Copyright Law of the United States of America
by
The US Copyright Office
Part 2 out of 7
(iii) 0.425 of 1 per centum of such gross receipts for each of the
second, third, and fourth distant signal equivalents;
(iv) 0.2 of 1 per centum of such gross receipts for the fifth distant
signal equivalent and each additional distant signal equivalent
thereafter; and
in computing the amounts payable under paragraph (ii) through (iv),
above, any fraction of a distant signal equivalent shall be computed at
its fractional value and, in the case of any cable system located partly
within and partly without the local service area of a primary
transmitter, gross receipts shall be limited to those gross receipts
derived from subscribers located without the local service area of such
primary transmitter; and
(C) if the actual gross receipts paid by subscribers to a cable system
for the period covered by the statement for the basic service of
providing secondary transmissions of primary broadcast transmitters
total $80,000 or less, gross receipts of the cable system for the
purpose of this subclause shall be computed by subtracting from such
actual gross receipts the amount by which $80,000 exceeds such actual
gross receipts, except that in no case shall a cable system's gross
receipts be reduced to less than $3,000. The royalty fee payable under
this subclause shall be 0.5 of 1 per centum, regardless of the number of
distant signal equivalents, if any; and
(D) if the actual gross receipts paid by subscribers to a cable system
for the period covered by the statement, for the basic service of
providing secondary transmissions of primary broadcast transmitters, are
more than $80,000 but less than $160,000, the royalty fee payable under
this subclause shall be
(i) 0.5 of 1 per centum of any gross receipts up to $80,000; and
(ii) 1 per centum of any gross receipts in excess of $80,000 but less
than $160,000, regardless of the number of distant signal equivalents,
if any.
(2) The Register of Copyrights shall receive all fees deposited under
this section and, after deducting the reasonable costs incurred by the
Copyright Office under this section, shall deposit the balance in the
Treasury of the United States, in such manner as the Secretary of the
Treasury directs. All funds held by the Secretary of the Treasury shall
be invested in interest-bearing United States securities for later
distribution with interest by the Librarian of Congress in the event no
controversy over distribution exists, or by a copyright arbitration
royalty panel in the event a controversy over such distribution exists.
(3) The royalty fees thus deposited shall, in accordance with the
procedures provided by clause (4), be distributed to those among the
following copyright owners who claim that their works were the subject
of secondary transmissions by cable systems during the relevant
semiannual period:
(A) any such owner whose work was included in a secondary transmission
made by a cable system of a nonnetwork television program in whole or in
part beyond the local service area of the primary transmitter; and
(B) any such owner whose work was included in a secondary transmission
identified in a special statement of account deposited under clause (1)
(A); and
(C) any such owner whose work was included in nonnetwork programming
consisting exclusively of aural signals carried by a cable system in
whole or in part beyond the local service area of the primary
transmitter of such programs.
(4) The royalty fees thus deposited shall be distributed in accordance
with the following procedures:
(A) During the month of July in each year, every person claiming to be
entitled to statutory license fees for secondary transmissions shall
file a claim with the Librarian of Congress, in accordance with
requirements that the Librarian of Congress shall prescribe by
regulation. Notwithstanding any provisions of the antitrust laws, for
purposes of this clause any claimants may agree among themselves as to
the proportionate division of statutory licensing fees among them, may
lump their claims together and file them jointly or as a single claim,
or may designate a common agent to receive payment on their behalf.
(B) After the first day of August of each year, the Librarian of
Congress shall, upon the recommendation of the Register of Copyrights,
determine whether there exists a controversy concerning the distribution
of royalty fees. If the Librarian determines that no such controversy
exists, the Librarian shall, after deducting reasonable administrative
costs under this section, distribute such fees to the copyright owners
entitled to such fees, or to their designated agents. If the Librarian
finds the existence of a controversy, the Librarian shall, pursuant to
chapter 8 of this title, convene a copyright arbitration royalty panel
to determine the distribution of royalty fees.
(C) During the pendency of any proceeding under this subsection, the
Librarian of Congress shall withhold from distribution an amount
sufficient to satisfy all claims with respect to which a controversy
exists, but shall have discretion to proceed to distribute any amounts
that are not in controversy.
