Copyright Law of the United States of America
by
The US Copyright Office
Part 1 out of 7
Prepared by George Davis.
Copyright Law of the United States of America
and
Related Laws Contained in Title 17 of the *United States Code*
Circular 92
------------------------------------------------------------------------
Contents
+ The Constitutional Provision Respecting Copyright
+ Preface
+ Chapter 1 - Subject Matter and Scope of Copyright
+ Chapter 2 - Copyright Ownership and Transfer
+ Chapter 3 - Duration of Copyright
+ Chapter 4 - Copyright Notice, Deposit, and Registration
+ Chapter 5 - Copyright Infringement and Remedies
+ Chapter 6 - Manufacturing Requirements and Importation
+ Chapter 7 - Copyright Office
+ Chapter 8 - Copyright Arbitration Royalty Panels
+ Chapter 9 - Protection of Semiconductor Chip Products
+ Chapter 10 - Digital Audio Recording Devices and Media
+ Chapter 11 - Sound Recordings and Music Videos
+ Chapter 12 - Copyright Protection and Management Systems
+ Chapter 13 - Protection of Original Designs
+ Appendix I. Transitional and Supplementary Provisions of the
Copyright Act of 1976
+ Appendix II. Berne Convention Implementation Act of 1988
+ Appendix III. Uruguay Round Agreements Act
+ Appendix IV. GATT/Trade-Related Aspects of Intellectual Property
Rights (TRIPs) Agreement, Part II, Section 6:
Layout-Designs (Topographies) of Integrated Circuits
+ Appendix V. Additional Provisions of the Digital Millennium
Copyright Act
+ Appendix VI. Definition of "Berne Convention Work"
+ Appendix VII. Selected Provisions of the U.S. Code Relating to
Copyright
------------------------------------------------------------------------
The Constitutional Provision Respecting Copyright
The Congress shall have Power ... To promote the Progress of Science and
useful Arts, by securing for limited Times to Authors and Inventors the
exclusive Right to their respective Writings and Discoveries
(United States Constitution, Article I, Section 8)
------------------------------------------------------------------------
Preface
This volume contains the text of title 17 of the *United States Code*,
including all amendments enacted through the end of the second session
of the 106th Congress in 2000. It includes the Copyright Act of 1976 and
all subsequent amendments to copyright law; the Semiconductor Chip
Protection Act of 1984, as amended; and the Vessel Hull Design
Protection Act, as amended. The Copyright Office is responsible for
registering claims under all three.
The United States copyright law is contained in chapters 1 through 8 and
10 through 12 of title 17 of the *United States Code.* The Copyright Act
of 1976, which provides the basic framework for the current copyright
law, was enacted on October 19, 1976 as Pub. L. No. 94-553, 90 Stat.
2541. Listed below in chronological order of their enactment are
subsequent amendments to copyright law.
Chapters 9 and 13 of title 17 contain statutory design protection that
is independent of copyright protection. Chapter 9 of title 17 is the
Semiconductor Chip Protection Act of 1984 (SCPA), as amended. On
November 8, 1984, the SCPA was enacted as title III of Pub. L. No.
98-620, 98 Stat. 3335, 3347. Chapter 13 of title 17 is the Vessel Hull
Design Protection Act (VHDPA). It was enacted on October 28, 1998 as
title V of the Digital Millennium Copyright Act (DMCA), Pub. L. No.
105-304, 112 Stat. 2860, 2905. Subsequent amendments to the SCPA and the
VHDPA are also included in the list below, in chronological order of
their enactment.
For transitional and supplementary copyright provisions that were
enacted as part of the Copyright Act of 1976 and the DMCA, but which do
not amend title 17, see the Appendix.
Statutory Enactments Contained in Title 17 of the *United States Code*
+ [Copyright Act of 1976], Pub. L. No. 94-553, 90 Stat. 2541 (for the
general revision of copyright law, title 17 of the *United States Code*,
and for other purposes), October 19, 1976.
+ Legislative Branch Appropriation Act, 1978, Pub. L. No. 95-94, 91
Stat. 653, 682 (amending Sec. 203 and 708, title 17, *United States Code*,
regarding the deposit of moneys by the Register of Copyrights in the
Treasury of the United States), enacted August 5, 1977.
+ [Copyright Amendments], Pub. L. No. 95-598, 92 Stat. 2549, 2676
(amending Sec. 201(e), title 17, *United States Code*, to permit
involuntary transfer under the Bankruptcy Law), enacted November 6, 1978.
+ [Copyright Amendments], Pub. L. No. 96-517, 94 Stat. 3015, 3028
(amending Sec. 101 and 117, title 17, *United States Code*, regarding
computer programs), enacted December 12, 1980.
+ Piracy and Counterfeiting Amendments Act of 1982, Pub. L. No.
97-180, 96 Stat. 91, 93 (amending Sec. 506(a), title 17, *United States
Code* and title 18 of the *United States Code*), enacted May 24, 1982.
+ [Copyright Amendments], Pub. L. No. 97-215, 96 Stat. 178 (amending
the manufacturing clause in chapter 6, title 17, *United States Code*),
enacted July 13, 1982.
+ [Copyright Amendments], Pub. L. No. 97-366, 96 Stat. 1759 (amending
Sec. 110 and Sec. 708, title 17, *United States Code*, regarding the
redesignation of registration fees as filing fees, and the exemption
from copyright liability of certain performances of nondramatic literary
or musical works), enacted October 25, 1982.
+ Record Rental Amendment of 1984, Pub. L. No. 98-450, 98 Stat. 1727
(amending Sec. 109 and Sec. 115, title 17, *United States Code*, with
respect to rental, lease or lending of sound recordings), enacted
October 4, 1984.
+ Semiconductor Chip Protection Act of 1984, title III of Pub. L. No.
98-620, 98 Stat. 3335, 3347 (adding chapter 9, title 17, *United States
Code*, to provide design protection for semiconductor chips), November
8, 1984.
+ [Copyright Amendments], Pub. L. No. 99-397, 100 Stat. 848 (amending
Sec. 111 and Sec. 801, title 17, *United States Code*, to clarify the
definition of the local service area of a primary transmitter in the
case of a low power television station), enacted on August 27, 1986.
+ [Amendments to the Semiconductor Chip Protection Act of 1984], Pub.
L. No. 100-159, 101 Stat. 899 (amending chapter 9, title 17, *United
States Code*, regarding protection extended to semiconductor chip
products of foreign entities), enacted November 9, 1987.
+ Berne Convention Implementation Act of 1988, Pub. L. No. 100-568,
102 Stat. 2853, enacted October 31, 1988. (See the Appendix for certain
provisions of this Act that do not amend title 17 of the *United States
Code.*)
+ [Copyright Amendments], Pub. L. No. 100-617, 102 Stat. 3194
(extending for an additional eight-year period certain provisions of
title 17, *United States Code*, relating to the rental of sound
recordings and for other purposes), enacted November 5, 1988.
+ Satellite Home Viewer Act of 1988, title II of Pub. L. No. 100-667,
102 Stat. 3935, 3949, enacted November 16, 1988.
+ Judicial Improvements and Access to Justice Act, Pub. L. No.
100-702, 102 Stat. 4642, 4672 (amending Sec. 912, title 17, *United States
Code*), enacted November 19, 1988.
+ Copyright Fees and Technical Amendments Act of 1989, Pub. L. No.
101-318, 104 Stat. 287, enacted on July 3, 1990.
+ Copyright Royalty Tribunal Reform and Miscellaneous Pay Act of 1989,
Pub. L. No. 101-319, 104 Stat. 290, enacted July 3, 1990.
+ Copyright Remedy Clarification Act, Pub. L. No. 101-553, 104 Stat.
