Paragraph (3) of clause (d) also includes the reproduction,
    simultaneously with transmission, of public broadcasting programs
    by governmental bodies or nonprofit institutions, and the
    performance or display of the contents of the reproduction under
    the conditions of section 110(1). However, the reproduction so made
    must be destroyed at the end of seven days from the transmission.
      This limited provision for unauthorized simultaneous or off-the-
    air reproduction is limited to nondramatic musical works and
    pictorial, graphic and sculptural works included in public
    broadcasting transmissions. It does not extend to other works
    included in the transmissions, or to the entire transmission
    program.
      It is the intent of the Committee that schools be permitted to
    engage in off-the-air reproduction to the extent and under the
    conditions provided in [section] 118(d)(3); however, in the event a
    public broadcasting station or producer makes the reproduction and
    distributes a copy to the school, the station or producer will not
    be held liable for the school's failure to destroy the
    reproduction, provided it has given notice of the requirement of
    destruction. In such a case the school itself, although it did not
    engage in the act of reproduction, is deemed an infringer fully
    subject to the remedies provided in Chapter 5 of the Act [Sec. 501
    et seq. of this title]. The establishment of standards for adequate
    notice under this provision should be considered by the Commission.
      Section 118(f) makes it clear that the rights of performance and
    other activities specified in subsection (d) do not extend to the
    unauthorized dramatization of a nondramatic musical work.
-REFTEXT-
                            REFERENCES IN TEXT                        
      Subsection (d), referred to in subsec. (a), was redesignated as
    subsection (c) of this section by Pub. L. 108-419, Sec. 5(f)(2),
    Nov. 30, 2004, 118 Stat. 2366.
-MISC2-
                                AMENDMENTS                            
      2006 - Subsec. (b)(3). Pub. L. 109-303, Sec. 4(d)(1), substituted
    "owners of copyright in works" for "copyright owners in works".
      Subsec. (c). Pub. L. 109-303, Sec. 4(d)(2), substituted
    "established by the Copyright Royalty Judges under subsection
    (b)(4), engage" for "established by the Copyright Royalty Judges
    under subsection (b)(4), to the extent that they were accepted by
    the Librarian of Congress, engage" in introductory provisions and
    "(f)" for "(g)" in par. (1).
      2004 - Subsec. (b)(1). Pub. L. 108-419, Sec. 5(f)(1)(A),
    substituted "Copyright Royalty Judges" for "Librarian of Congress"
    in first sentence and struck out at end "The Librarian of Congress
    shall proceed on the basis of the proposals submitted as well as
    any other relevant information. The Librarian of Congress shall
    permit any interested party to submit information relevant to such
    proceedings."
      Subsec. (b)(2). Pub. L. 108-419, Sec. 5(f)(1)(B), substituted
    "Librarian of Congress or the Copyright Royalty Judges, if copies
    of such agreements are filed with the Copyright Royalty Judges
    within 30 days of execution in accordance with regulations that the
    Copyright Royalty Judges shall issue" for "Librarian of Congress:
    Provided, That copies of such agreements are filed in the Copyright
    Office within thirty days of execution in accordance with
    regulations that the Register of Copyrights shall prescribe".
      Subsec. (b)(3), (4). Pub. L. 108-419, Sec. 5(f)(1)(C), added
    pars. (3) and (4), redesignated second and third sentences of
    former par. (3) as second and third sentences of par. (4),
    substituted "Copyright Royalty Judges" for "copyright arbitration
    royalty panel" and "paragraph (2) or (3)" for "paragraph (2)" in
    second sentence of par. (4), substituted "Copyright Royalty Judges"
    for "Librarian of Congress" in last sentence of par. (4), and
    struck out "(3) In the absence of license agreements negotiated
    under paragraph (2), the Librarian of Congress shall, pursuant to
    chapter 8, convene a copyright arbitration royalty panel to
    determine and publish in the Federal Register a schedule of rates
    and terms which, subject to paragraph (2), shall be binding on all
    owners of copyright in works specified by this subsection and
    public broadcasting entities, regardless of whether such copyright
    owners have submitted proposals to the Librarian of Congress."
      Subsec. (c). Pub. L. 108-419, Sec. 5(f)(3)(C), which directed
    substitution of "the Copyright Royalty Judges under subsection
    (b)(3), to the extent that they were accepted by the Librarian of
    Congress" for "a copyright arbitration royalty panel under
    subsection (b)(3)" in introductory provisions, was executed before
    the amendment by Pub. L. 108-419, Sec. 5(f)(3)(B), to reflect the
    probable intent of Congress. See below.
      Pub. L. 108-419, Sec. 5(f)(3)(B), substituted "(b)(4)" for
    "(b)(3)" in introductory provisions. See above.
      Pub. L. 108-419, Sec. 5(f)(3)(A), substituted "(b)(2) or (3)" for
    "(b)(2)" in introductory provisions.
      Pub. L. 108-419, Sec. 5(f)(2), redesignated subsec. (d) as (c)
    and struck out former subsec. (c) which read as follows: "The
    initial procedure specified in subsection (b) shall be repeated and
    concluded between June 30 and December 31, 1997, and at five-year
    intervals thereafter, in accordance with regulations that the
    Librarian of Congress shall prescribe."
      Subsec. (d). Pub. L. 108-419, Sec. 5(f)(2), (4), redesignated
    subsec. (e) as (d) and substituted "with the Copyright Royalty
    Judges" for "in the Copyright Office" and "Copyright Royalty Judges
    shall prescribe as provided in section 803(b)(6)" for "Register of
    Copyrights shall prescribe". Former subsec. (d) redesignated (c).
      Subsec. (e). Pub. L. 108-419, Sec. 5(f)(2), redesignated subsec.
    (f) as (e). Former subsec. (e) redesignated (d).
      Subsec. (f). Pub. L. 108-419, Sec. 5(f)(2), (5), redesignated
    subsec. (g) as (f) and substituted "(c)" for "(d)". Former subsec.
    (f) redesignated (e).
      Subsec. (g). Pub. L. 108-419, Sec. 5(f)(2), redesignated subsec.
    (g) as (f).
      2002 - Subsec. (b)(1). Pub. L. 107-273 struck out "to it" after
    "proposals submitted" in second sentence.
      1999 - Subsec. (e). Pub. L. 106-44 struck out "(1)" before
    "Owners of" and struck out par. (2) which read as follows: "On
    January 3, 1980, the Register of Copyrights, after consulting with
    authors and other owners of copyright in nondramatic literary works
    and their representatives, and with public broadcasting entities
    and their representatives, shall submit to the Congress a report
    setting forth the extent to which voluntary licensing arrangements
    have been reached with respect to the use of nondramatic literary
    works by such broadcast stations. The report should also describe
    any problems that may have arisen, and present legislative or other
    recommendations, if warranted."
      1993 - Subsec. (b). Pub. L. 103-198, Sec. 4(1)(A), (B), struck
    out first two sentences which read as follows: "Not later than
    thirty days after the Copyright Royalty Tribunal has been
    constituted in accordance with section 802, the Chairman of the
    Tribunal shall cause notice to be published in the Federal Register
    of the initiation of proceedings for the purpose of determining
    reasonable terms and rates of royalty payments for the activities
    specified by subsection (d) with respect to published nondramatic
    musical works and published pictorial, graphic, and sculptural
    works during a period beginning as provided in clause (3) of this
    subsection and ending on December 31, 1982. Copyright owners and
    public broadcasting entities shall negotiate in good faith and
    cooperate fully with the Tribunal in an effort to reach reasonable
    and expeditious results.", and in third sentence substituted
    "published nondramatic musical works and published pictorial,
    graphic, and sculptural works" for "works specified by this
    subsection".
      Subsec. (b)(1). Pub. L. 103-198, Sec. 4(1)(C), struck out ",
    within one hundred and twenty days after publication of the notice
    specified in this subsection," after "broadcasting entity may" and
    substituted "Librarian of Congress" for "Copyright Royalty
    Tribunal" wherever appearing.
      Subsec. (b)(2). Pub. L. 103-198, Sec. 4(1)(D), substituted
    "Librarian of Congress" for "Tribunal".
      Subsec. (b)(3). Pub. L. 103-198, Sec. 4(1)(E)(ii), (iii), in
    second sentence, substituted "copyright arbitration royalty panel"
    for "Copyright Royalty Tribunal" and "paragraph (2)" for "clause
    (2) of this subsection", and in last sentence, substituted
    "Librarian of Congress" for "Copyright Royalty Tribunal".
      Pub. L. 103-198, Sec. 4(1)(E)(i), substituted first sentence for
    former first sentence which read as follows: "Within six months,
    but not earlier than one hundred and twenty days, from the date of
    publication of the notice specified in this subsection the
    Copyright Royalty Tribunal shall make a determination and publish
    in the Federal Register a schedule of rates and terms which,
    subject to clause (2) of this subsection, shall be binding on all
    owners of copyright in works specified by this subsection and
    public broadcasting entities, regardless of whether or not such
    copyright owners and public broadcasting entities have submitted
    proposals to the Tribunal."
      Subsec. (b)(4). Pub. L. 103-198, Sec. 4(1)(F), struck out par.
    (4) which read as follows: "With respect to the period beginning on
    the effective date of this title and ending on the date of
    publication of such rates and terms, this title shall not afford to
    owners of copyright or public broadcasting entities any greater or
    lesser rights with respect to the activities specified in
    subsection (d) as applied to works specified in this subsection
    than those afforded under the law in effect on December 31, 1977,
    as held applicable and construed by a court in an action brought
    under this title."
      Subsec. (c). Pub. L. 103-198, Sec. 4(2), substituted "1997" for
    "1982" and "Librarian of Congress" for "Copyright Royalty
    Tribunal".
      Subsec. (d). Pub. L. 103-198, Sec. 4(3), in introductory
    provisions, struck out "to the transitional provisions of
    subsection (b)(4), and" after "Subject" and substituted "a
    copyright arbitration royalty panel" for "the Copyright Royalty
    Tribunal", and in pars. (2) and (3), substituted "paragraph" for
    "clause" wherever appearing.
      Subsec. (g). Pub. L. 103-198, Sec. 4(4), substituted "paragraph"
    for "clause".
                     EFFECTIVE DATE OF 2006 AMENDMENT                 
      Amendment by Pub. L. 109-303 effective as if included in the
    Copyright Royalty and Distribution Reform Act of 2004, Pub. L. 108-
    419, see section 6 of Pub. L. 109-303, set out as a note under
    section 111 of this title.
                     EFFECTIVE DATE OF 2004 AMENDMENT                 
      Amendment by Pub. L. 108-419 effective 6 months after Nov. 30,
    2004, subject to transition provisions, see section 6 of Pub. L.
    108-419, set out as an Effective Date; Transition Provisions note
    under section 801 of this title.
                              EFFECTIVE DATE                          
      Section effective Oct. 19, 1976, see section 102 of Pub. L. 94-
    553, set out as a note preceding section 101 of this title.
-FOOTNOTE-
    (!1) See References in Text note below.
-End-
-CITE-
    17 USC Sec. 119                                             01/03/2007
-EXPCITE-
    TITLE 17 - COPYRIGHTS
    CHAPTER 1 - SUBJECT MATTER AND SCOPE OF COPYRIGHT
-HEAD-
    Sec. 119. Limitations on exclusive rights: Secondary transmissions
      of superstations and network stations for private home viewing
-STATUTE-
      (a) Secondary Transmissions by Satellite Carriers. - 
        (1) Superstations. - Subject to the provisions of paragraphs
      (5), (6), and (8) of this subsection and section 114(d),
      secondary transmissions of a performance or display of a work
      embodied in a primary transmission made by a superstation shall
      be subject to statutory licensing under this section if the
      secondary transmission is made by a satellite carrier to the
      public for private home viewing or for viewing in a commercial
      establishment, with regard to secondary transmissions the
      satellite carrier is in compliance with the rules, regulations,
      or authorizations of the Federal Communications Commission
      governing the carriage of television broadcast station signals,
      and the carrier makes a direct or indirect charge for each
      retransmission service to each subscriber receiving the secondary
      transmission or to a distributor that has contracted with the
      carrier for direct or indirect delivery of the secondary
      transmission to the public for private home viewing or for
      viewing in a commercial establishment.
        (2) Network stations. - 
          (A) In general. - Subject to the provisions of subparagraphs
        (B) and (C) of this paragraph and paragraphs (5), (6), (7), and
        (8) of this subsection and section 114(d), secondary
        transmissions of a performance or display of a work embodied in
        a primary transmission made by a network station shall be
        subject to statutory licensing under this section if the
        secondary transmission is made by a satellite carrier to the
        public for private home viewing, with regard to secondary
        transmissions the satellite carrier is in compliance with the
        rules, regulations, or authorizations of the Federal
        Communications Commission governing the carriage of television
        broadcast station signals, and the carrier makes a direct or
        indirect charge for such retransmission service to each
        subscriber receiving the secondary transmission.
          (B) Secondary transmissions to unserved households. - 
            (i) In general. - The statutory license provided for in
          subparagraph (A) shall be limited to secondary transmissions
          of the signals of no more than two network stations in a
          single day for each television network to persons who reside
          in unserved households. The limitation in this clause shall
          not apply to secondary transmissions under paragraph (3).
            (ii) Accurate determinations of eligibility. - 
              (I) Accurate predictive model. - In determining
            presumptively whether a person resides in an unserved
            household under subsection (d)(10)(A), a court shall rely
            on the Individual Location Longley-Rice model set forth by
            the Federal Communications Commission in Docket No. 98-201,
            as that model may be amended by the Commission over time
            under section 339(c)(3) of the Communications Act of 1934
            to increase the accuracy of that model.
              (II) Accurate measurements. - For purposes of site
            measurements to determine whether a person resides in an
            unserved household under subsection (d)(10)(A), a court
            shall rely on section 339(c)(4) of the Communications Act
            of 1934.
            (iii) C-band exemption to unserved households. - 
              (I) In general. - The limitations of clause (i) shall not
            apply to any secondary transmissions by C-band services of
            network stations that a subscriber to C-band service
            received before any termination of such secondary
            transmissions before October 31, 1999.