(e) Nonsimultaneous Secondary Transmissions by Cable Systems.-
(1) Notwithstanding those provisions of the second paragraph of
subsection (f) relating to nonsimultaneous secondary transmissions by a
cable system, any such transmissions are actionable as an act of
infringement under section 501, and are fully subject to the remedies
provided by sections 502 through 506 and sections 509 and 510, unless
(A) the program on the videotape is transmitted no more than one time to
the cable system's subscribers; and
(B) the copyrighted program, episode, or motion picture videotape,
including the commercials contained within such program, episode, or
picture, is transmitted without deletion or editing; and
(C) an owner or officer of the cable system
(i) prevents the duplication of the videotape while in the possession of
the system,
(ii) prevents unauthorized duplication while in the possession of the
facility making the videotape for the system if the system owns or
controls the facility, or takes reasonable precautions to prevent such
duplication if it does not own or control the facility,
(iii) takes adequate precautions to prevent duplication while the tape
is being transported, and
(iv) subject to clause (2), erases or destroys, or causes the erasure or
destruction of, the videotape; and
(D) within forty-five days after the end of each calendar quarter, an
owner or officer of the cable system executes an affidavit attesting
(i) to the steps and precautions taken to prevent duplication of the
videotape, and
(ii) subject to clause (2), to the erasure or destruction of all
videotapes made or used during such quarter; and
(E) such owner or officer places or causes each such affidavit, and
affidavits received pursuant to clause (2) (C), to be placed in a file,
open to public inspection, at such system's main office in the community
where the transmission is made or in the nearest community where such
system maintains an office; and
(F) the nonsimultaneous transmission is one that the cable system would
be authorized to transmit under the rules, regulations, and
authorizations of the Federal Communications Commission in effect at the
time of the nonsimultaneous transmission if the transmission had been
made simultaneously, except that this subclause shall not apply to
inadvertent or accidental transmissions.
(2) If a cable system transfers to any person a videotape of a program
nonsimultaneously transmitted by it, such transfer is actionable as an
act of infringement under section 501, and is fully subject to the
remedies provided by sections 502 through 506 and 509, except that,
pursuant to a written, nonprofit contract providing for the equitable
sharing of the costs of such videotape and its transfer, a videotape
nonsimultaneously transmitted by it, in accordance with clause (1), may
be transferred by one cable system in Alaska to another system in
Alaska, by one cable system in Hawaii permitted to make such
nonsimultaneous transmissions to another such cable system in Hawaii, or
by one cable system in Guam, the Northern Mariana Islands, or the Trust
Territory of the Pacific Islands, to another cable system in any of
those three territories, if-
(A) each such contract is available for public inspection in the offices
of the cable systems involved, and a copy of such contract is filed,
within thirty days after such contract is entered into, with the
Copyright Office (which Office shall make each such contract available
for public inspection); and
(B) the cable system to which the videotape is transferred complies with
clause (1) (A), (B), (C) (i), (iii), and (iv), and (D) through (F); and
(C) such system provides a copy of the affidavit required to be made in
accordance with clause (1) (D) to each cable system making a previous
nonsimultaneous transmission of the same videotape.
(3) This subsection shall not be construed to supersede the exclusivity
protection provisions of any existing agreement, or any such agreement
hereafter entered into, between a cable system and a television
broadcast station in the area in which the cable system is located, or a
network with which such station is affiliated.
(4) As used in this subsection, the term "videotape", and each of its
variant forms, means the reproduction of the images and sounds of a
program or programs broadcast by a television broadcast station licensed
by the Federal Communications Commission, regardless of the nature of
the material objects, such as tapes or films, in which the reproduction
is embodied.
(f) Definitions. As used in this section, the following terms and their
variant forms mean the following:
A "primary transmission" is a transmission made to the public by the
transmitting facility whose signals are being received and further
transmitted by the secondary transmission service, regardless of where
or when the performance or display was first transmitted.
A "secondary transmission" is the further transmitting of a primary
transmission simultaneously with the primary transmission, or
nonsimultaneously with the primary transmission if by a "cable system"
not located in whole or in part within the boundary of the forty-eight
contiguous States, Hawaii, or Puerto Rico: *Provided, however*, That a
nonsimultaneous further transmission by a cable system located in Hawaii
of a primary transmission shall be deemed to be a secondary transmission
if the carriage of the television broadcast signal comprising such
further transmission is permissible under the rules, regulations, or
authorizations of the Federal Communications Commission.
A "cable system" is a facility, located in any State, Territory, Trust
Territory, or Possession, that in whole or in part receives signals
transmitted or programs broadcast by one or more television broadcast
stations licensed by the Federal Communications Commission, and makes
secondary transmissions of such signals or programs by wires, cables,
microwave, or other communications channels to subscribing members of
the public who pay for such service. For purposes of determining the
royalty fee under subsection (d)(1), two or more cable systems in
contiguous communities under common ownership or control or operating
from one headend shall be considered as one system.