2749, enacted November 15, 1990.
+ Visual Artists Rights Act of 1990, title VI of the Judicial
Improvements Act of 1990, Pub. L. No. 101-650, 104 Stat. 5089, 5128,
enacted December 1, 1990.
+ Architectural Works Copyright Protection Act, title VII of the
Judicial Improvements Act of 1990, Pub. L. No. 101-650, 104 Stat. 5089,
5133, enacted December 1, 1990.
+ Computer Software Rental Amendments Act of 1990, title VIII of the
Judicial Improvements Act of 1990, Pub. L. No. 101-650, 104 Stat 5089,
5134, enacted December 1, 1990.
+ Semiconductor International Protection Extension Act of 1991, Pub.
L. No. 102-64, 105 Stat. 320 (amending chapter 9, title 17, *United
States Code*, regarding protection extended to semiconductor chip
products of foreign entities), enacted June 28, 1991.
+ Copyright Amendments Act of 1992, Pub. L. No. 102-307, 106 Stat.
264, 272 (amending title 17 of the *United States Code*, by deleting
subsection 108(i) in its entirety), enacted June 26, 1992.
+ Copyright Renewal Act of 1992, title I of the Copyright Amendments
Act of 1992, Pub. L. No. 102-307, 106 Stat. 264, enacted June 26, 1992.
+ [Copyright Amendments], Pub. L. No. 102-492, 106 Stat. 3145
(amending Sec. 107, title 17, *United States Code*, regarding unpublished
works), enacted October 24, 1992.
+ [Copyright Amendments], Pub. L. No. 102-561, 106 Stat. 4233
(amending Sec. 2319, title 18, *United States Code*, regarding criminal
penalties for copyright infringement), enacted October 28, 1992.
+ Audio Home Recording Act of 1992, Pub. L. No. 102-563, 106 Stat.
4237 (amending title 17 of the *United States Code* by adding a new
chapter 10), enacted October 28, 1992.
+ North American Free Trade Agreement Implementation Act, Pub. L. No.
103-182, 107 Stat. 2057, 2114 and 2115 (amending Sec. 109, title 17,
*United States Code*, and adding a new Sec. 104A), enacted December 8,
1993.
+ Copyright Royalty Tribunal Reform Act of 1993, Pub. L. No. 103-198,
107 Stat. 2304 (amending, *inter alia*, chapter 8, title 17, *United
States Code*), enacted December 17, 1993.
+ Satellite Home Viewer Act of 1994, Pub. L. No. 103-369, 108 Stat.
3477 (amending, *inter alia*, Sec. 111 and Sec. 119, title 17, *United
States Code*, relating to the definition of a local service area of a
primary transmitter), enacted October 18, 1994.
+ Uruguay Round Agreements Act, Pub. L. No. 103-465, 108 Stat. 4809,
4973 (amending, *inter alia*, Sec. 104A, title 17, *United States Code*,
and adding a new chapter 11), enacted December 8, 1994. (See the
Appendix for the text of certain provisions of this Act that do not
amend title 17 of the *United States Code.*)
+ Digital Performance Right in Sound Recordings Act of 1995, Pub. L.
No. 104-39, 109 Stat. 336 (amending, *inter alia*, Sec. 114 and Sec. 115,
title 17, *United States Code*), enacted November 1, 1995.
+ Anticounterfeiting Consumer Protection Act of 1996, Pub. L. No.
104-153, 110 Stat. 1386, 1388 (amending Sec. 603(c), title 17, *United
States Code* and Sec. 2318, title 18, *United States Code*), enacted
July 2, 1996.
+ Legislative Branch Appropriations Act, 1997, Pub. L. No. 104-197,
110 Stat. 2394, 2416 (amending*, inter alia*, title 17 of the *United
States Code*, by adding a new Sec. 121 concerning the limitation on
exclusive copyrights for literary works in specialized format for the
blind and disabled), enacted September 16, 1996.
+ [Copyright Amendments and Amendments to the Semiconductor Chip
Protection Act of 1984], Pub. L. No. 105-80, 111 Stat. 1529 (making
technical amendments to certain provisions of title 17, *United States
Code*), enacted November 13, 1997.
+ No Electronic Theft (NET) Act, Pub. L. No. 105-147, 111 Stat. 2678,
enacted December 16, 1997.
+ Sonny Bono Copyright Term Extension Act, title I of Pub. L. No.
105-298, 112 Stat. 2827 (amending chapter 3, title 17, *United States
Code*, to extend the term of copyright protection for most works to life
plus 70 years), enacted October 27, 1998.
+ Fairness in Music Licensing Act of 1998, title II of Pub. L. No.
105-298, 112 Stat. 2827, 2830 (amending, *inter alia*, Sec. 110, title 17,
*United States Code*, and adding Sec. 513 to provide a music licensing
exemption for food service and drinking establishments), enacted October
27, 1998.
+ Digital Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat.
2860, 2887 (title IV amending Sec. 108, 112, 114, chapter 7 and chapter
8, title 17, *United States Code*), enacted October 28, 1998. (This Act
also contains four separate acts within titles I, II, III and V that
amended title 17 of the *United States Code.* These four acts are each
separately listed below. See the Appendix for additional provisions of
this Act that do not amend title 17 of the *United States Code.*)
+ WIPO Copyright and Performances and Phonograms Treaties
Implementation Act of 1998, title I of the Digital Millennium Copyright
Act, Pub. L. No. 105-304, 112 Stat. 2860, 2861 (amending title 17 of the
*United States Code*, *inter alia*, to add a new chapter 12 which
prohibits circumvention of copyright protection systems and provides
protection for copyright management information), enacted October 28,
1998.
+ Online Copyright Infringement Liability Limitation Act, title II of
the Digital Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat.
2860, 2877 (amending title 17 of the *United States Code*, to add a new
Sec. 512), enacted October 28, 1998.
+ Computer Maintenance Competition Assurance Act, title III of the
Digital Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat. 2860,
2886 (amending Sec. 117, title 17, *United States Code*), enacted October
28, 1998.
+ Vessel Hull Design Protection Act, title V of the Digital Millennium
Copyright Act, Pub. L. No. 105-304, 112 Stat. 2860, 2905 (adding chapter
13, title 17, *United States Code*, to provide design protection for
vessel hulls), enacted October 28, 1998.
+ [Copyright Amendments and Amendments to the Vessel Hull Design
Protection Act], Pub. L. No. 106-44, 113 Stat. 221 (making technical
corrections to title 17 of the *United States Code*), enacted August 5,
1999.
+ Satellite Home Viewer Improvement Act of 1999, title I of the
Intellectual Property and Communications Omnibus Reform Act of 1999,
Pub. L. No. 106-113, 113 Stat. 1501, app. I (amending chapters 1 and 5
of title 17 of the *United States Code* to replace the Satellite Home
Viewer Act of 1994 and amending chapters 12 and 13 of title 17), enacted
November 29, 1999.
+ Digital Theft Deterrence and Copyright Damages Improvement Act of
1999, Pub. L. No. 106-160, 113 Stat 1774, (amending chapter 5 of title
17 of the *United States Code* to increase statutory damages for
copyright infringement), enacted December 9, 1999.
+ Work Made for Hire and Copyright Corrections Act of 2000, Pub. L.
No. 106-379, 114 Stat. 1444 (amending the definition of work made for
hire in title 17 of the *United States Code*, amending chapter 7 of
title 17, including changing the language regarding Copyright Office
fees, and making other technical and conforming amendments to title 17),
enacted October 27, 2000.