              (II) Definition. - In this clause the term "C-band
            service" means a service that is licensed by the Federal
            Communications Commission and operates in the Fixed
            Satellite Service under part 25 of title 47 of the Code of
            Federal Regulations.
          (C) Exceptions. - 
            (i) States with single full-power network station. - In a
          State in which there is licensed by the Federal
          Communications Commission a single full-power station that
          was a network station on January 1, 1995, the statutory
          license provided for in subparagraph (A) shall apply to the
          secondary transmission by a satellite carrier of the primary
          transmission of that station to any subscriber in a community
          that is located within that State and that is not within the
          first 50 television markets as listed in the regulations of
          the Commission as in effect on such date (47 CFR 76.51).
            (ii) States with all network stations and superstations in
          same local market. - In a State in which all network stations
          and superstations licensed by the Federal Communications
          Commission within that State as of January 1, 1995, are
          assigned to the same local market and that local market does
          not encompass all counties of that State, the statutory
          license provided under subparagraph (A) shall apply to the
          secondary transmission by a satellite carrier of the primary
          transmissions of such station to all subscribers in the State
          who reside in a local market that is within the first 50
          major television markets as listed in the regulations of the
          Commission as in effect on such date (section 76.51 of title
          47 of the Code of Federal Regulations).
            (iii) Additional stations. - In the case of that State in
          which are located 4 counties that - 
              (I) on January 1, 2004, were in local markets principally
            comprised of counties in another State, and
              (II) had a combined total of 41,340 television
            households, according to the U.S. Television Household
            Estimates by Nielsen Media Research for 2004,
          the statutory license provided under subparagraph (A) shall
          apply to secondary transmissions by a satellite carrier to
          subscribers in any such county of the primary transmissions
          of any network station located in that State, if the
          satellite carrier was making such secondary transmissions to
          any subscribers in that county on January 1, 2004.
            (iv) Certain additional stations. - If 2 adjacent counties
          in a single State are in a local market comprised principally
          of counties located in another State, the statutory license
          provided for in subparagraph (A) shall apply to the secondary
          transmission by a satellite carrier to subscribers in those 2
          counties of the primary transmissions of any network station
          located in the capital of the State in which such 2 counties
          are located, if - 
              (I) the 2 counties are located in a local market that is
            in the top 100 markets for the year 2003 according to
            Nielsen Media Research; and
              (II) the total number of television households in the 2
            counties combined did not exceed 10,000 for the year 2003
            according to Nielsen Media Research.
            (v) Applicability of royalty rates. - The royalty rates
          under subsection (b)(1)(B) apply to the secondary
          transmissions to which the statutory license under
          subparagraph (A) applies under clauses (i), (ii), (iii), and
          (iv).
          (D) Submission of subscriber lists to networks. - 
            (i) Initial lists. - A satellite carrier that makes
          secondary transmissions of a primary transmission made by a
          network station pursuant to subparagraph (A) shall, 90 days
          after commencing such secondary transmissions, submit to the
          network that owns or is affiliated with the network station -
          
              (I) a list identifying (by name and address, including
            street or rural route number, city, State, and zip code)
            all subscribers to which the satellite carrier makes
            secondary transmissions of that primary transmission to
            subscribers in unserved households; and
              (II) a separate list, aggregated by designated market
            area (as defined in section 122(j)) (by name and address,
            including street or rural route number, city, State, and
            zip code), which shall indicate those subscribers being
            served pursuant to paragraph (3), relating to significantly
            viewed stations.
            (ii) Monthly lists. - After the submission of the initial
          lists under clause (i), on the 15th of each month, the
          satellite carrier shall submit to the network - 
              (I) a list identifying (by name and address, including
            street or rural route number, city, State, and zip code)
            any persons who have been added or dropped as subscribers
            under clause (i)(I) since the last submission under clause
            (i); and
              (II) a separate list, aggregated by designated market
            area (by name and street address, including street or rural
            route number, city, State, and zip code), identifying those
            subscribers whose service pursuant to paragraph (3),
            relating to significantly viewed stations, has been added
            or dropped.
            (iii) Use of subscriber information. - Subscriber
          information submitted by a satellite carrier under this
          subparagraph may be used only for purposes of monitoring
          compliance by the satellite carrier with this subsection.
            (iv) Applicability. - The submission requirements of this
          subparagraph shall apply to a satellite carrier only if the
          network to which the submissions are to be made places on
          file with the Register of Copyrights a document identifying
          the name and address of the person to whom such submissions
          are to be made. The Register shall maintain for public
          inspection a file of all such documents.
        (3) Secondary transmissions of significantly viewed signals. - 
          (A) In general. - Notwithstanding the provisions of paragraph
        (2)(B), and subject to subparagraph (B) of this paragraph, the
        statutory license provided for in paragraphs (1) and (2) shall
        apply to the secondary transmission of the primary transmission
        of a network station or a superstation to a subscriber who
        resides outside the station's local market (as defined in
        section 122(j)) but within a community in which the signal has
        been determined by the Federal Communications Commission, to be
        significantly viewed in such community, pursuant to the rules,
        regulations, and authorizations of the Federal Communications
        Commission in effect on April 15, 1976, applicable to
        determining with respect to a cable system whether signals are
        significantly viewed in a community.
          (B) Limitation. - Subparagraph (A) shall apply only to
        secondary transmissions of the primary transmissions of network
        stations and superstations to subscribers who receive secondary
        transmissions from a satellite carrier pursuant to the
        statutory license under section 122.
          (C) Waiver. - 
            (i) In general. - A subscriber who is denied the secondary
          transmission of the primary transmission of a network station
          under subparagraph (B) may request a waiver from such denial
          by submitting a request, through the subscriber's satellite
          carrier, to the network station in the local market
          affiliated with the same network where the subscriber is
          located. The network station shall accept or reject the
          subscriber's request for a waiver within 30 days after
          receipt of the request. If the network station fails to
          accept or reject the subscriber's request for a waiver within
          that 30-day period, that network station shall be deemed to
          agree to the waiver request. Unless specifically stated by
          the network station, a waiver that was granted before the
          date of the enactment of the Satellite Home Viewer Extension
          and Reauthorization Act of 2004 under section 339(c)(2) of
          the Communications Act of 1934 shall not constitute a waiver
          for purposes of this subparagraph.
            (ii) Sunset. - The authority under clause (i) to grant
          waivers shall terminate on December 31, 2008, and any such
          waiver in effect shall terminate on that date.
        (4) Statutory license where retransmissions into local market
      available. - 
          (A) Rules for subscribers to analog signals under subsection
        (e). - 
            (i) For those receiving distant analog signals. - In the
          case of a subscriber of a satellite carrier who is eligible
          to receive the secondary transmission of the primary analog
          transmission of a network station solely by reason of
          subsection (e) (in this subparagraph referred to as a
          "distant analog signal"), and who, as of October 1, 2004, is
          receiving the distant analog signal of that network station,
          the following shall apply:
              (I) In a case in which the satellite carrier makes
            available to the subscriber the secondary transmission of
            the primary analog transmission of a local network station
            affiliated with the same television network pursuant to the
            statutory license under section 122, the statutory license
            under paragraph (2) shall apply only to secondary
            transmissions by that satellite carrier to that subscriber
            of the distant analog signal of a station affiliated with
            the same television network - 
                (aa) if, within 60 days after receiving the notice of
              the satellite carrier under section 338(h)(1) of the
              Communications Act of 1934, the subscriber elects to
              retain the distant analog signal; but
                (bb) only until such time as the subscriber elects to
              receive such local analog signal.
              (II) Notwithstanding subclause (I), the statutory license
            under paragraph (2) shall not apply with respect to any
            subscriber who is eligible to receive the distant analog
            signal of a television network station solely by reason of
            subsection (e), unless the satellite carrier, within 60
            days after the date of the enactment of the Satellite Home
            Viewer Extension and Reauthorization Act of 2004, submits
            to that television network a list, aggregated by designated
            market area (as defined in section 122(j)(2)(C)), that - 
                (aa) identifies that subscriber by name and address
              (street or rural route number, city, State, and zip code)
              and specifies the distant analog signals received by the
              subscriber; and
                (bb) states, to the best of the satellite carrier's
              knowledge and belief, after having made diligent and good
              faith inquiries, that the subscriber is eligible under
              subsection (e) to receive the distant analog signals.
            (ii) For those not receiving distant analog signals. - In
          the case of any subscriber of a satellite carrier who is
          eligible to receive the distant analog signal of a network
          station solely by reason of subsection (e) and who did not
          receive a distant analog signal of a station affiliated with
          the same network on October 1, 2004, the statutory license
          under paragraph (2) shall not apply to secondary
          transmissions by that satellite carrier to that subscriber of
          the distant analog signal of a station affiliated with the
          same network.
          (B) Rules for other subscribers. - In the case of a
        subscriber of a satellite carrier who is eligible to receive
        the secondary transmission of the primary analog transmission
        of a network station under the statutory license under
        paragraph (2) (in this subparagraph referred to as a "distant
        analog signal"), other than subscribers to whom subparagraph
        (A) applies, the following shall apply:
            (i) In a case in which the satellite carrier makes
          available to that subscriber, on January 1, 2005, the
          secondary transmission of the primary analog transmission of
          a local network station affiliated with the same television
          network pursuant to the statutory license under section 122,
          the statutory license under paragraph (2) shall apply only to
          secondary transmissions by that satellite carrier to that
          subscriber of the distant analog signal of a station
          affiliated with the same television network if the
          subscriber's satellite carrier, not later than March 1, 2005,
          submits to that television network a list, aggregated by
          designated market area (as defined in section 122(j)(2)(C)),
          that identifies that subscriber by name and address (street
          or rural route number, city, State, and zip code) and
          specifies the distant analog signals received by the
          subscriber.
            (ii) In a case in which the satellite carrier does not make
          available to that subscriber, on January 1, 2005, the
          secondary transmission of the primary analog transmission of
          a local network station affiliated with the same television
          network pursuant to the statutory license under section 122,
          the statutory license under paragraph (2) shall apply only to
          secondary transmissions by that satellite carrier of the
          distant analog signal of a station affiliated with the same
          network to that subscriber if - 
              (I) that subscriber seeks to subscribe to such distant
            analog signal before the date on which such carrier
            commences to provide pursuant to the statutory license
            under section 122 the secondary transmissions of the
            primary analog transmission of stations from the local
            market of such local network station; and
              (II) the satellite carrier, within 60 days after such
            date, submits to each television network a list that
            identifies each subscriber in that local market provided
            such an analog signal by name and address (street or rural
            route number, city, State, and zip code) and specifies the
            distant analog signals received by the subscriber.
          (C) Future applicability. - The statutory license under
        paragraph (2) shall not apply to the secondary transmission by
        a satellite carrier of a primary analog transmission of a
        network station to a person who - 
            (i) is not a subscriber lawfully receiving such secondary
          transmission as of the date of the enactment of the Satellite
          Home Viewer Extension and Reauthorization Act of 2004; and
            (ii) at the time such person seeks to subscribe to receive
          such secondary transmission, resides in a local market where
          the satellite carrier makes available to that person the
          secondary transmission of the primary analog transmission of
          a local network station affiliated with the same television
          network pursuant to the statutory license under section 122,
          and such secondary transmission of such primary transmission
          can reach such person.
          (D) Special rules for distant digital signals. - The
        statutory license under paragraph (2) shall apply to secondary
        transmissions by a satellite carrier to a subscriber of primary
        digital transmissions of network stations if such secondary
        transmissions to such subscriber are permitted under section
        339(a)(2)(D) of the Communications Act of 1934, as in effect on
        the day after the date of the enactment of the Satellite Home
        Viewer Extension and Reauthorization Act of 2004, except that
        the reference to section 73.683(a) of title 47, Code of Federal
        Regulations, referred to in section 339(a)(2)(D)(i)(I) shall
        refer to such section as in effect on the date of the enactment
        of the Satellite Home Viewer Extension and Reauthorization Act
        of 2004.
          (E) Other provisions not affected. - This paragraph shall not
        affect the applicability of the statutory license to secondary
        transmissions under paragraph (3) or to unserved households
        included under paragraph (12).
          (F) Waiver. - A subscriber who is denied the secondary
        transmission of a network station under subparagraph (C) or (D)
        may request a waiver from such denial by submitting a request,
        through the subscriber's satellite carrier, to the network
        station in the local market affiliated with the same network
        where the subscriber is located. The network station shall
        accept or reject the subscriber's request for a waiver within
        30 days after receipt of the request. If the network station
        fails to accept or reject the subscriber's request for a waiver
        within that 30-day period, that network station shall be deemed
        to agree to the waiver request. Unless specifically stated by
        the network station, a waiver that was granted before the date
        of the enactment of the Satellite Home Viewer Extension and
        Reauthorization Act of 2004 under section 339(c)(2) of the
        Communications Act of 1934 shall not constitute a waiver for
        purposes of this subparagraph.
          (G) Available defined. - For purposes of this paragraph, a
        satellite carrier makes available a secondary transmission of
        the primary transmission of a local station to a subscriber or
        person if the satellite carrier offers that secondary
        transmission to other subscribers who reside in the same zip
        code as that subscriber or person.
        (5) Noncompliance with reporting and payment requirements. -
      Notwithstanding the provisions of paragraphs (1) and (2), the
      willful or repeated secondary transmission to the public by a
      satellite carrier of a primary transmission made by a
      superstation or a network station and embodying a performance or
      display of a work is actionable as an act of infringement under
      section 501, and is fully subject to the remedies provided by
      sections 502 through 506 and 509, where the satellite carrier has
      not deposited the statement of account and royalty fee required
      by subsection (b), or has failed to make the submissions to
      networks required by paragraph (2)(C).
        (6) Willful alterations. - Notwithstanding the provisions of
      paragraphs (1) and (2), the secondary transmission to the public
      by a satellite carrier of a performance or display of a work
      embodied in a primary transmission made by a superstation or a
      network station is actionable as an act of infringement under
      section 501, and is fully subject to the remedies provided by
      sections 502 through 506 and sections 509 and 510, if the content
      of the particular program in which the performance or display is
      embodied, or any commercial advertising or station announcement
      transmitted by the primary transmitter during, or immediately
      before or after, the transmission of such program, is in any way
      willfully altered by the satellite carrier through changes,
      deletions, or additions, or is combined with programming from any
      other broadcast signal.