------------------------------------------------------------------------
Chapter 1
Subject Matter and Scope of Copyright
+ 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
+ 117. Limitations on exclusive rights: Computer programs [1]
+ 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 market
Section 101. Definitions [2]
Except as otherwise provided in this title, as used in this title, the
following terms and their variant forms mean the following:
An "anonymous work" is a work on the copies or phonorecords of which no
natural person is identified as author.
An "architectural work" is the design of a building as embodied in any
tangible medium of expression, including a building, architectural
plans, or drawings. The work includes the overall form as well as the
arrangement and composition of spaces and elements in the design, but
does not include individual standard features. [3]
"Audiovisual works" are works that consist of a series of related images
which are intrinsically intended to be shown by the use of machines or
devices such as projectors, viewers, or electronic equipment, together
with accompanying sounds, if any, regardless of the nature of the
material objects, such as films or tapes, in which the works are
embodied.
The "Berne Convention" is the Convention for the Protection of Literary
and Artistic Works, signed at Berne, Switzerland, on September 9, 1886,
and all acts, protocols, and revisions thereto. [4]
The "best edition" of a work is the edition, published in the United
States at any time before the date of deposit, that the Library of
Congress determines to be most suitable for its purposes.
A person's "children" are that person's immediate offspring, whether
legitimate or not, and any children legally adopted by that person.
A "collective work" is a work, such as a periodical issue, anthology, or
encyclopedia, in which a number of contributions, constituting separate
and independent works in themselves, are assembled into a collective
whole.
A "compilation" is a work formed by the collection and assembling of
preexisting materials or of data that are selected, coordinated, or
arranged in such a way that the resulting work as a whole constitutes an
original work of authorship. The term "compilation" includes collective
works.
"Copies" are material objects, other than phonorecords, in which a work
is fixed by any method now known or later developed, and from which the
work can be perceived, reproduced, or otherwise communicated, either
directly or with the aid of a machine or device. The term "copies"
includes the material object, other than a phonorecord, in which the
work is first fixed.
"Copyright owner", with respect to any one of the exclusive rights
comprised in a copyright, refers to the owner of that particular right.
A work is "created" when it is fixed in a copy or phonorecord for the
first time; where a work is prepared over a period of time, the portion
of it that has been fixed at any particular time constitutes the work as
of that time, and where the work has been prepared in different
versions, each version constitutes a separate work.
A "derivative work" is a work based upon one or more preexisting works,
such as a translation, musical arrangement, dramatization,
fictionalization, motion picture version, sound recording, art
reproduction, abridgment, condensation, or any other form in which a
work may be recast, transformed, or adapted. A work consisting of
editorial revisions, annotations, elaborations, or other modifications,
which, as a whole, represent an original work of authorship, is a
"derivative work".
A "device", "machine", or "process" is one now known or later developed.
A "digital transmission" is a transmission in whole or in part in a
digital or other non-analog format. [5]
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. [6]
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. [7]
The term "financial gain" includes receipt, or expectation of receipt,
of anything of value, including the receipt of other copyrighted works.
[8]
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. [9]
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. [10]
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; [11]
(6) the WIPO Performances and Phonograms Treaty; [12] and
(7) any other copyright treaty to which the United States is a party. [13]
A "joint work" is a work prepared by two or more authors with the
intention that their contributions be merged into inseparable or
interdependent parts of a unitary whole.
"Literary works" are works, other than audiovisual works, expressed in
words, numbers, or other verbal or numerical symbols or indicia,
regardless of the nature of the material objects, such as books,
periodicals, manuscripts, phonorecords, film, tapes, disks, or cards, in
which they are embodied.
"Motion pictures" are audiovisual works consisting of a series of
related images which, when shown in succession, impart an impression of
motion, together with accompanying sounds, if any.
To "perform" a work means to recite, render, play, dance, or act it,
either directly or by means of any device or process or, in the case of
a motion picture or other audiovisual work, to show its images in any
sequence or to make the sounds accompanying it audible.
A "performing rights society" is an association, corporation, or other
entity that licenses the public performance of nondramatic musical works
on behalf of copyright owners of such works, such as the American
Society of Composers, Authors and Publishers (ASCAP), Broadcast Music,
Inc. (BMI), and SESAC, Inc. [14]
"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. [15]
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. [16]
A "pseudonymous work" is a work on the copies or phonorecords of which
the author is identified under a fictitious name.
"Publication" is the distribution of copies or phonorecords of a work to
the public by sale or other transfer of ownership, or by rental, lease,
or lending. The offering to distribute copies or phonorecords to a group
of persons for purposes of further distribution, public performance, or
public display, constitutes publication. A public performance or display
of a work does not of itself constitute publication.
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. [17]
"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. [18]
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. [19]
A "useful article" is an article having an intrinsic utilitarian
function that is not merely to portray the appearance of the article or
to convey information. An article that is normally a part of a useful
article is considered a "useful article".
The author's "widow" or "widower" is the author's surviving spouse under
the law of the author's domicile at the time of his or her death,
whether or not the spouse has later remarried.
The "WIPO Copyright Treaty" is the WIPO Copyright Treaty concluded at
Geneva, Switzerland, on December 20, 1996. [20]
The "WIPO Performances and Phonograms Treaty" is the WIPO Performances
and Phonograms Treaty concluded at Geneva, Switzerland, on December 20,
1996. [21]
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. [22]
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. [23]
The terms "WTO Agreement" and "WTO member country" have the meanings
given those terms in paragraphs (9) and (10), respectively, of section 2
of the Uruguay Round Agreements Act. {24}
A "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. [25]
Section 102. Subject matter of copyright: In general [26]
(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.
Section 103. Subject matter of copyright: Compilations and derivative
works
(a) The subject matter of copyright as specified by section 102 includes
compilations and derivative works, but protection for a work employing
preexisting material in which copyright subsists does not extend to any
part of the work in which such material has been used unlawfully.
(b) The copyright in a compilation or derivative work extends only to
the material contributed by the author of such work, as distinguished
from the preexisting material employed in the work, and does not imply
any exclusive right in the preexisting material. The copyright in such
work is independent of, and does not affect or enlarge the scope,
duration, ownership, or subsistence of, any copyright protection in the
preexisting material.
Section 104. Subject matter of copyright: National origin [27]
(a) Unpublished Works. The works specified by sections 102 and 103,
while unpublished, are subject to protection under this title without
regard to the nationality or domicile of the author.
(b) Published Works. The works specified by sections 102 and 103, when
published, are subject to protection under this title if-
(1) on the date of first publication, one or more of the authors is a
national or domiciliary of the United States, or is a national,
domiciliary, or sovereign authority of a treaty party, or is a stateless
person, wherever that person may be domiciled; or
(2) the work is first published in the United States or in a foreign
nation that, on the date of first publication, is a treaty party; or
(3) the work is a sound recording that was first fixed in a treaty
party; or
(4) the work is a pictorial, graphic, or sculptural work that is
incorporated in a building or other structure, or an architectural work
that is embodied in a building and the building or structure is located
in the United States or a treaty party; or
(5) the work is first published by the United Nations or any of its
specialized agencies, or by the Organization of American States; or
(6) the work comes within the scope of a Presidential proclamation.
Whenever the President finds that a particular foreign nation extends,
to works by authors who are nationals or domiciliaries of the United
States or to works that are first published in the United States,
copyright protection on substantially the same basis as that on which
the foreign nation extends protection to works of its own nationals and
domiciliaries and works first published in that nation, the President
may by proclamation extend protection under this title to works of which
one or more of the authors is, on the date of first publication, a
national, domiciliary, or sovereign authority of that nation, or which
was first published in that nation. The President may revise, suspend,
or revoke any such proclamation or impose any conditions or limitations
on protection under a proclamation.
For purposes of paragraph (2), a work that is published in the United
States or a treaty party within 30 days after publication in a foreign
nation that is not a treaty party shall be considered to be first
published in the United States or such treaty party, as the case may be.
(c) Effect of Berne Convention. No right or interest in a work eligible
for protection under this title may be claimed by virtue of, or in
reliance upon, the provisions of the Berne Convention, or the adherence
of the United States thereto. Any rights in a work eligible for
protection under this title that derive from this title, other Federal
or State statutes, or the common law, shall not be expanded or reduced
by virtue of, or in reliance upon, the provisions of the Berne
Convention, or the adherence of the United States thereto.
(d) Effect of Phonograms Treaties. Notwithstanding the provisions of
subsection (b), no works other than sound recordings shall be eligible
for protection under this title solely by virtue of the adherence of the
United States to the Geneva Phonograms Convention or the WIPO
Performances and Phonograms Treaty. [28]
Section 104A. Copyright in restored works [29]
(a) Automatic Protection and Term.-
(1) Term.-
(A) Copyright subsists, in accordance with this section, in restored
works, and vests automatically on the date of restoration.
(B) Any work in which copyright is restored under this section shall
subsist for the remainder of the term of copyright that the work would
have otherwise been granted in the United States if the work never
entered the public domain in the United States.
(2) Exception. Any work in which the copyright was ever owned or
administered by the Alien Property Custodian and in which the restored
copyright would be owned by a government or instrumentality thereof, is
not a restored work.
(b) Ownership of Restored Copyright. A restored work vests initially in
the author or initial rightholder of the work as determined by the law
of the source country of the work.
(c) Filing of Notice of Intent to Enforce Restored Copyright Against
Reliance Parties. On or after the date of restoration, any person who
owns a copyright in a restored work or an exclusive right therein may
file with the Copyright Office a notice of intent to enforce that
person's copyright or exclusive right or may serve such a notice
directly on a reliance party. Acceptance of a notice by the Copyright
Office is effective as to any reliance parties but shall not create a
presumption of the validity of any of the facts stated therein. Service
on a reliance party is effective as to that reliance party and any other
reliance parties with actual knowledge of such service and of the
contents of that notice.
(d) Remedies for Infringement of Restored Copyrights.-
(1) Enforcement of Copyright in Restored Works in the Absence of a
Reliance Party. As against any party who is not a reliance party, the
remedies provided in chapter 5 of this title shall be available on or
after the date of restoration of a restored copyright with respect to an
act of infringement of the restored copyright that is commenced on or
after the date of restoration.
(2) Enforcement of Copyright in Restored Works as Against Reliance
Parties. As against a reliance party, except to the extent provided in
paragraphs (3) and (4), the remedies provided in chapter 5 of this title
shall be available, with respect to an act of infringement of a restored
copyright, on or after the date of restoration of the restored copyright
if the requirements of either of the following subparagraphs are met:
(A)(i) The owner of the restored copyright (or such owner's agent) or
the owner of an exclusive right therein (or such owner's agent) files
with the Copyright Office, during the 24-month period beginning on the
date of restoration, a notice of intent to enforce the restored
copyright; and
(ii)(I) the act of infringement commenced after the end of the 12-month
period beginning on the date of publication of the notice in the Federal
Register;
(II) the act of infringement commenced before the end of the 12-month
period described in subclause (I) and continued after the end of that
12-month period, in which case remedies shall be available only for
infringement occurring after the end of that 12-month period; or
(III) copies or phonorecords of a work in which copyright has been
restored under this section are made after publication of the notice of
intent in the Federal Register.
(B)(i) The owner of the restored copyright (or such owner's agent) or
the owner of an exclusive right therein (or such owner's agent) serves
upon a reliance party a notice of intent to enforce a restored
copyright; and
(ii)(I) the act of infringement commenced after the end of the 12-month
period beginning on the date the notice of intent is received;
(II) the act of infringement commenced before the end of the 12-month
period described in subclause (I) and continued after the end of that
12-month period, in which case remedies shall be available only for the
infringement occurring after the end of that 12-month period; or
(III) copies or phonorecords of a work in which copyright has been
restored under this section are made after receipt of the notice of
intent.
In the event that notice is provided under both subparagraphs (A) and
(B), the 12-month period referred to in such subparagraphs shall run
from the earlier of publication or service of notice.
(3) Existing Derivative Works.-
(A) In the case of a derivative work that is based upon a restored work
and is created-
(i) before the date of the enactment of the Uruguay Round Agreements
Act, if the source country of the restored work is an eligible country
on such date, or
(ii) before the date on which the source country of the restored work
becomes an eligible country, if that country is not an eligible country
on such date of enactment, a reliance party may continue to exploit that
derivative work for the duration of the restored copyright if the
reliance party pays to the owner of the restored copyright reasonable
compensation for conduct which would be subject to a remedy for
infringement but for the provisions of this paragraph.
(B) In the absence of an agreement between the parties, the amount of
such compensation shall be determined by an action in United States
district court, and shall reflect any harm to the actual or potential
market for or value of the restored work from the reliance party's
continued exploitation of the work, as well as compensation for the
relative contributions of expression of the author of the restored work
and the reliance party to the derivative work.
(4) Commencement of Infringement for Reliance Parties. For purposes of
section 412, in the case of reliance parties, infringement shall be
deemed to have commenced before registration when acts which would have
constituted infringement had the restored work been subject to copyright
were commenced before the date of restoration.
(e) Notices of Intent to Enforce a Restored Copyright.-
(1) Notices of Intent Filed With the Copyright Office.-
(A)(i) A notice of intent filed with the Copyright Office to enforce a
restored copyright shall be signed by the owner of the restored
copyright or the owner of an exclusive right therein, who files the
notice under subsection (d)(2)(A)(i) (hereafter in this paragraph
referred to as the "owner"), or by the owner's agent, shall identify the
title of the restored work, and shall include an English translation of
the title and any other alternative titles known to the owner by which
the restored work may be identified, and an address and telephone number
at which the owner may be contacted. If the notice is signed by an
agent, the agency relationship must have been constituted in a writing
signed by the owner before the filing of the notice. The Copyright
Office may specifically require in regulations other information to be
included in the notice, but failure to provide such other information
shall not invalidate the notice or be a basis for refusal to list the
restored work in the Federal Register.
(ii) If a work in which copyright is restored has no formal title, it
shall be described in the notice of intent in detail sufficient to
identify it.
(iii) Minor errors or omissions may be corrected by further notice at
any time after the notice of intent is filed. Notices of corrections for
such minor errors or omissions shall be accepted after the period
established in subsection (d)(2)(A)(i). Notices shall be published in
the Federal Register pursuant to subparagraph (B).
(B)(i) The Register of Copyrights shall publish in the Federal Register,
commencing not later than 4 months after the date of restoration for a
particular nation and every 4 months thereafter for a period of 2 years,
lists identifying restored works and the ownership thereof if a notice
of intent to enforce a restored copyright has been filed.
(ii) Not less than 1 list containing all notices of intent to enforce
shall be maintained in the Public Information Office of the Copyright
Office and shall be available for public inspection and copying during
regular business hours pursuant to sections 705 and 708.
(C) The Register of Copyrights is authorized to fix reasonable fees
based on the costs of receipt, processing, recording, and publication of
notices of intent to enforce a restored copyright and corrections
thereto.
(D)(i) Not later than 90 days before the date the Agreement on
Trade-Related Aspects of Intellectual Property referred to in section
101(d) (15) of the Uruguay Round Agreements Act enters into force with
respect to the United States, the Copyright Office shall issue and
publish in the Federal Register regulations governing the filing under
this subsection of notices of intent to enforce a restored copyright.