        (7) Violation of territorial restrictions on statutory license
      for network stations. - 
          (A) Individual violations. - The willful or repeated
        secondary transmission by a satellite carrier of a primary
        transmission made by a network station and embodying a
        performance or display of a work to a subscriber who is not
        eligible to receive the transmission under this section is
        actionable as an act of infringement under section 501 and is
        fully subject to the remedies provided by sections 502 through
        506 and 509, except that - 
            (i) no damages shall be awarded for such act of
          infringement if the satellite carrier took corrective action
          by promptly withdrawing service from the ineligible
          subscriber, and
            (ii) any statutory damages shall not exceed $5 for such
          subscriber for each month during which the violation
          occurred.
          (B) Pattern of violations. - If a satellite carrier engages
        in a willful or repeated pattern or practice of delivering a
        primary transmission made by a network station and embodying a
        performance or display of a work to subscribers who are not
        eligible to receive the transmission under this section, then
        in addition to the remedies set forth in subparagraph (A) - 
            (i) if the pattern or practice has been carried out on a
          substantially nationwide basis, the court shall order a
          permanent injunction barring the secondary transmission by
          the satellite carrier, for private home viewing, of the
          primary transmissions of any primary network station
          affiliated with the same network, and the court may order
          statutory damages of not to exceed $250,000 for each 6-month
          period during which the pattern or practice was carried out;
          and
            (ii) if the pattern or practice has been carried out on a
          local or regional basis, the court shall order a permanent
          injunction barring the secondary transmission, for private
          home viewing in that locality or region, by the satellite
          carrier of the primary transmissions of any primary network
          station affiliated with the same network, and the court may
          order statutory damages of not to exceed $250,000 for each 6-
          month period during which the pattern or practice was
          carried out.
          (C) Previous subscribers excluded. - Subparagraphs (A) and
        (B) do not apply to secondary transmissions by a satellite
        carrier to persons who subscribed to receive such secondary
        transmissions from the satellite carrier or a distributor
        before November 16, 1988.
          (D) Burden of proof. - In any action brought under this
        paragraph, the satellite carrier shall have the burden of
        proving that its secondary transmission of a primary
        transmission by a network station is to a subscriber who is
        eligible to receive the secondary transmission under this
        section.
          (E) Exception. - The secondary transmission by a satellite
        carrier of a performance or display of a work embodied in a
        primary transmission made by a network station to subscribers
        who do not reside in unserved households shall not be an act of
        infringement if - 
            (i) the station on May 1, 1991, was retransmitted by a
          satellite carrier and was not on that date owned or operated
          by or affiliated with a television network that offered
          interconnected program service on a regular basis for 15 or
          more hours per week to at least 25 affiliated television
          licensees in 10 or more States;
            (ii) as of July 1, 1998, such station was retransmitted by
          a satellite carrier under the statutory license of this
          section; and
            (iii) the station is not owned or operated by or affiliated
          with a television network that, as of January 1, 1995,
          offered interconnected program service on a regular basis for
          15 or more hours per week to at least 25 affiliated
          television licensees in 10 or more States.
        (8) Discrimination by a satellite carrier. - Notwithstanding
      the provisions of paragraph (1), the willful or repeated
      secondary transmission to the public by a satellite carrier of a
      performance or display of a work embodied in a primary
      transmission made by a superstation or a network station is
      actionable as an act of infringement under section 501, and is
      fully subject to the remedies provided by sections 502 through
      506 and 509, if the satellite carrier unlawfully discriminates
      against a distributor.
        (9) Geographic limitation on secondary transmissions. - The
      statutory license created by this section shall apply only to
      secondary transmissions to households located in the United
      States.
        (10) Loser pays for signal intensity measurement; recovery of
      measurement costs in a civil action. - In any civil action filed
      relating to the eligibility of subscribing households as unserved
      households - 
          (A) a network station challenging such eligibility shall,
        within 60 days after receipt of the measurement results and a
        statement of such costs, reimburse the satellite carrier for
        any signal intensity measurement that is conducted by that
        carrier in response to a challenge by the network station and
        that establishes the household is an unserved household; and
          (B) a satellite carrier shall, within 60 days after receipt
        of the measurement results and a statement of such costs,
        reimburse the network station challenging such eligibility for
        any signal intensity measurement that is conducted by that
        station and that establishes the household is not an unserved
        household.
        (11) Inability to conduct measurement. - If a network station
      makes a reasonable attempt to conduct a site measurement of its
      signal at a subscriber's household and is denied access for the
      purpose of conducting the measurement, and is otherwise unable to
      conduct a measurement, the satellite carrier shall within 60 days
      notice thereof, terminate service of the station's network to
      that household.
        (12) Service to recreational vehicles and commercial trucks. - 
          (A) Exemption. - 
            (i) In general. - For purposes of this subsection, and
          subject to clauses (ii) and (iii), the term "unserved
          household" shall include - 
              (I) recreational vehicles as defined in regulations of
            the Secretary of Housing and Urban Development under
            section 3282.8 of title 24 of the Code of Federal
            Regulations; and
              (II) commercial trucks that qualify as commercial motor
            vehicles under regulations of the Secretary of
            Transportation under section 383.5 of title 49 of the Code
            of Federal Regulations.
            (ii) Limitation. - Clause (i) shall apply only to a
          recreational vehicle or commercial truck if any satellite
          carrier that proposes to make a secondary transmission of a
          network station to the operator of such a recreational
          vehicle or commercial truck complies with the documentation
          requirements under subparagraphs (B) and (C).
            (iii) Exclusion. - For purposes of this subparagraph, the
          terms "recreational vehicle" and "commercial truck" shall not
          include any fixed dwelling, whether a mobile home or
          otherwise.
          (B) Documentation requirements. - A recreational vehicle or
        commercial truck shall be deemed to be an unserved household
        beginning 10 days after the relevant satellite carrier provides
        to the network that owns or is affiliated with the network
        station that will be secondarily transmitted to the
        recreational vehicle or commercial truck the following
        documents:
            (i) Declaration. - A signed declaration by the operator of
          the recreational vehicle or commercial truck that the
          satellite dish is permanently attached to the recreational
          vehicle or commercial truck, and will not be used to receive
          satellite programming at any fixed dwelling.
            (ii) Registration. - In the case of a recreational vehicle,
          a copy of the current State vehicle registration for the
          recreational vehicle.
            (iii) Registration and license. - In the case of a
          commercial truck, a copy of - 
              (I) the current State vehicle registration for the truck;
            and
              (II) a copy of a valid, current commercial driver's
            license, as defined in regulations of the Secretary of
            Transportation under section 383 of title 49 of the Code of
            Federal Regulations, issued to the operator.
          (C) Updated documentation requirements. - If a satellite
        carrier wishes to continue to make secondary transmissions to a
        recreational vehicle or commercial truck for more than a 2-year
        period, that carrier shall provide each network, upon request,
        with updated documentation in the form described under
        subparagraph (B) during the 90 days before expiration of that 2-
        year period.
        (13) Statutory license contingent on compliance with fcc rules
      and remedial steps. - Notwithstanding any other provision of this
      section, the willful or repeated secondary transmission to the
      public by a satellite carrier of a primary transmission embodying
      a performance or display of a work made by a broadcast station
      licensed by the Federal Communications Commission is actionable
      as an act of infringement under section 501, and is fully subject
      to the remedies provided by sections 502 through 506 and 509, if,
      at the time of such transmission, the satellite carrier is not in
      compliance with the rules, regulations, and authorizations of the
      Federal Communications Commission concerning the carriage of
      television broadcast station signals.
        (14) Waivers. - A subscriber who is denied the secondary
      transmission of a signal of a network station under subsection
      (a)(2)(B) may request a waiver from such denial by submitting a
      request, through the subscriber's satellite carrier, to the
      network station asserting that the secondary transmission is
      prohibited. The network station shall accept or reject a
      subscriber's request for a waiver within 30 days after receipt of
      the request. If a television network station fails to accept or
      reject a subscriber's request for a waiver within the 30-day
      period after receipt of the request, that station shall be deemed
      to agree to the waiver request and have filed such written
      waiver. Unless specifically stated by the network station, a
      waiver that was granted before the date of the enactment of the
      Satellite Home Viewer Extension and Reauthorization Act of 2004
      under section 339(c)(2) of the Communications Act of 1934, and
      that was in effect on such date of enactment, shall constitute a
      waiver for purposes of this paragraph
        (15) Carriage of low power television stations. - 
          (A) In general. - Notwithstanding paragraph (2)(B), and
        subject to subparagraphs (B) through (F) of this paragraph, the
        statutory license provided for in paragraphs (1) and (2) shall
        apply to the secondary transmission of the primary transmission
        of a network station or a superstation that is licensed as a
        low power television station, to a subscriber who resides
        within the same local market.
          (B) Geographic limitation. - 
            (i) Network stations. - With respect to network stations,
          secondary transmissions provided for in subparagraph (A)
          shall be limited to secondary transmissions to subscribers
          who - 
              (I) reside in the same local market as the station
            originating the signal; and
              (II) reside within 35 miles of the transmitter site of
            such station, except that in the case of such a station
            located in a standard metropolitan statistical area which
            has 1 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.
            (ii) Superstations. - With respect to superstations,
          secondary transmissions provided for in subparagraph (A)
          shall be limited to secondary transmissions to subscribers
          who reside in the same local market as the station
          originating the signal.
          (C) No applicability to repeaters and translators. -
        Secondary transmissions provided for in subparagraph (A) shall
        not apply to any low power television station that retransmits
        the programs and signals of another television station for more
        than 2 hours each day.
          (D) Royalty fees. - Notwithstanding subsection (b)(1)(B), a
        satellite carrier whose secondary transmissions of the primary
        transmissions of a low power television station are subject to
        statutory licensing under this section shall have no royalty
        obligation for secondary transmissions to a subscriber who
        resides within 35 miles of the transmitter site of such
        station, except that in the case of such a station located in a
        standard metropolitan statistical area which has 1 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.
        Carriage of a superstation that is a low power television
        station within the station's local market, but outside of the
        35-mile or 20-mile radius described in the preceding sentence,
        shall be subject to royalty payments under subsection
        (b)(1)(B).
          (E) Limitation to subscribers taking local-into-local
        service. - Secondary transmissions provided for in subparagraph
        (A) may be made only to subscribers who receive secondary
        transmissions of primary transmissions from that satellite
        carrier pursuant to the statutory license under section 122,
        and only in conformity with the requirements under 340(b) of
        the Communications Act of 1934, as in effect on the date of the
        enactment of the Satellite Home Viewer Extension and
        Reauthorization Act of 2004.
        (16) Restricted transmission of out-of-state distant network
      signals into certain markets. - 
          (A) Out-of-state network affiliates. - Notwithstanding any
        other provision of this title, the statutory license in this
        subsection and subsection (b) shall not apply to any secondary
        transmission of the primary transmission of a network station
        located outside of the State of Alaska to any subscriber in
        that State to whom the secondary transmission of the primary
        transmission of a television station located in that State is
        made available by the satellite carrier pursuant to section
        122.
          (B) Exception. - The limitation in subparagraph (A) shall not
        apply to the secondary transmission of the primary transmission
        of a digital signal of a network station located outside of the
        State of Alaska if at the time that the secondary transmission
        is made, no television station licensed to a community in the
        State and affiliated with the same network makes primary
        transmissions of a digital signal.
      (b) Statutory License for Secondary Transmissions for Private
    Home Viewing. -  (!1)
        (1) Deposits with the register of copyrights. - A satellite
      carrier whose secondary transmissions are subject to statutory
      licensing under subsection (a) shall, on a semiannual basis,
      deposit with the Register of Copyrights, in accordance with
      requirements that the Register shall prescribe by regulation - 
          (A) a statement of account, covering the preceding 6-month
        period, specifying the names and locations of all superstations
        and network stations whose signals were retransmitted, at any
        time during that period, to subscribers as described in
        subsections (a)(1) and (a)(2), the total number of subscribers
        that received such retransmissions, and such other data as the
        Register of Copyrights may from time to time prescribe by
        regulation; and
          (B) a royalty fee for that 6-month period, computed by
        multiplying the total number of subscribers receiving each
        secondary transmission of each superstation or network station
        during each calendar month by the appropriate rate in effect
        under this section.
      Notwithstanding the provisions of subparagraph (B), a satellite
      carrier whose secondary transmissions are subject to statutory
      licensing under paragraph (1) or (2) of subsection (a) shall have
      no royalty obligation for secondary transmissions to a subscriber
      under paragraph (3) of such subsection.
        (2) Investment of fees. - The Register of Copyrights shall
      receive all fees deposited under this section and, after
      deducting the reasonable costs incurred by the Copyright Office
      under this section (other than the costs deducted under paragraph
      (4)), shall deposit the balance in the Treasury of the United
      States, in such manner as the Secretary of the Treasury directs.
      All funds held by the Secretary of the Treasury shall be invested
      in interest-bearing securities of the United States for later
      distribution with interest by the Librarian of Congress as
      provided by this title.
        (3) Persons to whom fees are distributed. - The royalty fees
      deposited under paragraph (2) shall, in accordance with the
      procedures provided by paragraph (4), be distributed to those
      copyright owners whose works were included in a secondary
      transmission made by a satellite carrier during the applicable 6-
      month accounting period and who file a claim with the Copyright
      Royalty Judges under paragraph (4).
        (4) Procedures for distribution. - The royalty fees deposited
      under paragraph (2) shall be distributed in accordance with the
      following procedures:
          (A) Filing of claims for fees. - During the month of July in
        each year, each person claiming to be entitled to statutory
        license fees for secondary transmissions shall file a claim
        with the Copyright Royalty Judges, in accordance with
        requirements that the Copyright Royalty Judges shall prescribe
        by regulation. For purposes of this paragraph, any claimants
        may agree among themselves as to the proportionate division of
        statutory license fees among them, may lump their claims
        together and file them jointly or as a single claim, or may
        designate a common agent to receive payment on their behalf.