(ii) Such regulations shall permit owners of restored copyrights to file
simultaneously for registration of the restored copyright.
(2) Notices of Intent Served on a Reliance Party.-
(A) Notices of intent to enforce a restored copyright may be served on a
reliance party at any time after the date of restoration of the restored
copyright.
(B) Notices of intent to enforce a restored copyright served on a
reliance party shall be signed by the owner or the owner's agent, shall
identify the restored work and the work in which the restored work is
used, if any, in detail sufficient to identify them, and shall include
an English translation of the title, any other alternative titles known
to the owner by which the work may be identified, the use or uses to
which the owner objects, and an address and telephone number at which
the reliance party may contact the owner. If the notice is signed by an
agent, the agency relationship must have been constituted in writing and
signed by the owner before service of the notice.
(3) Effect of Material False Statements. Any material false statement
knowingly made with respect to any restored copyright identified in any
notice of intent shall make void all claims and assertions made with
respect to such restored copyright.
(f) Immunity From Warranty and Related Liability.-
(1) In General. Any person who warrants, promises, or guarantees that
a work does not violate an exclusive right granted in section 106 shall
not be liable for legal, equitable, arbitral, or administrative relief
if the warranty, promise, or guarantee is breached by virtue of the
restoration of copyright under this section, if such warranty, promise,
or guarantee is made before January 1, 1995.
(2) Performances. No person shall be required to perform any act if
such performance is made infringing by virtue of the restoration of
copyright under the provisions of this section, if the obligation to
perform was undertaken before January 1, 1995.
(g) Proclamation of Copyright Restoration. Whenever the President finds
that a particular foreign nation extends, to works by authors who are
nationals or domiciliaries of the United States, restored copyright
protection on substantially the same basis as provided under this
section, the President may by proclamation extend restored protection
provided under this section to any work
(1) of which one or more of the authors is, on the date of first
publication, a national, domiciliary, or sovereign authority of that
nation; or
(2) which was first published in that nation.
The President may revise, suspend, or revoke any such proclamation or
impose any conditions or limitations on protection under such a
proclamation.
(h) Definitions. For purposes of this section and section 109(a):
(1) The term "date of adherence or proclamation" means the earlier of
the date on which a foreign nation which, as of the date the WTO
Agreement enters into force with respect to the United States, is not a
nation adhering to the Berne Convention or a WTO member country,
becomes-
(A) a nation adhering to the Berne Convention;
(B) a WTO member country;
(C) a nation adhering to the WIPO Copyright Treaty; [30]
(D) a nation adhering to the WIPO Performances and Phonograms Treaty; [31]
or
(E) subject to a Presidential proclamation under subsection (g).
(2) The "date of restoration" of a restored copyright is-
(A) January 1, 1996, if the source country of the restored work is a
nation adhering to the Berne Convention or a WTO member country on such
date, or
(B) the date of adherence or proclamation, in the case of any other
source country of the restored work.
(3) The term "eligible country" means a nation, other than the United
States, that
(A) becomes a WTO member country after the date of the enactment of the
Uruguay Round Agreements Act;
(B) on such date of enactment is, or after such date of enactment
becomes, a nation adhering to the Berne Convention;
(C) adheres to the WIPO Copyright Treaty; [32]
(D) adheres to the WIPO Performances and Phonograms Treaty; [33] or
(E) after such date of enactment becomes subject to a proclamation under
subsection (g).
(4) The term "reliance party" means any person who-
(A) with respect to a particular work, engages in acts, before the
source country of that work becomes an eligible country, which would
have violated section 106 if the restored work had been subject to
copyright protection, and who, after the source country becomes an
eligible country, continues to engage in such acts;
(B) before the source country of a particular work becomes an eligible
country, makes or acquires 1 or more copies or phonorecords of that
work; or
(C) as the result of the sale or other disposition of a derivative work
covered under subsection (d)(3), or significant assets of a person
described in subparagraph (A) or (B), is a successor, assignee, or
licensee of that person.
(5) The term "restored copyright" means copyright in a restored work
under this section.
(6) The term "restored work" means an original work of authorship that-
(A) is protected under subsection (a);
(B) is not in the public domain in its source country through expiration
of term of protection;
(C) is in the public domain in the United States due to-
(i) noncompliance with formalities imposed at any time by United States
copyright law, including failure of renewal, lack of proper notice, or
failure to comply with any manufacturing requirements;
(ii) lack of subject matter protection in the case of sound recordings
fixed before February 15, 1972; or
(iii) lack of national eligibility;
(D) has at least one author or rightholder who was, at the time the work
was created, a national or domiciliary of an eligible country, and if
published, was first published in an eligible country and not published
in the United States during the 30-day period following publication in
such eligible country; and
(E) if the source country for the work is an eligible country solely by
virtue of its adherence to the WIPO Performances and Phonograms Treaty,
is a sound recording. [34]
(7) The term "rightholder" means the person-
(A) who, with respect to a sound recording, first fixes a sound
recording with authorization, or
(B) who has acquired rights from the person described in subparagraph
(A) by means of any conveyance or by operation of law.
(8) The "source country" of a restored work is-
(A) a nation other than the United States;
(B) in the case of an unpublished work-
(i) the eligible country in which the author or rightholder is a
national or domiciliary, or, if a restored work has more than 1 author
or rightholder, of which the majority of foreign authors or rightholders
are nationals or domiciliaries; or
(ii) if the majority of authors or rightholders are not foreign, the
nation other than the United States which has the most significant
contacts with the work; and
(C) in the case of a published work-
(i) the eligible country in which the work is first published, or
(ii) if the restored work is published on the same day in 2 or more
eligible countries, the eligible country which has the most significant
contacts with the work.
Section 105. Subject matter of copyright: United States Government
works [35]
Copyright protection under this title is not available for any work of
the United States Government, but the United States Government is not
precluded from receiving and holding copyrights transferred to it by
assignment, bequest, or otherwise.
Section 106. Exclusive rights in copyrighted works [36]
Subject to sections 107 through 121, 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.
Section 106A. Rights of certain authors to attribution and integrity [37]
(a) Rights of Attribution and Integrity. Subject to section 107 and
independent of the exclusive rights provided in section 106, the author
of a work of visual art
(1) shall have the right-
(A) to claim authorship of that work, and
(B) to prevent the use of his or her name as the author of any work of
visual art which he or she did not create;
(2) shall have the right to prevent the use of his or her name as the
author of the work of visual art in the event of a distortion,
mutilation, or other modification of the work which would be prejudicial
to his or her honor or reputation; and
(3) subject to the limitations set forth in section 113(d), shall have
the right-
(A) to prevent any intentional distortion, mutilation, or other
modification of that work which would be prejudicial to his or her honor
or reputation, and any intentional distortion, mutilation, or
modification of that work is a violation of that right, and
(B) to prevent any destruction of a work of recognized stature, and any
intentional or grossly negligent destruction of that work is a violation
of that right.
(b) Scope and Exercise of Rights. Only the author of a work of visual
art has the rights conferred by subsection (a) in that work, whether or
not the author is the copyright owner. The authors of a joint work of
visual art are coowners of the rights conferred by subsection (a) in
that work.
(c) Exceptions.- (1) The modification of a work of visual art which is
the result of the passage of time or the inherent nature of the
materials is not a distortion, mutilation, or other modification
described in subsection (a)(3)(A).
(2) The modification of a work of visual art which is the result of
conservation, or of the public presentation, including lighting and
placement, of the work is not a destruction, distortion, mutilation, or
other modification described in subsection (a)(3) unless the
modification is caused by gross negligence.
(3) The rights described in paragraphs (1) and (2) of subsection (a)
shall not apply to any reproduction, depiction, portrayal, or other use
of a work in, upon, or in any connection with any item described in
subparagraph (A) or (B) of the definition of "work of visual art" in
section 101, and any such reproduction, depiction, portrayal, or other
use of a work is not a destruction, distortion, mutilation, or other
modification described in paragraph (3) of subsection (a).
(d) Duration of Rights.- (1) With respect to works of visual art created
on or after the effective date set forth in section 610(a) of the Visual
Artists Rights Act of 1990, the rights conferred by subsection (a) shall
endure for a term consisting of the life of the author.
(2) With respect to works of visual art created before the effective
date set forth in section 610(a) of the Visual Artists Rights Act of
1990, but title to which has not, as of such effective date, been
transferred from the author, the rights conferred by subsection (a)
shall be coextensive with, and shall expire at the same time as, the
rights conferred by section 106.
(3) In the case of a joint work prepared by two or more authors, the
rights conferred by subsection (a) shall endure for a term consisting of
the life of the last surviving author.
(4) All terms of the rights conferred by subsection (a) run to the end
of the calendar year in which they would otherwise expire.
(e) Transfer and Waiver.- (1) The rights conferred by subsection (a) may
not be transferred, but those rights may be waived if the author
expressly agrees to such waiver in a written instrument signed by the
author. Such instrument shall specifically identify the work, and uses
of that work, to which the waiver applies, and the waiver shall apply
only to the work and uses so identified. In the case of a joint work
prepared by two or more authors, a waiver of rights under this paragraph
made by one such author waives such rights for all such authors.
(2) Ownership of the rights conferred by subsection (a) with respect to
a work of visual art is distinct from ownership of any copy of that
work, or of a copyright or any exclusive right under a copyright in that
work. Transfer of ownership of any copy of a work of visual art, or of a
copyright or any exclusive right under a copyright, shall not constitute
a waiver of the rights conferred by subsection (a). Except as may
otherwise be agreed by the author in a written instrument signed by the
author, a waiver of the rights conferred by subsection (a) with respect
to a work of visual art shall not constitute a transfer of ownership of
any copy of that work, or of ownership of a copyright or of any
exclusive right under a copyright in that work.
Section 107. Limitations on exclusive rights: Fair use [38]
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.
Section 108. Limitations on exclusive rights: Reproduction by libraries
and archives [39]
(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 copy-right if no such notice can be found
on the copy or phonorecord that is reproduced under the provisions of
this section.
(b) The rights of reproduction and distribution under this section apply
to three copies or phonorecords of an unpublished work duplicated solely
for purposes of preservation and security or for deposit for research
use in another library or archives of the type described by clause (2)
of subsection (a), if-
(1) the copy or phonorecord reproduced is currently in the collections
of the library or archives; and
(2) any such copy or phonorecord that is reproduced in digital format is
not otherwise distributed in that format and is not made available to
the public in that format outside the premises of the library or
archives.
(c) The right of reproduction under this section applies to three copies
or phonorecords of a published work duplicated solely for the purpose of
replacement of a copy or phonorecord that is damaged, deteriorating,
lost, or stolen, or if the existing format in which the work is stored
has become obsolete, if-
(1) the library or archives has, after a reasonable effort, determined
that an unused replacement cannot be obtained at a fair price; and
(2) any such copy or phonorecord that is reproduced in digital format is
not made available to the public in that format outside the premises of
the library or archives in lawful possession of such copy.
For purposes of this subsection, a format shall be considered obsolete
if the machine or device necessary to render perceptible a work stored
in that format is no longer manufactured or is no longer reasonably
available in the commercial marketplace.
(d) The rights of reproduction and distribution under this section apply
to a copy, made from the collection of a library or archives where the
user makes his or her request or from that of another library or
archives, of no more than one article or other contribution to a
copyrighted collection or periodical issue, or to a copy or phonorecord
of a small part of any other copyrighted work, if-
(1) the copy or phonorecord becomes the property of the user, and the
library or archives has had no notice that the copy or phonorecord would
be used for any purpose other than private study, scholarship, or
research; and
(2) the library or archives displays prominently, at the place where
orders are accepted, and includes on its order form, a warning of
copyright in accordance with requirements that the Register of
Copyrights shall prescribe by regulation.
(e) The rights of reproduction and distribution under this section apply
to the entire work, or to a substantial part of it, made from the
collection of a library or archives where the user makes his or her
request or from that of another library or archives, if the library or
archives has first determined, on the basis of a reasonable
investigation, that a copy or phonorecord of the copyrighted work cannot
be obtained at a fair price, if-
(1) the copy or phonorecord becomes the property of the user, and the
library or archives has had no notice that the copy or phonorecord would
be used for any purpose other than private study, scholarship, or
research; and
(2) the library or archives displays prominently, at the place where
orders are accepted, and includes on its order form, a warning of
copyright in accordance with requirements that the Register of
Copyrights shall prescribe by regulation.
(f) Nothing in this section-
(1) shall be construed to impose liability for copyright infringement
upon a library or archives or its employees for the unsupervised use of
reproducing equipment located on its premises: *Provided*, That such
equipment displays a notice that the making of a copy may be subject to
the copyright law;
(2) excuses a person who uses such reproducing equipment or who requests
a copy or phonorecord under subsection (d) from liability for copyright
infringement for any such act, or for any later use of such copy or
phonorecord, if it exceeds fair use as provided by section 107;
(3) shall be construed to limit the reproduction and distribution by
lending of a limited number of copies and excerpts by a library or
archives of an audiovisual news program, subject to clauses (1), (2),
and (3) of subsection (a); or
(4) in any way affects the right of fair use as provided by section 107,
or any contractual obligations assumed at any time by the library or
archives when it obtained a copy or phonorecord of a work in its
collections.
(g) The rights of reproduction and distribution under this section
extend to the isolated and unrelated reproduction or distribution of a
single copy or phonorecord of the same material on separate occasions,
but do not extend to cases where the library or archives, or its
employee-
(1) is aware or has substantial reason to believe that it is engaging in
the related or concerted reproduction or distribution of multiple copies
or phonorecords of the same material, whether made on one occasion or
over a period of time, and whether intended for aggregate use by one or
more individuals or for separate use by the individual members of a
group; or
(2) engages in the systematic reproduction or distribution of single or
multiple copies or phonorecords of material described in subsection (d):
*Provided*, That nothing in this clause prevents a library or archives
from participating in interlibrary arrangements that do not have, as
their purpose or effect, that the library or archives receiving such
copies or phonorecords for distribution does so in such aggregate
quantities as to substitute for a subscription to or purchase of such
work.
(h)(1) For purposes of this section, during the last 20 years of any
term of copyright of a published work, a library or archives, including
a nonprofit educational institution that functions as such, may
reproduce, distribute, display, or perform in facsimile or digital form
a copy or phonorecord of such work, or portions thereof, for purposes of
preservation, scholarship, or research, if such library or archives has
first determined, on the basis of a reasonable investigation, that none
of the conditions set forth in subparagraphs (A), (B), and (C) of
paragraph (2) apply.
(2) No reproduction, distribution, display, or performance is authorized
under this subsection if=
(A) the work is subject to normal commercial exploitation;
(B) a copy or phonorecord of the work can be obtained at a reasonable
price; or
(C) the copyright owner or its agent provides notice pursuant to
regulations promulgated by the Register of Copyrights that either of the
conditions set forth in subparagraphs (A) and (B) applies.
(3) The exemption provided in this subsection does not apply to any
subsequent uses by users other than such library or archives.