          (B) Determination of controversy; distributions. - After the
        first day of August of each year, the Copyright Royalty Judges
        shall determine whether there exists a controversy concerning
        the distribution of royalty fees. If the Copyright Royalty
        Judges determine that no such controversy exists, the Copyright
        Royalty Judges shall authorize the Librarian of Congress to
        proceed to distribute such fees to the copyright owners
        entitled to receive them, or to their designated agents,
        subject to the deduction of reasonable administrative costs
        under this section. If the Copyright Royalty Judges find the
        existence of a controversy, the Copyright Royalty Judges shall,
        pursuant to chapter 8 of this title, conduct a proceeding to
        determine the distribution of royalty fees.
          (C) Withholding of fees during controversy. - During the
        pendency of any proceeding under this subsection, the Copyright
        Royalty Judges shall have the discretion to authorize the
        Librarian of Congress to proceed to distribute any amounts that
        are not in controversy.
      (c) Adjustment of Royalty Fees. - 
        (1) Applicability and determination of royalty fees for analog
      signals. - 
          (A) Initial fee. - The appropriate fee for purposes of
        determining the royalty fee under subsection (b)(1)(B) for the
        secondary transmission of the primary analog transmissions of
        network stations and superstations shall be the appropriate fee
        set forth in part 258 of title 37, Code of Federal Regulations,
        as in effect on July 1, 2004, as modified under this paragraph.
          (B) Fee set by voluntary negotiation. - On or before January
        2, 2005, the Librarian of Congress shall cause to be published
        in the Federal Register of the initiation of voluntary
        negotiation proceedings for the purpose of determining the
        royalty fee to be paid by satellite carriers for the secondary
        transmission of the primary analog transmission of network
        stations and superstations under subsection (b)(1)(B).
          (C) Negotiations. - Satellite carriers, distributors, and
        copyright owners entitled to royalty fees under this section
        shall negotiate in good faith in an effort to reach a voluntary
        agreement or agreements for the payment of royalty fees. Any
        such satellite carriers, distributors and copyright owners may
        at any time negotiate and agree to the royalty fee, and may
        designate common agents to negotiate, agree to, or pay such
        fees. If the parties fail to identify common agents, the
        Librarian of Congress shall do so, after requesting
        recommendations from the parties to the negotiation proceeding.
        The parties to each negotiation proceeding shall bear the cost
        thereof.
          (D) Agreements binding on parties; filing of agreements;
        public notice. - (i) Voluntary agreements negotiated at any
        time in accordance with this paragraph shall be binding upon
        all satellite carriers, distributors, and copyright owners that
        a (!2) parties thereto. Copies of such agreements shall be
        filed with the Copyright Office within 30 days after execution
        in accordance with regulations that the Register of Copyrights
        shall prescribe.
          (ii)(I) Within 10 days after publication in the Federal
        Register of a notice of the initiation of voluntary negotiation
        proceedings, parties who have reached a voluntary agreement may
        request that the royalty fees in that agreement be applied to
        all satellite carriers, distributors, and copyright owners
        without convening an arbitration proceeding pursuant to
        subparagraph (E).
          (II) Upon receiving a request under subclause (I), the
        Librarian of Congress shall immediately provide public notice
        of the royalty fees from the voluntary agreement and afford
        parties an opportunity to state that they object to those fees.
          (III) The Librarian shall adopt the royalty fees from the
        voluntary agreement for all satellite carriers, distributors,
        and copyright owners without convening an arbitration
        proceeding unless a party with an intent to participate in the
        arbitration proceeding and a significant interest in the
        outcome of that proceeding objects under subclause (II).
          (E) Period agreement is in effect. - The obligation to pay
        the royalty fees established under a voluntary agreement which
        has been filed with the Copyright Office in accordance with
        this paragraph shall become effective on the date specified in
        the agreement, and shall remain in effect until December 31,
        2009, or in accordance with the terms of the agreement,
        whichever is later.
          (F) Fee set by compulsory arbitration. - 
            (i) Notice of initiation of proceedings. - On or before May
          1, 2005, the Librarian of Congress shall cause notice to be
          published in the Federal Register of the initiation of
          arbitration proceedings for the purpose of determining the
          royalty fee to be paid for the secondary transmission of
          primary analog transmission of network stations and
          superstations under subsection (b)(1)(B) by satellite
          carriers and distributors
              (I) in the absence of a voluntary agreement filed in
            accordance with subparagraph (D) that establishes royalty
            fees to be paid by all satellite carriers and distributors;
            or
              (II) if an objection to the fees from a voluntary
            agreement submitted for adoption by the Librarian of
            Congress to apply to all satellite carriers, distributors,
            and copyright owners is received under subparagraph (D)
            from a party with an intent to participate in the
            arbitration proceeding and a significant interest in the
            outcome of that proceeding.
          Such arbitration proceeding shall be conducted under chapter
          8 as in effect on the day before the date of the enactment of
          the Copyright Royalty and Distribution Act of 2004.
            (ii) Establishment of royalty fees. - In determining
          royalty fees under this subparagraph, the copyright
          arbitration royalty panel appointed under chapter 8, as in
          effect on the day before the date of the enactment of the
          Copyright Royalty and Distribution Act of 2004 shall
          establish fees for the secondary transmissions of the primary
          analog transmission of network stations and superstations
          that most clearly represent the fair market value of
          secondary transmissions, except that the Librarian of
          Congress and any copyright arbitration royalty panel shall
          adjust those fees to account for the obligations of the
          parties under any applicable voluntary agreement filed with
          the Copyright Office pursuant to subparagraph (D). In
          determining the fair market value, the panel shall base its
          decision on economic, competitive, and programming
          information presented by the parties, including - 
              (I) the competitive environment in which such programming
            is distributed, the cost of similar signals in similar
            private and compulsory license marketplaces, and any
            special features and conditions of the retransmission
            marketplace;
              (II) the economic impact of such fees on copyright owners
            and satellite carriers; and
              (III) the impact on the continued availability of
            secondary transmissions to the public.
            (iii) Period during which decision of arbitration panel or
          order of librarian effective. - The obligation to pay the
          royalty fee established under a determination which - 
              (I) is made by a copyright arbitration royalty panel in
            an arbitration proceeding under this paragraph and is
            adopted by the Librarian of Congress under section 802(f),
            as in effect on the day before the date of the enactment of
            the Copyright Royalty and Distribution Act of 2004; or
              (II) is established by the Librarian under section 802(f)
            as in effect on the day before such date of enactment shall
            be effective as of January 1, 2005.
            (iv) Persons subject to royalty fee. - The royalty fee
          referred to in (iii) shall be binding on all satellite
          carriers, distributors and copyright owners, who are not
          party to a voluntary agreement filed with the Copyright
          Office under subparagraph (D).
        (2) Applicability and determination of royalty fees for digital
      signals. - The process and requirements for establishing the
      royalty fee payable under subsection (b)(1)(B) for the secondary
      transmission of the primary digital transmissions of network
      stations and superstations shall be the same as that set forth in
      paragraph (1) for the secondary transmission of the primary
      analog transmission of network stations and superstations, except
      that - 
          (A) the initial fee under paragraph (1)(A) shall be the rates
        set forth in section 298.3(b)(1) and (2) of title 37, Code of
        Federal Regulations, as in effect on the date of the enactment
        of the Satellite Home Viewer Extension and Reauthorization Act
        of 2004, reduced by 22.5 percent;
          (B) the notice of initiation of arbitration proceedings
        required in paragraph (1)(F)(i) shall be published on or before
        December 31, 2005; and
          (C) the royalty fees that are established for the secondary
        transmission of the primary digital transmission of network
        stations and superstations in accordance with to (!3) the
        procedures set forth in paragraph (1)(F)(iii) and are payable
        under subsection (b)(1)(B) - 
            (i) shall be reduced by 22.5 percent; and
            (ii) shall be adjusted by the Librarian of Congress on
          January 1, 2007, and on January 1 of each year thereafter, to
          reflect any changes occurring during the preceding 12 months
          in the cost of living as determined by the most recent
          Consumer Price Index (for all consumers and items) published
          by the Secretary of Labor.
      (d) Definitions. - As used in this section - 
        (1) Distributor. - The term "distributor" means an entity which
      contracts to distribute secondary transmissions from a satellite
      carrier and, either as a single channel or in a package with
      other programming, provides the secondary transmission either
      directly to individual subscribers or indirectly through other
      program distribution entities in accordance with the provisions
      of this section.
        (2) Network station. - The term "network station" means - 
          (A) a television station licensed by the Federal
        Communications Commission, including any translator station or
        terrestrial satellite station that rebroadcasts all or
        substantially all of the programming broadcast by a network
        station, that is owned or operated by, or affiliated with, one
        or more of the television networks in the United States which
        offer an interconnected program service on a regular basis for
        15 or more hours per week to at least 25 of its affiliated
        television licensees in 10 or more States; or
          (B) a noncommercial educational broadcast station (as defined
        in section 397 of the Communications Act of 1934);
      except that the term does not include the signal of the Alaska
      Rural Communications Service, or any successor entity to that
      service.
        (3) Primary network station. - The term "primary network
      station" means a network station that broadcasts or rebroadcasts
      the basic programming service of a particular national network.
        (4) Primary transmission. - The term "primary transmission" has
      the meaning given that term in section 111(f) of this title.
        (5) Private home viewing. - The term "private home viewing"
      means the viewing, for private use in a household by means of
      satellite reception equipment which is operated by an individual
      in that household and which serves only such household, of a
      secondary transmission delivered by a satellite carrier of a
      primary transmission of a television station licensed by the
      Federal Communications Commission.
        (6) Satellite carrier. - The term "satellite carrier" means an
      entity that uses the facilities of a satellite or satellite
      service licensed by the Federal Communications Commission and
      operates in the Fixed-Satellite Service under part 25 of title 47
      of the Code of Federal Regulations or the Direct Broadcast
      Satellite Service under part 100 of title 47 of the Code of
      Federal Regulations, to establish and operate a channel of
      communications for point-to-multipoint distribution of television
      station signals, and that owns or leases a capacity or service on
      a satellite in order to provide such point-to-multipoint
      distribution, except to the extent that such entity provides such
      distribution pursuant to tariff under the Communications Act of
      1934, other than for private home viewing pursuant to this
      section.
        (7) Secondary transmission. - The term "secondary transmission"
      has the meaning given that term in section 111(f) of this title.
        (8) Subscriber. - The term "subscriber" means an individual or
      entity that receives a secondary transmission service by means of
      a secondary transmission from a satellite carrier and pays a fee
      for the service, directly or indirectly, to the satellite carrier
      or to a distributor in accordance with the provisions of this
      section.
        (9) Superstation. - The term "superstation" means a television
      station, other than a network station, licensed by the Federal
      Communications Commission, that is secondarily transmitted by a
      satellite carrier.
        (10) Unserved household. - The term "unserved household", with
      respect to a particular television network, means a household
      that - 
          (A) cannot receive, through the use of a conventional,
        stationary, outdoor rooftop receiving antenna, an over-the-air
        signal of a primary network station affiliated with that
        network of Grade B intensity as defined by the Federal
        Communications Commission under section 73.683(a) of title 47
        of the Code of Federal Regulations, as in effect on January 1,
        1999;
          (B) is subject to a waiver that meets the standards of
        subsection (a)(14) whether or not the waiver was granted before
        the date of the enactment of the Satellite Home Viewer
        Extension and Reauthorization Act of 2004;
          (C) is a subscriber to whom subsection (e) applies;
          (D) is a subscriber to whom subsection (a)(12) applies; or
          (E) is a subscriber to whom the exemption under subsection
        (a)(2)(B)(iii) applies.
        (11) Local market. - The term "local market" has the meaning
      given such term under section 122(j), except that with respect to
      a low power television station, the term "local market" means the
      designated market area in which the station is located.
        (12) Low power television station. - The term "low power
      television station" means a low power television (!4) as defined
      under section 74.701(f) of title 47, Code of Federal Regulations,
      as in effect on June 1, 2004. For purposes of this paragraph, the
      term "low power television station" includes a low power
      television station that has been accorded primary status as a
      Class A television licensee under section 73.6001(a) of title 47,
      Code of Federal Regulations.
        (13) Commercial establishment. - The term "commercial
      establishment" - 
          (A) means an establishment used for commercial purposes, such
        as a bar, restaurant, private office, fitness club, oil rig,
        retail store, bank or other financial institution, supermarket,
        automobile or boat dealership, or any other establishment with
        a common business area; and
          (B) does not include a multi-unit permanent or temporary
        dwelling where private home viewing occurs, such as a hotel,
        dormitory, hospital, apartment, condominium, or prison.
      (e) Moratorium on Copyright Liability. - Until December 31, 2009,
    a subscriber who does not receive a signal of Grade A intensity (as
    defined in the regulations of the Federal Communications Commission
    under section 73.683(a) of title 47 of the Code of Federal
    Regulations, as in effect on January 1, 1999, or predicted by the
    Federal Communications Commission using the Individual Location
    Longley-Rice methodology described by the Federal Communications
    Commission in Docket No. 98-201) of a local network television
    broadcast station shall remain eligible to receive signals of
    network stations affiliated with the same network, if that
    subscriber had satellite service of such network signal terminated
    after July 11, 1998, and before October 31, 1999, as required by
    this section, or received such service on October 31, 1999.
      (f) Expedited Consideration by Justice Department of Voluntary
    Agreements to Provide Satellite Secondary Transmissions to Local
    Markets. - 
        (1) In general. - In a case in which no satellite carrier makes
      available, to subscribers located in a local market, as defined
      in section 122(j)(2), the secondary transmission into that market
      of a primary transmission of one or more television broadcast
      stations licensed by the Federal Communications Commission, and
      two or more satellite carriers request a business review letter
      in accordance with section 50.6 of title 28, Code of Federal
      Regulations (as in effect on July 7, 2004), in order to assess
      the legality under the antitrust laws of proposed business
      conduct to make or carry out an agreement to provide such
      secondary transmission into such local market, the appropriate
      official of the Department of Justice shall respond to the
      request no later than 90 days after the date on which the request
      is received.