(i) The rights of reproduction and distribution under this section do
not apply to a musical work, a pictorial, graphic or sculptural work, or
a motion picture or other audiovisual work other than an audiovisual
work dealing with news, except that no such limitation shall apply with
respect to rights granted by subsections (b) and (c), or with respect to
pictorial or graphic works published as illustrations, diagrams, or
similar adjuncts to works of which copies are reproduced or distributed
in accordance with subsections (d) and (e).
Section 109. Limitations on exclusive rights: Effect of transfer of
particular copy or phonorecord [40]
(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.
Section 110. Limitations on exclusive rights: Exemption of certain
performances and displays [41]
Notwithstanding the provisions of section 106, the following are not
infringements of copyright:
(1) performance or display of a work by instructors or pupils in the
course of face-to-face teaching activities of a nonprofit educational
institution, in a classroom or similar place devoted to instruction,
unless, in the case of a motion picture or other audiovisual work, the
performance, or the display of individual images, is given by means of a
copy that was not lawfully made under this title, and that the person
responsible for the performance knew or had reason to believe was not
lawfully made;
(2) performance of a nondramatic literary or musical work or display of
a work, by or in the course of a transmission, if-
(A) the performance or display is a regular part of the systematic
instructional activities of a governmental body or a nonprofit
educational institution; and
(B) the performance or display is directly related and of 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;
(3) performance of a nondramatic literary or musical work or of a
dramatico-musical work of a religious nature, or display of a work, in
the course of services at a place of worship or other religious
assembly;
(4) performance of a nondramatic literary or musical work otherwise than
in a transmission to the public, without any purpose of direct or
indirect commercial advantage and without payment of any fee or other
compensation for the performance to any of its performers, promoters, or
organizers, if-
(A) there is no direct or indirect admission charge; or
(B) the proceeds, after deducting the reasonable costs of producing the
performance, are used exclusively for educational, religious, or
charitable purposes and not for private financial gain, except where the
copyright owner has served notice of objection to the performance under
the following conditions;
(i) the notice shall be in writing and signed by the copyright owner or
such owner's duly authorized agent; and
(ii) the notice shall be served on the person responsible for the
performance at least seven days before the date of the performance, and
shall state the reasons for the objection; and
(iii) the notice shall comply, in form, content, and manner of service,
with requirements that the Register of Copyrights shall prescribe by
regulation;
(5)(A) except as provided in subparagraph (B), communication of a
transmission embodying a performance or display of a work by the public
reception of the transmission on a single receiving apparatus of a kind
commonly used in private homes, unless-
(i) a direct charge is made to see or hear the transmission; or
(ii) the transmission thus received is further transmitted to the
public;
(B) communication by an establishment of a transmission or
retransmission embodying a performance or display of a nondramatic
musical work intended to be received by the general public, originated
by a radio or television broadcast station licensed as such by the
Federal Communications Commission, or, if an audiovisual transmission,
by a cable system or satellite carrier, if-
(i) in the case of an establishment other than a food service or
drinking establishment, either the establishment in which the
communication occurs has less than 2,000 gross square feet of space
(excluding space used for customer parking and for no other purpose), or
the establishment in which the communication occurs has 2,000 or more
gross square feet of space (excluding space used for customer parking
and for no other purpose) and-
(I) if the performance is by audio means only, the performance is
communicated by means of a total of not more than 6 loudspeakers, of
which not more than 4 loudspeakers are located in any 1 room or
adjoining outdoor space; or
(II) if the performance or display is by audiovisual means, any visual
portion of the performance or display is communicated by means of a
total of not more than 4 audiovisual devices, of which not more than 1
audiovisual device is located in any 1 room, and no such audiovisual
device has a diagonal screen size greater than 55 inches, and any audio
portion of the performance or display is communicated by means of a
total of not more than 6 loudspeakers, of which not more than 4
loudspeakers are located in any 1 room or adjoining outdoor space;
(ii) in the case of a food service or drinking establishment, either the
establishment in which the communication occurs has less than 3,750
gross square feet of space (excluding space used for customer parking
and for no other purpose), or the establishment in which the
communication occurs has 3,750 gross square feet of space or more
(excluding space used for customer parking and for no other purpose)
and
(I) if the performance is by audio means only, the performance is
communicated by means of a total of not more than 6 loudspeakers, of
which not more than 4 loudspeakers are located in any 1 room or
adjoining outdoor space; or
(II) if the performance or display is by audiovisual means, any visual
portion of the performance or display is communicated by means of a
total of not more than 4 audiovisual devices, of which not more than 1
audiovisual device is located in any 1 room, and no such audiovisual
device has a diagonal screen size greater than 55 inches, and any audio
portion of the performance or display is communicated by means of a
total of not more than 6 loudspeakers, of which not more than 4
loudspeakers are located in any 1 room or adjoining outdoor space;
(iii) no direct charge is made to see or hear the transmission or
retransmission;
(iv) the transmission or retransmission is not further transmitted
beyond the establishment where it is received; and
(v) the transmission or retransmission is licensed by the copyright
owner of the work so publicly performed or displayed;
(6) performance of a nondramatic musical work by a governmental body or
a nonprofit agricultural or horticultural organization, in the course of
an annual agricultural or horticultural fair or exhibition conducted by
such body or organization; the exemption provided by this clause shall
extend to any liability for copyright infringement that would otherwise
be imposed on such body or organization, under doctrines of vicarious
liability or related infringement, for a performance by a
concessionnaire, business establishment, or other person at such fair or
exhibition, but shall not excuse any such person from liability for the
performance;
(7) performance of a nondramatic musical work by a vending establishment
open to the public at large without any direct or indirect admission
charge, where the sole purpose of the performance is to promote the
retail sale of copies or phonorecords of the work, or of the audiovisual
or other devices utilized in such performance, and the performance is
not transmitted beyond the place where the establishment is located and
is within the immediate area where the sale is occurring;
(8) performance of a nondramatic literary work, by or in the course of a
transmission specifically designed for and primarily directed to blind
or other handicapped persons who are unable to read normal printed
material as a result of their handicap, or deaf or other handicapped
persons who are unable to hear the aural signals accompanying a
transmission of visual signals, if the performance is made without any
purpose of direct or indirect commercial advantage and its transmission
is made through the facilities of: (i) a governmental body; or (ii) a
noncommercial educational broadcast station (as defined in section 397
of title 47); or (iii) a radio subcarrier authorization (as defined in
47 CFR 73.293-73.295 and 73.593-73.595); or (iv) a cable system (as
defined in section 111 (f));
(9) performance on a single occasion of a dramatic literary work
published at least ten years before the date of the performance, by or
in the course of a transmission specifically designed for and primarily
directed to blind or other handicapped persons who are unable to read
normal printed material as a result of their handicap, if the
performance is made without any purpose of direct or indirect commercial
advantage and its transmission is made through the facilities of a radio
subcarrier authorization referred to in clause (8) (iii), *Provided*,
That the provisions of this clause shall not be applicable to more than
one performance of the same work by the same performers or under the
auspices of the same organization; and
(10) notwithstanding paragraph (4), the following is not an infringement
of copyright: performance of a nondramatic literary or musical work in
the course of a social function which is organized and promoted by a
nonprofit veterans' organization or a nonprofit fraternal organization
to which the general public is not invited, but not including the
invitees of the organizations, if the proceeds from the performance,
after deducting the reasonable costs of producing the performance, are
used exclusively for charitable purposes and not for financial gain. For
purposes of this section the social functions of any college or
university fraternity or sorority shall not be included unless the
social function is held solely to raise funds for a specific charitable
purpose.