        (2) Definition. - For purposes of this subsection, the term
      "antitrust laws" - 
          (A) has the meaning given that term in subsection (a) of the
        first section of the Clayton Act (15 U.S.C. 12(a)), except that
        such term includes section 5 of the Federal Trade Commission
        Act (15 U.S.C. 45) to the extent such section 5 applies to
        unfair methods of competition; and
          (B) includes any State law similar to the laws referred to in
        paragraph (1).
-SOURCE-
    (Added Pub. L. 100-667, title II, Sec. 202(2), Nov. 16, 1988, 102
    Stat. 3949; amended Pub. L. 103-198, Sec. 5, Dec. 17, 1993, 107
    Stat. 2310; Pub. L. 103-369, Sec. 2, Oct. 18, 1994, 108 Stat. 3477;
    Pub. L. 104-39, Sec. 5(c), Nov. 1, 1995, 109 Stat. 348; Pub. L. 105-
    80, Secs. 1, 12(a)(8), Nov. 13, 1997, 111 Stat. 1529, 1535; Pub.
    L. 106-44, Sec. 1(g)(4), Aug. 5, 1999, 113 Stat. 222; Pub. L. 106-
    113, div. B, Sec. 1000(a)(9) [title I, Secs. 1004-1007, 1008(b),
    1011(b)(2), (c)], Nov. 29, 1999, 113 Stat. 1536, 1501A-527 to 1501A-
    531, 1501A-537, 1501A-543, 1501A-544; Pub. L. 107-273, div. C,
    title III, Secs. 13209, 13210(1), (8), Nov. 2, 2002, 116 Stat.
    1908, 1909; Pub. L. 108-419, Sec. 5(g), (h), Nov. 30, 2004, 118
    Stat. 2367; Pub. L. 108-447, div. J, title IX [title I, Secs.
    101(b)-105, 107(a), 108, 111(a)], Dec. 8, 2004, 118 Stat. 3394-
    3408; Pub. L. 109-303, Sec. 4(e), (g), Oct. 6, 2006, 120 Stat.
    1482, 1483.)
-STATAMEND-
                          TERMINATION OF SECTION                      
      For termination of section by section 4(a) of Pub. L. 103-369,
    see Termination of Section note below.
-REFTEXT-
                            REFERENCES IN TEXT                        
      The date of the enactment of the Satellite Home Viewer Extension
    and Reauthorization Act of 2004, referred to in subsecs.
    (a)(3)(C)(i), (4)(A)(i)(II), (C)(i), (D), (F), (14), (15)(E),
    (c)(2)(A), and (d)(10)(B), is the date of the enactment of Pub. L.
    108-447, which was approved Dec. 8, 2004.
      The date of the enactment of the Copyright Royalty and
    Distribution Act of 2004, referred to in subsec. (c)(1)(F),
    probably means the date of the enactment of the Copyright Royalty
    and Distribution Reform Act of 2004, Pub. L. 108-419, which was
    approved Nov. 30, 2004.
      The Communications Act of 1934, referred to in subsec. (d)(6), is
    act June 19, 1934, ch. 652, 48 Stat. 1064, as amended, which is
    classified principally to chapter 5 (Sec. 151 et seq.) of Title 47,
    Telegraphs, Telephones, and Radiotelegraphs. Sections 338 to 340
    and 397 of the Act are classified to sections 338 to 340 and 397,
    respectively, of Title 47. For complete classification of this Act
    to the Code, see section 609 of Title 47 and Tables.
-MISC1-
                                AMENDMENTS                            
      2006 - Subsec. (b)(4)(B). Pub. L. 109-303, Sec. 4(e)(1)(A),
    substituted second sentence for former second sentence which read
    as follows: "If the Copyright Royalty Judges determine that no such
    controversy exists, the Librarian of Congress shall, after
    deducting reasonable administrative costs under this paragraph,
    distribute such fees to the copyright owners entitled to receive
    them, or to their designated agents."
      Subsec. (b)(4)(C). Pub. L. 109-303, Sec. 4(e)(1)(B), amended
    subpar. (C) generally. Prior to amendment, text of subpar. (C) read
    as follows: "During the pendency of any proceeding under this
    subsection, the Copyright Royalty Judges shall withhold from
    distribution an amount sufficient to satisfy all claims with
    respect to which a controversy exists, but shall have the
    discretion to proceed to distribute any amounts that are not in
    controversy."
      Subsec. (c). Pub. L. 109-303, Sec. 4(g), deemed amendment by Pub.
    L. 108-419, Sec. 5(h), never to have been enacted. See 2004
    Amendment note below.
      Subsec. (c)(1)(F)(i). Pub. L. 109-303, Sec. 4(e)(2), substituted
    "arbitration" for "arbitrary" in concluding provisions.
      2004 - Subsec. (a)(1). Pub. L. 108-447, Sec. 107(a)(1), inserted
    "or for viewing in a commercial establishment" after "for private
    home viewing" in two places and substituted "subscriber" for
    "household".
      Pub. L. 108-447, Sec. 102(1), struck out "and pbs satellite feed"
    after "Superstations" in heading, substituted "paragraphs (5), (6),
    and (8)" for "paragraphs (3), (4), and (6)" and struck out "or by
    the Public Broadcasting Service satellite feed" after "primary
    transmission made by a superstation" in first sentence, and struck
    out at end "In the case of the Public Broadcasting Service
    satellite feed, the statutory license shall be effective until
    January 1, 2002."
      Subsec. (a)(2)(A). Pub. L. 108-447, Sec. 102(2)(A), substituted
    "paragraphs (5), (6), (7), and (8)" for "paragraphs (3), (4), (5),
    and (6)".
      Subsec. (a)(2)(B)(i). Pub. L. 108-447, Sec. 102(7), inserted at
    end "The limitation in this clause shall not apply to secondary
    transmissions under paragraph (3)."
      Subsec. (a)(2)(C), (D). Pub. L. 108-447, Sec. 102(2)(B), added
    subpars. (C) and (D) and struck out heading and text of former
    subpar. (C). Text read as follows: "A satellite carrier that makes
    secondary transmissions of a primary transmission made by a network
    station pursuant to subparagraph (A) shall, 90 days after
    commencing such secondary transmissions, submit to the network that
    owns or is affiliated with the network station a list identifying
    (by name and street address, including county and zip code) all
    subscribers to which the satellite carrier makes secondary
    transmissions of that primary transmission. Thereafter, on the 15th
    of each month, the satellite carrier shall submit to the network a
    list identifying (by name and street address, including county and
    zip code) any persons who have been added or dropped as such
    subscribers since the last submission under this subparagraph. Such
    subscriber information submitted by a satellite carrier may be used
    only for purposes of monitoring compliance by the satellite carrier
    with this subsection. The submission requirements of this
    subparagraph shall apply to a satellite carrier only if the network
    to whom the submissions are to be made places on file with the
    Register of Copyrights a document identifying the name and address
    of the person to whom such submissions are to be made. The Register
    shall maintain for public inspection a file of all such documents."
      Subsec. (a)(3) to (6). Pub. L. 108-447, Secs. 102(5), (6),
    103(1), added pars. (3) and (4) and redesignated former pars. (3)
    and (4) as (5) and (6), respectively. Former pars. (5) and (6)
    redesignated (7) and (8), respectively.
      Subsec. (a)(7). Pub. L. 108-447, Sec. 102(5), redesignated par.
    (5) as (7). Former par. (7) redesignated (9).
      Subsec. (a)(7)(A). Pub. L. 108-447, Sec. 103(6)(A), substituted
    "who is not eligible to receive the transmission under this
    section" for "who does not reside in an unserved household" in
    introductory provisions.
      Subsec. (a)(7)(B). Pub. L. 108-447, Sec. 103(6)(B), substituted
    "who are not eligible to receive the transmission under this
    section" for "who do not reside in unserved households" in
    introductory provisions.
      Subsec. (a)(7)(D). Pub. L. 108-447, Sec. 103(6)(C), substituted
    "is to a subscriber who is eligible to receive the secondary
    transmission under this section" for "is for private home viewing
    to an unserved household".
      Subsec. (a)(8). Pub. L. 108-447, Sec. 102(3), (5), redesignated
    par. (6) as (8) and struck out former par. (8) which related to
    transitional signal intensity measurement procedures.
      Subsec. (a)(9) to (13). Pub. L. 108-447, Sec. 102(4), (5),
    redesignated pars. (7) and (9) to (12) as (9) and (10) to (13),
    respectively.
      Subsec. (a)(14). Pub. L. 108-447, Sec. 103(2), added par. (14).
      Subsec. (a)(15). Pub. L. 108-447, Sec. 104, added par. (15).
      Subsec. (a)(16). Pub. L. 108-447, Sec. 111(a), added par. (16).
      Subsec. (b)(1). Pub. L. 108-447, Sec. 103(4), inserted at end:
    "Notwithstanding the provisions of subparagraph (B), a satellite
    carrier whose secondary transmissions are subject to statutory
    licensing under paragraph (1) or (2) of subsection (a) shall have
    no royalty obligation for secondary transmissions to a subscriber
    under paragraph (3) of such subsection."
      Subsec. (b)(1)(A). Pub. L. 108-447, Sec. 107(a)(2), struck out
    "for private home viewing" after "to subscribers".
      Subsec. (b)(1)(B). Pub. L. 108-447, Sec. 103(3), added subpar.
    (B) and struck out former subpar. (B) which read as follows: "a
    royalty fee for that 6-month period, computed by - 
        "(i) multiplying the total number of subscribers receiving each
      secondary transmission of a superstation during each calendar
      month by 17.5 cents per subscriber in the case of superstations
      that as retransmitted by the satellite carrier include any
      program which, if delivered by any cable system in the United
      States, would be subject to the syndicated exclusivity rules of
      the Federal Communications Commission, and 14 cents per
      subscriber in the case of superstations that are syndex-proof as
      defined in section 258.2 of title 37, Code of Federal
      Regulations;
        "(ii) multiplying the number of subscribers receiving each
      secondary transmission of a network station or the Public
      Broadcasting Service satellite feed during each calendar month by
      6 cents; and
        "(iii) adding together the totals computed under clauses (i)
      and (ii)."
      Subsec. (b)(3). Pub. L. 108-447, Sec. 107(a)(2), struck out "for
    private home viewing" after "secondary transmission".
      Pub. L. 108-419, Sec. 5(g)(1), substituted "Copyright Royalty
    Judges" for "Librarian of Congress".
      Subsec. (b)(4)(A). Pub. L. 108-447, Sec. 107(a)(2), struck out
    "for private home viewing" after "secondary transmissions".
      Pub. L. 108-419, Sec. 5(g)(2)(A), substituted "Copyright Royalty
    Judges" for "Librarian of Congress" in two places.
      Subsec. (b)(4)(B), (C). Pub. L. 108-419, Sec. 5(g)(2)(B),
    reenacted headings without change and amended text generally,
    substituting provisions relating to duties of Copyright Royalty
    Judges concerning determination of royalty fee controversies and
    distribution of royalty fees for provisions relating to duties of
    Librarian of Congress relating to such determination and
    distribution.
      Subsec. (c). Pub. L. 108-447, Sec. 103(5), amended heading and
    text of subsec. (c) generally. Prior to amendment, text related to
    adjustment, determination, arbitration, and reduction of royalty
    fees.
      Pub. L. 108-419, Sec. 5(h), which directed amendment of subsec.
    (c) by substituting "Copyright Royalty Judges" for "Librarian of
    Congress" in par. (2)(B), "Copyright Royalty Judges shall prescribe
    as provided in section 803(b)(6)" for "Register of Copyrights shall
    prescribe" in par. (2)(C), "proceedings" for "arbitration
    proceedings" and for "arbitration proceeding" in par. (3)(A),
    "Copyright Royalty Judges" for "copyright arbitration royalty panel
    appointed under chapter 8" and "Copyright Royalty Judges shall base
    their determination" for "panel shall base its decision" in par.
    (3)(B), "determination under chapter 8" for "decision of
    arbitration panel or order of librarian" in heading of par. (3)(C),
    and "(i) is made by the Copyright Royalty Judges pursuant to this
    paragraph and becomes final, or" and "(ii) is made by the court on
    appeal under section 803(d)(3)," for cls. (i) and (ii),
    respectively, of par. (3)(C), was deemed never to have been enacted
    by Pub L. 109-303, Sec. 4(g). See Removal of Inconsistent
    Provisions note below.
      Subsec. (d)(1). Pub. L. 108-447, Sec. 107(a)(3), struck out "for
    private home viewing" after "individual subscribers" and inserted
    "in accordance with the provisions of this section" before the
    period at end.
      Subsec. (d)(2)(A). Pub. L. 108-447, Sec. 105(1), substituted "a
    television station licensed by the Federal Communications
    Commission" for "a television broadcast station".
      Subsec. (d)(6). Pub. L. 108-447, Sec. 107(a)(4), inserted
    "pursuant to this section" before period at end.
      Subsec. (d)(8). Pub. L. 108-447, Sec. 107(a)(5), substituted "or
    entity that" for "who", struck out "for private home viewing" after
    "transmission service", and inserted "in accordance with the
    provisions of this section" before period at end.
      Subsec. (d)(9). Pub. L. 108-447, Sec. 105(2), amended heading and
    text of par. (9) generally. Prior to amendment, text read as
    follows: "The term 'superstation' - 
        "(A) means a television broadcast station, other than a network
      station, licensed by the Federal Communications Commission that
      is secondarily transmitted by a satellite carrier; and
        "(B) except for purposes of computing the royalty fee, includes
      the Public Broadcasting Service satellite feed."
      Subsec. (d)(10)(B). Pub. L. 108-447, Sec. 105(3)(A), substituted
    "that meets the standards of subsection (a)(14) whether or not the
    waiver was granted before the date of the enactment of the
    Satellite Home Viewer Extension and Reauthorization Act of 2004"
    for "granted under regulations established under section 339(c)(2)
    of the Communications Act of 1934".
      Subsec. (d)(10)(D). Pub. L. 108-447, Sec. 105(3)(B), substituted
    "(a)(12)" for "(a)(11)".
      Subsec. (d)(11) to (13). Pub. L. 108-447, Sec. 105(4), added
    pars. (11) to (13) and struck out former pars. (11) and (12) which
    read as follows:
      "(11) Local market. - The term 'local market' has the meaning
    given such term under section 122(j).
      "(12) Public broadcasting service satellite feed. - The term
    'Public Broadcasting Service satellite feed' means the national
    satellite feed distributed and designated for purposes of this
    section by the Public Broadcasting Service consisting of
    educational and informational programming intended for private home
    viewing, to which the Public Broadcasting Service holds national
    terrestrial broadcast rights."
      Subsec. (e). Pub. L. 108-447, Sec. 101(b), substituted "December
    31, 2009" for "December 31, 2004".
      Subsec. (f). Pub. L. 108-447, Sec. 108, added subsec. (f).
      2002 - Subsec. (a)(1). Pub. L. 107-273, Sec. 13209(3)(B), amended
    Pub. L. 106-113, Sec. 1000(a)(9) [title I, Sec. 1011(b)(2)(A)]. See
    1999 Amendment note below.
      Pub. L. 107-273, Sec. 13209(3)(A), amended Pub. L. 106-113, Sec.
    1000(a)(9) [title I, Sec. 1006(a)]. See 1999 Amendment note below.
      Subsec. (a)(2)(A). Pub. L. 107-273, Sec. 13209(1)(A), made
    technical correction to directory language of Pub. L. 106-113, Sec.
    1000(a)(9) [title I, Sec. 1007(2)]. See 1999 Amendment note below.
      Subsec. (a)(6). Pub. L. 107-273, Sec. 13210(1), substituted "of a
    performance" for "of performance".
      Subsec. (a)(12). Pub. L. 107-273, Sec. 13209(1)(B), made
    technical correction to directory language of Pub. L. 106-113, Sec.
    1000(a)(9) [title I, Sec. 1007(3)]. See 1999 Amendment note below.
      Subsec. (b)(1)(A). Pub. L. 107-273, Sec. 13210(8), substituted
    "retransmitted" for "transmitted" and "retransmissions" for
    "transmissions".
      Subsec. (b)(1)(B)(ii). Pub. L. 107-273, Sec. 13209(2), made
    technical correction to directory language of Pub. L. 106-113, Sec.
    1000(a)(9) [title I, Sec. 1006(b)]. See 1999 Amendment note below.
      1999 - Subsec. (a)(1). Pub. L. 106-113, Sec. 1000(a)(9) [title I,
    Sec. 1011(b)(2)(A)], as amended by Pub. L. 107-273, Sec.
    13209(3)(B), substituted "performance or display of a work embodied
    in a primary transmission made by a superstation or by the Public
    Broadcasting Service satellite feed" for "primary transmission made
    by a superstation and embodying a performance or display of a
    work".
      Pub. L. 106-113, Sec. 1000(a)(9) [title I, Sec. 1007(1)],
    inserted "with regard to secondary transmissions the satellite
    carrier is in compliance with the rules, regulations, or
    authorizations of the Federal Communications Commission governing
    the carriage of television broadcast station signals," after
    "satellite carrier to the public for private home viewing,".
      Pub. L. 106-113, Sec. 1000(a)(9) [title I, Sec. 1006(a)], as
    amended by Pub. L. 107-273, Sec. 13209(3)(A), in heading
    substituted "Superstations and pbs satellite feed" for
    "Superstations" and in text inserted "In the case of the Public
    Broadcasting Service satellite feed, the statutory license shall be
    effective until January 1, 2002." at end. Pub. L. 107-273, Sec.
    13209(3)(A)(ii), which repealed Pub. L. 106-113, Sec. 1000(a)(9)
    [title I, Sec. 1006(a)(2)], was executed by striking out "or by the
    Public Broadcasting Service satellite feed" which had been inserted
    by section 1006(a)(2) after "of a primary transmission made by a
    superstation", to reflect the probable intent of Congress.
      Subsec. (a)(2)(A). Pub. L. 106-113, Sec. 1000(a)(9) [title I,
    Sec. 1011(b)(2)(A)], substituted "a performance or display of a
    work embodied in a primary transmission made by a network station"
    for "programming contained in a primary transmission made by a
    network station and embodying a performance or display of a work".
      Pub. L. 106-113, Sec. 1000(a)(9) [title I, Sec. 1007(2)], as
    amended by Pub. L. 107-273, Sec. 13209(1)(A), inserted "with regard
    to secondary transmissions the satellite carrier is in compliance
    with the rules, regulations, or authorizations of the Federal
    Communications Commission governing the carriage of television
    broadcast station signals," after "satellite carrier to the public
    for private home viewing,".
      Subsec. (a)(2)(B). Pub. L. 106-113, Sec. 1000(a)(9) [title I,
    Sec. 1005(a)(2)], reenacted heading without change and amended text
    generally. Prior to amendment, text read as follows: "The statutory
    license provided for in subparagraph (A) shall be limited to
    secondary transmissions to persons who reside in unserved
    households."
      Subsec. (a)(2)(C). Pub. L. 106-113, Sec. 1000(a)(9) [title I,
    Sec. 1011(c)], struck out "currently" after "all subscribers to
    which the satellite carrier" in first sentence.
      Subsec. (a)(4). Pub. L. 106-113, Sec. 1000(a)(9) [title I, Sec.
    1011(b)(2)(C)], inserted "a performance or display of a work
    embodied in" after "by a satellite carrier of" and struck out "and
    embodying a performance or display of a work" after "network
    station".
      Subsec. (a)(5)(E). Pub. L. 106-113, Sec. 1000(a)(9) [title I,
    Sec. 1005(b)], added subpar. (E).
      Subsec. (a)(6). Pub. L. 106-113, Sec. 1000(a)(9) [title I, Sec.
    1011(b)(2)(D)], inserted "performance or display of a work embodied
    in" after "by a satellite carrier of" and struck out "and embodying
    a performance or display of a work" after "network station".
      Subsec. (a)(8)(C)(ii). Pub. L. 106-44 substituted "within the
    network station's" for "within the network's station" in first
    sentence.
      Subsec. (a)(11). Pub. L. 106-113, Sec. 1000(a)(9) [title I, Sec.
    1005(d)], added par. (11).
      Subsec. (a)(12). Pub. L. 106-113, Sec. 1000(a)(9) [title I, Sec.
    1007(3)], as amended by Pub. L. 107-273, Sec. 13209(1)(B), added
    par. (12).
      Subsec. (b)(1)(B)(ii). Pub. L. 106-113, Sec. 1000(a)(9) [title I,
    Sec. 1006(b)], as amended by Pub. L. 107-273, Sec. 13209(2),
    inserted "or the Public Broadcasting Service satellite feed" after
    "network station".
      Subsec. (c)(4), (5). Pub. L. 106-113, Sec. 1000(a)(9) [title I,
    Sec. 1004], added pars. (4) and (5).
      Subsec. (d)(2). Pub. L. 106-113, Sec. 1000(a)(9) [title I, Sec.
    1008(b)], substituted a semicolon for the period at end of subpar.
    (B) and inserted concluding provisions.
      Subsec. (d)(9). Pub. L. 106-113, Sec. 1000(a)(9) [title I, Sec.
    1006(c)(1)], reenacted heading without change and amended text
    generally. Prior to amendment, text read as follows: "The term
    'superstation' means a television broadcast station, other than a
    network station, licensed by the Federal Communications Commission
    that is secondarily transmitted by a satellite carrier."
      Subsec. (d)(10). Pub. L. 106-113, Sec. 1000(a)(9) [title I, Sec.
    1005(a)(1)], added par. (10) and struck out heading and text of
    former par. (10). Text read as follows: "The term 'unserved
    household', with respect to a particular television network, means
    a household that - 
        "(A) cannot receive, through the use of a conventional outdoor
      rooftop receiving antenna, an over-the-air signal of grade B
      intensity (as defined by the Federal Communications Commission)
      of a primary network station affiliated with that network, and
        "(B) has not, within 90 days before the date on which that
      household subscribes, either initially or on renewal, to receive
      secondary transmissions by a satellite carrier of a network
      station affiliated with that network, subscribed to a cable
      system that provides the signal of a primary network station
      affiliated with that network."
      Subsec. (d)(11). Pub. L. 106-113, Sec. 1000(a)(9) [title I, Sec.
    1005(e)], reenacted heading without change and amended text
    generally. Prior to amendment, text read as follows: "The term
    'local market' means the area encompassed within a network
    station's predicted Grade B contour as that contour is defined by
    the Federal Communications Commission."
      Subsec. (d)(12). Pub. L. 106-113, Sec. 1000(a)(9) [title I, Sec.
    1006(c)(2)], added par. (12).
      Subsec. (e). Pub. L. 106-113, Sec. 1000(a)(9) [title I, Sec.
    1005(c)], amended heading and text of subsec. (e) generally. Prior
    to amendment, text read as follows: "No provision of section 111 of
    this title or any other law (other than this section) shall be
    construed to contain any authorization, exemption, or license
    through which secondary transmissions by satellite carrier for
    private home viewing of programming contained in a primary
    transmission made by a superstation or a network station may be
    made without obtaining the consent of the copyright owner."
      1997 - Subsec. (a)(5)(C). Pub. L. 105-80, Sec. 1(3), amended Pub.
    L. 103-369, Sec. 2(5)(A). See 1994 Amendment note below.
      Subsec. (b)(1)(B)(i). Pub. L. 105-80, Sec. 1(1), amended Pub. L.
    103-369, Sec. 2(3)(A). See 1994 Amendment note below.
      Subsec. (c)(1). Pub. L. 105-80, Sec. 12(a)(8), which directed
    substitution of "unless" for "until unless" before "a royalty fee",
    could not be executed because "until" did not appear subsequent to
    amendment by Pub. L. 103-369, Sec. 2(4)(A), as amended by Pub. L.
    105-80, Sec. 1(2). See 1994 Amendment note below.
      Pub. L. 105-80, Sec. 1(2), amended Pub. L. 103-369, Sec. 2(4)(A).
    See 1994 Amendment note below.
      Subsec. (c)(2)(A), (D), (3)(A)-(C). Pub. L. 105-80, Sec. 1(2),
    amended Pub. L. 103-369, Sec. 2(4). See 1994 Amendment notes below.
      1995 - Subsec. (a)(1), (2)(A). Pub. L. 104-39 inserted "and
    section 114(d)" after "of this subsection".
      1994 - Subsec. (a)(2)(C). Pub. L. 103-369, Sec. 2(1), struck out
    "90 days after the effective date of the Satellite Home Viewer Act
    of 1988, or" before "90 days after commencing", "whichever is
    later," before "submit to the network that owns", and ", on or
    after the effective date of the Satellite Home Viewer Act of 1988,"
    after "Register of Copyrights", and inserted "name and" after
    "identifying (by" in two places.
      Subsec. (a)(5)(C). Pub. L. 103-369, Sec. 2(5)(A), as amended by
    Pub. L. 105-80, Sec. 1(3), substituted "November 16, 1988" for "the
    date of the enactment of the Satellite Home Viewer Act of 1988".
      Subsec. (a)(5)(D). Pub. L. 103-369, Sec. 2(2), added subpar. (D).
      Subsec. (a)(8) to (10). Pub. L. 103-369, Sec. 2(5)(B), added
    pars. (8) to (10).
      Subsec. (b)(1)(B)(i). Pub. L. 103-369, Sec. 2(3)(A), as amended
    by Pub. L. 105-80, Sec. 1(1), substituted "17.5 cents per
    subscriber in the case of superstations that as retransmitted by
    the satellite carrier include any program which, if delivered by
    any cable system in the United States, would be subject to the
    syndicated exclusivity rules of the Federal Communications
    Commission, and 14 cents per subscriber in the case of
    superstations that are syndex-proof as defined in section 258.2 of
    title 37, Code of Federal Regulations" for "12 cents".
      Subsec. (b)(1)(B)(ii). Pub. L. 103-369, Sec. 2(3)(B), substituted
    "6 cents" for "3 cents".
      Subsec. (c)(1). Pub. L. 103-369, Sec. 2(4)(A), as amended by Pub.
    L. 105-80, Sec. 1(2), struck out "until December 31, 1992," before
    "unless a royalty fee", substituted "paragraph (2) or (3) of this
    subsection" for "paragraph (2), (3), or (4) of this subsection",
    and struck out at end "After that date, the fee shall be determined
    either in accordance with the voluntary negotiation procedure
    specified in paragraph (2) or in accordance with the compulsory
    arbitration procedure specified in paragraphs (3) and (4)."
      Subsec. (c)(2)(A). Pub. L. 103-369, Sec. 2(4)(B)(i), as amended
    by Pub. L. 105-80, Sec. 1(2), substituted "July 1, 1996" for "July
    1, 1991".
      Subsec. (c)(2)(D). Pub. L. 103-369, Sec. 2(4)(B)(ii), as amended
    by Pub. L. 105-80, Sec. 1(2), substituted "December 31, 1999, or in
    accordance with the terms of the agreement, whichever is later" for
    "December 31, 1994".
      Subsec. (c)(3)(A). Pub. L. 103-369, Sec. 2(4)(C)(i), as amended
    by Pub. L. 105-80, Sec. 1(2), substituted "January 1, 1997" for
    "December 31, 1991".
      Subsec. (c)(3)(B). Pub. L. 103-369, Sec. 2(4)(C)(ii), as amended
    by Pub. L. 105-80, Sec. 1(2), amended subpar. (B) generally. Prior
    to amendment, subpar. (B) read as follows:
      "(B) Factors for determining royalty fees. - In determining
    royalty fees under this paragraph, the copyright arbitration
    royalty panel appointed under chapter 8 shall consider the
    approximate average cost to a cable system for the right to
    secondarily transmit to the public a primary transmission made by a
    broadcast station, the fee established under any voluntary
    agreement filed with the Copyright Office in accordance with
    paragraph (2), and the last fee proposed by the parties, before
    proceedings under this paragraph, for the secondary transmission of
    superstations or network stations for private home viewing. The fee
    shall also be calculated to achieve the following objectives:
        "(i) To maximize the availability of creative works to the
      public.