The exemptions provided under paragraph (5) shall not be taken into
account in any administrative, judicial, or other governmental
proceeding to set or adjust the royalties payable to copyright owners
for the public performance or display of their works. Royalties payable
to copyright owners for any public performance or display of their works
other than such performances or displays as are exempted under paragraph
(5) shall not be diminished in any respect as a result of such
exemption.
Section 111. Limitations on exclusive rights: Secondary transmissions [42]
(a) Certain Secondary Transmissions Exempted. The secondary transmission
of a performance or display of a work embodied in a primary transmission
is not an infringement of copyright if-
(1) the secondary transmission is not made by a cable system, and
consists entirely of the relaying, by the management of a hotel,
apartment house, or similar establishment, of signals transmitted by a
broadcast station licensed by the Federal Communications Commission,
within the local service area of such station, to the private lodgings
of guests or residents of such establishment, and no direct charge is
made to see or hear the secondary transmission; or
(2) the secondary transmission is made solely for the purpose and under
the conditions specified by clause (2) of section 110; or
(3) the secondary transmission is made by any carrier who has no direct
or indirect control over the content or selection of the primary
transmission or over the particular recipients of the secondary
transmission, and whose activities with respect to the secondary
transmission consist solely of providing wires, cables, or other
communications channels for the use of others: *Provided*, That the
provisions of this clause extend only to the activities of said carrier
with respect to secondary transmissions and do not exempt from liability
the activities of others with respect to their own primary or secondary
transmissions;
(4) the secondary transmission is made by a satellite carrier for
private home viewing pursuant to a statutory license under section 119;
or
(5) the secondary transmission is not made by a cable system but is made
by a governmental body, or other nonprofit organization, without any
purpose of direct or indirect commercial advantage, and without charge
to the recipients of the secondary transmission other than assessments
necessary to defray the actual and reasonable costs of maintaining and
operating the secondary transmission service.
(b) Secondary Transmission of Primary Transmission to Controlled Group.
Notwithstanding the provisions of subsections (a) and (c), the secondary
transmission to the public of a performance or display of a work
embodied in a primary transmission is actionable as an act of
infringement under section 501, and is fully subject to the remedies
provided by sections 502 through 506 and 509, if the primary
transmission is not made for reception by the public at large but is
controlled and limited to reception by particular members of the public:
*Provided*, however, That such secondary transmission is not actionable
as an act of infringement if-
(1) the primary transmission is made by a broadcast station licensed by
the Federal Communications Commission; and
(2) the carriage of the signals comprising the secondary transmission is
required under the rules, regulations, or authorizations of the Federal
Communications Commission; and
(3) the signal of the primary transmitter is not altered or changed in
any way by the secondary transmitter.
(c) Secondary Transmissions by Cable Systems.-
(1) Subject to the provisions of clauses (2), (3), and (4) of this
subsection and section 114(d), secondary transmissions to the public by
a cable system of a performance or display of a work embodied in a
primary transmission made by a broadcast station licensed by the Federal
Communications Commission or by an appropriate governmental authority of
Canada or Mexico shall be subject to statutory licensing upon compliance
with the requirements of subsection (d) where the carriage of the
signals comprising the secondary transmission is permissible under the
rules, regulations, or authorizations of the Federal Communications
Commission.
(2) Notwithstanding the provisions of clause (1) of this subsection, the
willful or repeated secondary transmission to the public by a cable
system of a primary transmission made by a broadcast station licensed by
the Federal Communications Commission or by an appropriate governmental
authority of Canada or Mexico and embodying a performance or display of
a work is actionable as an act of infringement under section 501, and is
fully subject to the remedies provided by sections 502 through 506 and
509, in the following cases:
(A) where the carriage of the signals comprising the secondary
transmission is not permissible under the rules, regulations, or
authorizations of the Federal Communications Commission; or
(B) where the cable system has not deposited the statement of account
and royalty fee required by subsection (d).
(3) Notwithstanding the provisions of clause (1) of this subsection and
subject to the provisions of subsection (e) of this section, the
secondary transmission to the public by a cable system of a performance
or display of a work embodied in a primary transmission made by a
broadcast station licensed by the Federal Communications Commission or
by an appropriate governmental authority of Canada or Mexico is
actionable as an act of infringement under section 501, and is fully
subject to the remedies provided by sections 502 through 506 and
sections 509 and 510, if the content of the particular program in which
the performance or display is embodied, or any commercial advertising or
station announcements transmitted by the primary transmitter during, or
immediately before or after, the transmission of such program, is in any
way willfully altered by the cable system through changes, deletions, or
additions, except for the alteration, deletion, or substitution of
commercial advertisements performed by those engaged in television
commercial advertising market research: *Provided*, That the research
company has obtained the prior consent of the advertiser who has
purchased the original commercial advertisement, the television station
broadcasting that commercial advertisement, and the cable system
performing the secondary transmission: *And provided further*, That such
commercial alteration, deletion, or substitution is not performed for
the purpose of deriving income from the sale of that commercial time.
(4) Notwithstanding the provisions of clause (1) of this subsection, the
secondary transmission to the public by a cable system of a performance
or display of a work embodied in a primary transmission made by a
broadcast station licensed by an appropriate governmental authority of
Canada or Mexico is actionable as an act of infringement under section
501, and is fully subject to the remedies provided by sections 502
through 506 and section 509, if (A) with respect to Canadian signals,
the community of the cable system is located more than 150 miles from
the United States-Canadian border and is also located south of the
forty-second parallel of latitude, or (B) with respect to Mexican
signals, the secondary transmission is made by a cable system which
received the primary transmission by means other than direct
interception of a free space radio wave emitted by such broadcast
television station, unless prior to April 15, 1976, such cable system
was actually carrying, or was specifically authorized to carry, the
signal of such foreign station on the system pursuant to the rules,
regulations, or authorizations of the Federal Communications Commission.
(d) Statutory License for Secondary Transmissions by Cable Systems. [43]
(1) A cable system whose secondary transmissions have been subject to
statutory licensing under subsection (c) shall, on a semiannual basis,
deposit with the Register of Copyrights, in accordance with requirements
that the Register shall prescribe by regulation-
(A) a statement of account, covering the six months next preceding,
specifying the number of channels on which the cable system made
secondary transmissions to its subscribers, the names and locations of
all primary transmitters whose transmissions were further transmitted by
the cable system, the total number of subscribers, the gross amounts
paid to the cable system for the basic service of providing secondary
transmissions of primary broadcast transmitters, and such other data as
the Register of Copyrights may from time to time prescribe by
regulation. In determining the total number of subscribers and the gross
amounts paid to the cable system for the basic service of providing
secondary transmissions of primary broadcast transmitters, the cable
system shall not include subscribers and amounts collected from
subscribers receiving secondary transmissions for private home viewing
pursuant to section 119. Such statement shall also include a special
statement of account covering any nonnetwork television programming that
was carried by the cable system in whole or in part beyond the local
service area of the primary transmitter, under rules, regulations, or
authorizations of the Federal Communications Commission permitting the
substitution or addition of signals under certain circumstances,
together with logs showing the times, dates, stations, and programs
involved in such substituted or added carriage; and
(B) except in the case of a cable system whose royalty is specified in
subclause (C) or (D), a total royalty fee for the period covered by the
statement, computed on the basis of specified percentages of the gross
receipts from subscribers to the cable service during said period for
the basic service of providing secondary transmissions of primary
broadcast transmitters, as follows:
(i) 0.675 of 1 per centum of such gross receipts for the privilege of
further transmitting any nonnetwork programming of a primary transmitter
in whole or in part beyond the local service area of such primary
transmitter, such amount to be applied against the fee, if any, payable
pursuant to paragraphs (ii) through (iv);
(ii) 0.675 of 1 per centum of such gross receipts for the first distant
signal equivalent;
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