        "(ii) To afford the copyright owner a fair return for his or
      her creative work and the copyright user a fair income under
      existing economic conditions.
        "(iii) To reflect the relative roles of the copyright owner and
      the copyright user in the product made available to the public
      with respect to relative creative contribution, technological
      contribution, capital investment, cost, risk, and contribution to
      the opening of new markets for creative expression and media for
      their communication.
        "(iv) To minimize any disruptive impact on the structure of the
      industries involved and on generally prevailing industry
      practices."
      Subsec. (c)(3)(C). Pub. L. 103-369, Sec. 2(4)(C)(iii), as amended
    by Pub. L. 105-80, Sec. 1(2), inserted before period at end "or
    July 1, 1997, whichever is later".
      Subsec. (d)(2). Pub. L. 103-369, Sec. 2(6)(A), amended par. (2)
    generally. Prior to amendment, par. (2) read as follows:
      "(2) Network station. - The term 'network station' has the
    meaning given that term in section 111(f) of this title, and
    includes any translator station or terrestrial satellite station
    that rebroadcasts all or substantially all of the programming
    broadcast by a network station."
      Subsec. (d)(6). Pub. L. 103-369, Sec. 2(6)(B), inserted "and
    operates in the Fixed-Satellite Service under part 25 of title 47
    of the Code of Federal Regulations or the Direct Broadcast
    Satellite Service under part 100 of title 47 of the Code of Federal
    Regulations" after "Federal Communications Commission".
      Subsec. (d)(11). Pub. L. 103-369, Sec. 2(6)(C), added par. (11).
      1993 - Subsec. (b)(1). Pub. L. 103-198, Sec. 5(1)(A), struck out
    ", after consultation with the Copyright Royalty Tribunal," in
    introductory provisions after "Register shall" and in subpar. (A)
    after "Copyrights may".
      Subsec. (b)(2), (3). Pub. L. 103-198, Sec. 5(1)(B), (C),
    substituted "Librarian of Congress" for "Copyright Royalty
    Tribunal".
      Subsec. (b)(4). Pub. L. 103-198, Sec. 5(1)(D), in subpar. (A),
    substituted "Librarian of Congress" for "Copyright Royalty
    Tribunal" after "claim with the" and for "Tribunal" after
    "requirements that the", in subpar. (B), substituted "Librarian of
    Congress" for "Copyright Royalty Tribunal" before "shall determine"
    and for "Tribunal" wherever else appearing, and substituted
    "convene a copyright arbitration royalty panel" for "conduct a
    proceeding", and in subpar. (C), substituted "Librarian of
    Congress" for "Copyright Royalty Tribunal".
      Subsec. (c). Pub. L. 103-198, Sec. 5(2)(A), substituted
    "Adjustment" for "Determination" in heading.
      Subsec. (c)(2). Pub. L. 103-198, Sec. 5(2)(B), substituted
    "Librarian of Congress" for "Copyright Royalty Tribunal" in
    subpars. (A) and (B).
      Subsec. (c)(3)(A). Pub. L. 103-198, Sec. 5(2)(C)(i), substituted
    "Librarian of Congress" for "Copyright Royalty Tribunal" and
    substituted last sentence for former last sentence which read as
    follows: "Such notice shall include the names and qualifications of
    potential arbitrators chosen by the Tribunal from a list of
    available arbitrators obtained from the American Arbitration
    Association or such similar organization as the Tribunal shall
    select."
      Subsec. (c)(3)(B). Pub. L. 103-198, Sec. 5(2)(C)(ii), (iii),
    redesignated subpar. (D) as (B), substituted "copyright arbitration
    royalty panel appointed under chapter 8" for "Arbitration Panel" in
    introductory provisions, and struck out former subpar. (B) which
    provided for the selection of an Arbitration Panel.
      Subsec. (c)(3)(C). Pub. L. 103-198, Sec. 5(2)(C)(ii), (v),
    redesignated subpar. (G) as (C), amended subpar. generally,
    substituting provisions relating to period during which decision of
    arbitration panel or order of Librarian of Congress becomes
    effective for provisions relating to period during which decision
    of Arbitration Panel or order of Copyright Royalty Tribunal became
    effective, and struck out former subpar. (C) which related to
    proceedings in arbitration.
      Subsec. (c)(3)(D). Pub. L. 103-198, Sec. 5(2)(C)(vi),
    redesignated subpar. (H) as (D) and substituted "referred to in
    subparagraph (C)" for "adopted or ordered under subparagraph (F)".
    Former subpar. (D) redesignated (B).
      Subsec. (c)(3)(E) to (H). Pub. L. 103-198, Sec. 5(2)(C)(iv)-
    (vi)(I), struck out subpar. (E) which required the Arbitration
    Panel to report to the Copyright Royalty Tribunal not later than 60
    days after publication of notice initiating an arbitration
    proceeding, struck out subpar. (F) which required action by the
    Tribunal within 60 days after receiving the report by the Panel,
    and redesignated subpars. (G) and (H) as (C) and (D), respectively.
      Subsec. (c)(4). Pub. L. 103-198, Sec. 5(2)(D), struck out par.
    (4) which established procedures for judicial review of decisions
    of the Copyright Royalty Tribunal.
                     EFFECTIVE DATE OF 2006 AMENDMENT                 
      Amendment by Pub. L. 109-303 effective as if included in the
    Copyright Royalty and Distribution Reform Act of 2004, Pub. L. 108-
    419, see section 6 of Pub. L. 109-303, set out as a note under
    section 111 of this title.
                     EFFECTIVE DATE OF 2004 AMENDMENT                 
      Amendment by Pub. L. 108-419 effective 6 months after Nov. 30,
    2004, subject to transition provisions, see section 6 of Pub. L.
    108-419, set out as an Effective Date; Transition Provisions note
    under section 801 of this title.
                     EFFECTIVE DATE OF 1999 AMENDMENT                 
      Amendment by section 1000(a)(9) [title I, Secs. 1004, 1006] of
    Pub. L. 106-113 effective July 1, 1999, and amendment by section
    1000(a)(9) [title I, Secs. 1005, 1007, 1008(b), 1011(b)(2), (c)] of
    Pub. L. 106-113 effective Nov. 29, 1999, see section 1000(a)(9)
    [title I, Sec. 1012] of Pub. L. 106-113, set out as a note under
    section 101 of this title.
                     EFFECTIVE DATE OF 1997 AMENDMENT                 
      Section 13 of Pub. L. 105-80 provided that:
      "(a) In General. - Except as provided in subsections (b) and (c),
    the amendments made by this Act [amending this section, sections
    101, 104A, 108 to 110, 114 to 116, 303, 304, 405, 407, 411, 504,
    509, 601, 708, 801 to 803, 909, 910, 1006, and 1007 of this title,
    and section 2319 of Title 18, Crimes and Criminal Procedure, and
    amending provisions set out as a note under section 914 of this
    title] shall take effect on the date of the enactment of this Act
    [Nov. 13, 1997].
      "(b) Satellite Home Viewer Act. - The amendments made by section
    1 [amending this section] shall be effective as if enacted as part
    of the Satellite Home Viewer Act of 1994 (Public Law 103-369).
      "(c) Technical Amendment. - The amendment made by section
    12(b)(1) [amending provisions set out as a note under section 914
    of this title] shall be effective as if enacted on November 9,
    1987."
                     EFFECTIVE DATE OF 1995 AMENDMENT                 
      Amendment by Pub. L. 104-39 effective 3 months after Nov. 1,
    1995, see section 6 of Pub. L. 104-39, set out as a note under
    section 101 of this title.
             EFFECTIVE AND TERMINATION DATES OF 1994 AMENDMENT         
      Section 6 of Pub. L. 103-369 provided that:
      "(a) In General. - Except as provided in subsections (b) and (d),
    this Act [amending this section and section 111 of this title,
    enacting provisions set out as notes under this section and section
    101 of this title, and repealing provisions set out as a note under
    this section] and the amendments made by this Act take effect on
    the date of the enactment of this Act [Oct. 18, 1994].
      "(b) Burden of Proof Provisions. - The provisions of section
    119(a)(5)(D) of title 17, United States Code (as added by section
    2(2) of this Act) relating to the burden of proof of satellite
    carriers, shall take effect on January 1, 1997, with respect to
    civil actions relating to the eligibility of subscribers who
    subscribed to service as an unserved household before the date of
    the enactment of this Act.
      "(c) Transitional Signal Intensity Measurement Procedures. - The
    provisions of section 119(a)(8) of title 17, United States Code (as
    added by section 2(5) of this Act), relating to transitional signal
    intensity measurements, shall cease to be effective on December 31,
    1996.
      "(d) Local Service Area of a Primary Transmitter. - The amendment
    made by section 3(b) [amending section 111 of this title], relating
    to the definition of the local service area of a primary
    transmitter, shall take effect on July 1, 1994."
                              EFFECTIVE DATE                          
      Section 206 of title II of Pub. L. 100-667 provided that: "This
    title and the amendments made by this title [enacting this section
    and sections 612 and 613 of Title 47, Telegraphs, Telephones, and
    Radiotelegraphs, amending sections 111, 501, 801, and 804 of this
    title and section 605 of Title 47, and enacting provisions set out
    as notes under this section and section 101 of this title] take
    effect on January 1, 1989, except that the authority of the
    Register of Copyrights to issue regulations pursuant to section
    119(b)(1) of title 17, United States Code, as added by section 202
    of this Act, takes effect on the date of the enactment of this Act
    [Nov. 16, 1988]."
      Section 207 of title II of Pub. L. 100-667 provided that this
    title and the amendments made by this title (other than the
    amendments made by section 205 [amending section 605 of Title 47])
    cease to be effective on Dec. 31, 1994, prior to repeal by Pub. L.
    103-369, Sec. 4(b), Oct. 18, 1994, 108 Stat. 3481.
                          TERMINATION OF SECTION                      
      Section 4(a) of Pub. L. 103-369, as amended by Pub. L. 106-113,
    div. B, Sec. 1000(a)(9) [title I, Sec. 1003], Nov. 29, 1999, 113
    Stat. 1536, 1501A-527; Pub. L. 108-447, div. J, title IX [title I,
    Sec. 101(a)], Dec. 8, 2004, 118 Stat. 3394, provided that: "Section
    119 of title 17, United States Code, as amended by section 2 of
    this Act, ceases to be effective on December 31, 2009."
                    REMOVAL OF INCONSISTENT PROVISIONS                
      Pub. L. 109-303, Sec. 4(g), Oct. 6, 2006, 120 Stat. 1483,
    provided that: "The amendments contained in subsection (h) of
    section 5 of the Copyright Royalty and Distribution Reform Act of
    2004 [Pub. L. 108-419, amending this section] shall be deemed never
    to have been enacted."
                       EFFECT ON CERTAIN PROCEEDINGS                   
      Pub. L. 108-447, div. J, title IX [title I, Sec. 106], Dec. 8,
    2004, 118 Stat. 3406, provided that: "Nothing in this title [see
    Short Title of 2004 Amendment note set out under section 101 of
    this title] shall modify any remedy imposed on a party that is
    required by the judgment of a court in any action that was brought
    before May 1, 2004, against that party for a violation of section
    119 of title 17, United States Code."
                      APPLICABILITY OF 1994 AMENDMENT                  
      Section 5 of Pub. L. 103-369 provided that: "The amendments made
    by this section apply only to section 119 of title 17, United
    States Code."
-FOOTNOTE-               
    (!1) So in original. Heading was not amended to conform to
         amendments by Pub. L. 108-447.
    (!2) So in original. Probably should be "are".
    (!3) So in original. The word "to" probably should not appear.
    (!4) So in original. Probably should be followed by "station".
-End-
-CITE-
    17 USC Sec. 120                                             01/03/2007
-EXPCITE-
    TITLE 17 - COPYRIGHTS
    CHAPTER 1 - SUBJECT MATTER AND SCOPE OF COPYRIGHT
-HEAD-
    Sec. 120. Scope of exclusive rights in architectural works
-STATUTE-
      (a) Pictorial Representations Permitted. - The copyright in an
    architectural work that has been constructed does not include the
    right to prevent the making, distributing, or public display of
    pictures, paintings, photographs, or other pictorial
    representations of the work, if the building in which the work is
    embodied is located in or ordinarily visible from a public place.
      (b) Alterations to and Destruction of Buildings. -
    Notwithstanding the provisions of section 106(2), the owners of a
    building embodying an architectural work may, without the consent
    of the author or copyright owner of the architectural work, make or
    authorize the making of alterations to such building, and destroy
    or authorize the destruction of such building.
-SOURCE-
    (Added Pub. L. 101-650, title VII, Sec. 704(a), Dec. 1, 1990, 104
    Stat. 5133.)
-MISC1-
                              EFFECTIVE DATE                          
      Section applicable to any architectural work created on or after
    Dec. 1, 1990, and any architectural work, that, on Dec. 1, 1990, is
    unconstructed and embodied in unpublished plans or drawings, except
    that protection for such architectural work under this title
    terminates on Dec. 31, 2002, unless the work is constructed by that
    date, see section 706 of Pub. L. 101-650, set out as an Effective
    Date of 1990 Amendment note under section 101 of this title.
-End-
-CITE-
    17 USC Sec. 121                                             01/03/2007
-EXPCITE-
    TITLE 17 - COPYRIGHTS
    CHAPTER 1 - SUBJECT MATTER AND SCOPE OF COPYRIGHT
-HEAD-
    Sec. 121. Limitations on exclusive rights: Reproduction for blind
      or other people with disabilities
-STATUTE-
      (a) Notwithstanding the provisions of section 106, it is not an
    infringement of copyright for an authorized entity to reproduce or
    to distribute copies or phonorecords of a previously published,
    nondramatic literary work if such copies or phonorecords are
    reproduced or distributed in specialized formats exclusively for
    use by blind or other persons with disabilities.
      (b)(1) Copies or phonorecords to which this section applies shall
    - 
        (A) not be reproduced or distributed in a format other than a
      specialized format exclusively for use by blind or other persons
      with disabilities;
        (B) bear a notice that any further reproduction or distribution
      in a format other than a specialized format is an infringement;
      and
        (C) include a copyright notice identifying the copyright owner
      and the date of the original publication.
      (2) The provisions of this subsection shall not apply to
    standardized, secure, or norm-referenced tests and related testing
    material, or to computer programs, except the portions thereof that
    are in conventional human language (including descriptions of
    pictorial works) and displayed to users in the ordinary course of
    using the computer programs.
      (c) Notwithstanding the provisions of section 106, it is not an
    infringement of copyright for a publisher of print instructional
    materials for use in elementary or secondary schools to create and
    distribute to the National Instructional Materials Access Center
    copies of the electronic files described in sections 612(a)(23)(C),
    613(a)(6), and section 674(e) of the Individuals with Disabilities
    Education Act that contain the contents of print instructional
    materials using the National Instructional Material Accessibility
    Standard (as defined in section 674(e)(3) of that Act), if - 
        (1) the inclusion of the contents of such print instructional
      materials is required by any State educational agency or local
      educational agency;
        (2) the publisher had the right to publish such print
      instructional materials in print formats; and
        (3) such copies are used solely for reproduction or
      distribution of the contents of such print instructional
      materials in specialized formats.
      (d) For purposes of this section, the term - 
        (1) "authorized entity" means a nonprofit organization or a
      governmental agency that has a primary mission to provide
      specialized services relating to training, education, or adaptive
      reading or information access needs of blind or other persons
      with disabilities;
        (2) "blind or other persons with disabilities" means
      individuals who are eligible or who may qualify in accordance
      with the Act entitled "An Act to provide books for the adult
      blind", approved March 3, 1931 (2 U.S.C. 135a; 46 Stat. 1487) to
      receive books and other publications produced in specialized
      formats;
        (3) "print instructional materials" has the meaning given under
      section 674(e)(3)(C) of the Individuals with Disabilities
      Education Act; and
        (4) "specialized formats" means - 
          (A) braille, audio, or digital text which is exclusively for
        use by blind or other persons with disabilities; and
          (B) with respect to print instructional materials, includes
        large print formats when such materials are distributed
        exclusively for use by blind or other persons with
        disabilities.
-SOURCE-
    (Added Pub. L. 104-197, title III, Sec. 316(a), Sept. 16, 1996, 110
    Stat. 2416; amended Pub. L. 106-379, Sec. 3(b), Oct. 27, 2000, 114
    Stat. 1445; Pub. L. 107-273, div. C, title III, Sec. 13210(3)(A),
    Nov. 2, 2002, 116 Stat. 1909; Pub. L. 108-446, title III, Sec. 306,
    Dec. 3, 2004, 118 Stat. 2807.)
-REFTEXT-
                            REFERENCES IN TEXT                        
      Sections 612, 613, and 674 of the Individuals with Disabilities
    Education Act, referred to in subsecs. (c) and (d)(3), are
    classified to sections 1412, 1413, and 1474, respectively, of Title
    20, Education.
      The Act approved March 3, 1931, referred to in subsec. (d)(2), is
    act Mar. 3, 1931, ch. 400, 46 Stat. 1487, as amended, which is
    classified generally to sections 135a and 135b of Title 2, The
    Congress. For complete classification of this Act to the Code, see
    Tables.
-MISC1-
                                AMENDMENTS                            
      2004 - Subsec. (c). Pub. L. 108-446, Sec. 306(2), added subsec.
    (c). Former subsec. (c) redesignated (d).
      Subsec. (d). Pub. L. 108-446, Sec. 306(1), redesignated subsec.
    (c) as (d).
      Subsec. (d)(3), (4). Pub. L. 108-446, Sec. 306(3), added pars.
    (3) and (4) and struck out former par. (3) which read as follows: "
    'specialized formats' means braille, audio, or digital text which
    is exclusively for use by blind or other persons with
    disabilities."
      2002 - Pub. L. 107-273 substituted "Reproduction" for
    "reproduction" in section catchline.
      2000 - Subsec. (a). Pub. L. 106-379 substituted "section 106" for
    "sections 106 and 710".
-End-
-CITE-
    17 USC Sec. 122                                             01/03/2007
-EXPCITE-
    TITLE 17 - COPYRIGHTS
    CHAPTER 1 - SUBJECT MATTER AND SCOPE OF COPYRIGHT
-HEAD-
    Sec. 122. Limitations on exclusive rights: Secondary transmissions
      by satellite carriers within local markets
-STATUTE-
      (a) Secondary Transmissions of Television Broadcast Stations by
    Satellite Carriers. - A secondary transmission of a performance or
    display of a work embodied in a primary transmission of a
    television broadcast station into the station's local market shall
    be subject to statutory licensing under this section if - 
        (1) the secondary transmission is made by a satellite carrier
      to the public;
        (2) with regard to secondary transmissions, the satellite
      carrier is in compliance with the rules, regulations, or
      authorizations of the Federal Communications Commission governing
      the carriage of television broadcast station signals; and
        (3) the satellite carrier makes a direct or indirect charge for
      the secondary transmission to - 
          (A) each subscriber receiving the secondary transmission; or
          (B) a distributor that has contracted with the satellite
        carrier for direct or indirect delivery of the secondary
        transmission to the public.
      (b) Reporting Requirements. - 
        (1) Initial lists. - A satellite carrier that makes secondary
      transmissions of a primary transmission made by a network station
      under subsection (a) shall, within 90 days after commencing such
      secondary transmissions, submit to the network that owns or is
      affiliated with the network station a list identifying (by name
      in alphabetical order and street address, including county and
      zip code) all subscribers to which the satellite carrier makes
      secondary transmissions of that primary transmission under
      subsection (a).
        (2) Subsequent lists. - After the list is submitted under
      paragraph (1), the satellite carrier shall, on the 15th of each
      month, submit to the network a list identifying (by name in
      alphabetical order and street address, including county and zip
      code) any subscribers who have been added or dropped as
      subscribers since the last submission under this subsection.
        (3) Use of subscriber information. - Subscriber information
      submitted by a satellite carrier under this subsection may be
      used only for the purposes of monitoring compliance by the
      satellite carrier with this section.
        (4) Requirements of networks. - The submission requirements of
      this subsection shall apply to a satellite carrier only if the
      network to which the submissions are to be made places on file
      with the Register of Copyrights a document identifying the name
      and address of the person to whom such submissions are to be
      made. The Register of Copyrights shall maintain for public
      inspection a file of all such documents.
      (c) No Royalty Fee Required. - A satellite carrier whose
    secondary transmissions are subject to statutory licensing under
    subsection (a) shall have no royalty obligation for such secondary
    transmissions.
      (d) Noncompliance With Reporting and Regulatory Requirements. -
    Notwithstanding subsection (a), the willful or repeated secondary
    transmission to the public by a satellite carrier into the local
    market of a television broadcast station of a primary transmission
    embodying a performance or display of a work made by that
    television broadcast station is actionable as an act of
    infringement under section 501, and is fully subject to the
    remedies provided under sections 502 through 506 and 509, if the
    satellite carrier has not complied with the reporting requirements
    of subsection (b) or with the rules, regulations, and
    authorizations of the Federal Communications Commission concerning
    the carriage of television broadcast signals.
      (e) Willful Alterations. - Notwithstanding subsection (a), the
    secondary transmission to the public by a satellite carrier into
    the local market of a television broadcast station of a performance
    or display of a work embodied in a primary transmission made by
    that television broadcast station is actionable as an act of
    infringement under section 501, and is fully subject to the
    remedies provided by sections 502 through 506 and sections 509 and
    510, if the content of the particular program in which the
    performance or display is embodied, or any commercial advertising
    or station announcement transmitted by the primary transmitter
    during, or immediately before or after, the transmission of such
    program, is in any way willfully altered by the satellite carrier
    through changes, deletions, or additions, or is combined with
    programming from any other broadcast signal.
      (f) Violation of Territorial Restrictions on Statutory License
    for Television Broadcast Stations. - 
        (1) Individual violations. - The willful or repeated secondary
      transmission to the public by a satellite carrier of a primary
      transmission embodying a performance or display of a work made by
      a television broadcast station to a subscriber who does not
      reside in that station's local market, and is not subject to
      statutory licensing under section 119 or a private licensing
      agreement, is actionable as an act of infringement under section
      501 and is fully subject to the remedies provided by sections 502
      through 506 and 509, except that - 
          (A) no damages shall be awarded for such act of infringement
        if the satellite carrier took corrective action by promptly
        withdrawing service from the ineligible subscriber; and
          (B) any statutory damages shall not exceed $5 for such
        subscriber for each month during which the violation occurred.
        (2) Pattern of violations. - If a satellite carrier engages in
      a willful or repeated pattern or practice of secondarily
      transmitting to the public a primary transmission embodying a
      performance or display of a work made by a television broadcast
      station to subscribers who do not reside in that station's local
      market, and are not subject to statutory licensing under section
      119 or a private licensing agreement, then in addition to the
      remedies under paragraph (1) - 
          (A) if the pattern or practice has been carried out on a
        substantially nationwide basis, the court - 
            (i) shall order a permanent injunction barring the
          secondary transmission by the satellite carrier of the
          primary transmissions of that television broadcast station
          (and if such television broadcast station is a network
          station, all other television broadcast stations affiliated
          with such network); and
            (ii) may order statutory damages not exceeding $250,000 for
          each 6-month period during which the pattern or practice was
          carried out; and
          (B) if the pattern or practice has been carried out on a
        local or regional basis with respect to more than one
        television broadcast station, the court - 
            (i) shall order a permanent injunction barring the
          secondary transmission in that locality or region by the
          satellite carrier of the primary transmissions of any
          television broadcast station; and
            (ii) may order statutory damages not exceeding $250,000 for
          each 6-month period during which the pattern or practice was
          carried out.
      (g) Burden of Proof. - In any action brought under subsection
    (f), the satellite carrier shall have the burden of proving that
    its secondary transmission of a primary transmission by a
    television broadcast station is made only to subscribers located
    within that station's local market or subscribers being served in
    compliance with section 119 or a private licensing agreement.
      (h) Geographic Limitations on Secondary Transmissions. - The
    statutory license created by this section shall apply to secondary
    transmissions to locations in the United States.
      (i) Exclusivity With Respect to Secondary Transmissions of
    Broadcast Stations by Satellite to Members of the Public. - No
    provision of section 111 or any other law (other than this section
    and section 119) shall be construed to contain any authorization,
    exemption, or license through which secondary transmissions by
    satellite carriers of programming contained in a primary
    transmission made by a television broadcast station may be made
    without obtaining the consent of the copyright owner.
      (j) Definitions. - In this section - 
        (1) Distributor. - The term "distributor" means an entity which
      contracts to distribute secondary transmissions from a satellite
      carrier and, either as a single channel or in a package with
      other programming, provides the secondary transmission either
      directly to individual subscribers or indirectly through other
      program distribution entities.
        (2) Local market. - 
          (A) In general. - The term "local market", in the case of
        both commercial and noncommercial television broadcast
        stations, means the designated market area in which a station
        is located, and - 
            (i) in the case of a commercial television broadcast
          station, all commercial television broadcast stations
          licensed to a community within the same designated market
          area are within the same local market; and
            (ii) in the case of a noncommercial educational television
          broadcast station, the market includes any station that is
          licensed to a community within the same designated market
          area as the noncommercial educational television broadcast
          station.
          (B) County of license. - In addition to the area described in
        subparagraph (A), a station's local market includes the county
        in which the station's community of license is located.
          (C) Designated market area. - For purposes of subparagraph
        (A), the term "designated market area" means a designated
        market area, as determined by Nielsen Media Research and
        published in the 1999-2000 Nielsen Station Index Directory and
        Nielsen Station Index United States Television Household
        Estimates or any successor publication.
          (D) Certain areas outside of any designated market area. -
        Any census area, borough, or other area in the State of Alaska
        that is outside of a designated market area, as determined by
        Nielsen Media Research, shall be deemed to be part of one of
        the local markets in the State of Alaska. A satellite carrier
        may determine which local market in the State of Alaska will be
        deemed to be the relevant local market in connection with each
        subscriber in such census area, borough, or other area.
        (3) Network station; satellite carrier; secondary transmission.
      - The terms "network station", "satellite carrier", and
      "secondary transmission" have the meanings given such terms under
      section 119(d).
        (4) Subscriber. - The term "subscriber" means a person who
      receives a secondary transmission service from a satellite
      carrier and pays a fee for the service, directly or indirectly,
      to the satellite carrier or to a distributor.
        (5) Television broadcast station. - The term "television
      broadcast station" - 
          (A) means an over-the-air, commercial or noncommercial
        television broadcast station licensed by the Federal
        Communications Commission under subpart E of part 73 of title
        47, Code of Federal Regulations, except that such term does not
        include a low-power or translator television station; and
          (B) includes a television broadcast station licensed by an
        appropriate governmental authority of Canada or Mexico if the
        station broadcasts primarily in the English language and is a
        network station as defined in section 119(d)(2)(A).
-SOURCE-
    (Added Pub. L. 106-113, div. B, Sec. 1000(a)(9) [title I, Sec.
    1002(a)], Nov. 29, 1999, 113 Stat. 1536, 1501A-523; amended Pub. L.
    107-273, div. C, title III, Sec. 13210(2)(A), Nov. 2, 2002, 116
    Stat. 1909; Pub. L. 108-447, div. J, title IX [title I, Sec.
    111(b)], Dec. 8, 2004, 118 Stat. 3409.)
-MISC1-
                                AMENDMENTS                            
      2004 - Subsec. (j)(2)(D). Pub. L. 108-447 added subpar. (D).
      2002 - Pub. L. 107-273 substituted "rights: Secondary" for
    "rights; secondary" in section catchline.
                              EFFECTIVE DATE                          
      Section effective July 1, 1999, see section 1000(a)(9) [title I,
    Sec. 1012] of Pub. L. 106-113, set out as an Effective Date of 1999
    Amendment note under section 101 of this title.
-End-