The "local service area of a primary transmitter", in the case of a
television broadcast station, comprises the area in which such station
is entitled to insist upon its signal being retransmitted by a cable
system pursuant to the rules, regulations, and authorizations of the
Federal Communications Commission in effect on April 15, 1976, or such
station's television market as defined in section 76.55(e) of title 47,
Code of Federal Regulations (as in effect on September 18, 1993), or any
modifications to such television market made, on or after September 18,
1993, pursuant to section 76.55(e) or 76.59 of title 47 of the Code of
Federal Regulations, or in the case of a television broadcast station
licensed by an appropriate governmental authority of Canada or Mexico,
the area in which it would be entitled to insist upon its signal being
retransmitted if it were a television broadcast station subject to such
rules, regulations, and authorizations. In the case of a low power
television station, as defined by the rules and regulations of the
Federal Communications Commission, the "local service area of a primary
transmitter" comprises the area within 35 miles of the transmitter site,
except that in the case of such a station located in a standard
metropolitan statistical area which has one of the 50 largest
populations of all standard metropolitan statistical areas (based on the
1980 decennial census of population taken by the Secretary of Commerce),
the number of miles shall be 20 miles. The "local service area of a
primary transmitter", in the case of a radio broadcast station,
comprises the primary service area of such station, pursuant to the
rules and regulations of the Federal Communications Commission.
A "distant signal equivalent" is the value assigned to the secondary
transmission of any nonnetwork television programming carried by a cable
system in whole or in part beyond the local service area of the primary
transmitter of such programming. It is computed by assigning a value of
one to each independent station and a value of one-quarter to each
network station and noncommercial educational station for the nonnetwork
programming so carried pursuant to the rules, regulations, and
authorizations of the Federal Communications Commission. The foregoing
values for independent, network, and noncommercial educational stations
are subject, however, to the following exceptions and limitations. Where
the rules and regulations of the Federal Communications Commission
require a cable system to omit the further transmission of a particular
program and such rules and regulations also permit the substitution of
another program embodying a performance or display of a work in place of
the omitted transmission, or where such rules and regulations in effect
on the date of enactment of this Act permit a cable system, at its
election, to effect such deletion and substitution of a nonlive program
or to carry additional programs not transmitted by primary transmitters
within whose local service area the cable system is located, no value
shall be assigned for the substituted or additional program; where the
rules, regulations, or authorizations of the Federal Communications
Commission in effect on the date of enactment of this Act permit a cable
system, at its election, to omit the further transmission of a
particular program and such rules, regulations, or authorizations also
permit the substitution of another program embodying a performance or
display of a work in place of the omitted transmission, the value
assigned for the substituted or additional program shall be, in the case
of a live program, the value of one full distant signal equivalent
multiplied by a fraction that has as its numerator the number of days in
the year in which such substitution occurs and as its denominator the
number of days in the year. In the case of a station carried pursuant to
the late-night or specialty programming rules of the Federal
Communications Commission, or a station carried on a part-time basis
where full-time carriage is not possible because the cable system lacks
the activated channel capacity to retransmit on a full-time basis all
signals which it is authorized to carry, the values for independent,
network, and noncommercial educational stations set forth above, as the
case may be, shall be multiplied by a fraction which is equal to the
ratio of the broadcast hours of such station carried by the cable system
to the total broadcast hours of the station.
A "network station" is a television broadcast station that is owned or
operated by, or affiliated with, one or more of the television networks
in the United States providing nationwide transmissions, and that
transmits a substantial part of the programming supplied by such
networks for a substantial part of that station's typical broadcast day.
An "independent station" is a commercial television broadcast station
other than a network station.
A "noncommercial educational station" is a television station that is a
noncommercial educational broadcast station as defined in section 397 of
title 47.
Section 112. Limitations on exclusive rights: Ephemeral recordings [44]
(a)(1) Notwithstanding the provisions of section 106, and except in the
case of a motion picture or other audiovisual work, it is not an
infringement of copyright for a transmitting organization entitled to
transmit to the public a performance or display of a work, under a
license, including a statutory license under section 114(f), or transfer
of the copyright or under the limitations on exclusive rights in sound
recordings specified by section 114 (a) or for a transmitting
organization that is a broadcast radio or television station licensed as
such by the Federal Communications Commission and that makes a broadcast
transmission of a performance of a sound recording in a digital format
on a nonsubscription basis, to make no more than one copy or phonorecord
of a particular transmission program embodying the performance or
display, if-
(A) the copy or phonorecord is retained and used solely by the
transmitting organization that made it, and no further copies or
phonorecords are reproduced from it; and
(B) the copy or phonorecord is used solely for the transmitting
organization's own transmissions within its local service area, or for
purposes of archival preservation or security; and
(C) unless preserved exclusively for archival purposes, the copy or
phonorecord is destroyed within six months from the date the
transmission program was first transmitted to the public.
(2) In a case in which a transmitting organization entitled to make a
copy or phonorecord under paragraph (1) in connection with the
transmission to the public of a performance or display of a work is
prevented from making such copy or phonorecord by reason of the
application by the copyright owner of technical measures that prevent
the reproduction of the work, the copyright owner shall make available
to the transmitting organization the necessary means for permitting the
making of such copy or phonorecord as permitted under that paragraph, if
it is technologically feasible and economically reasonable for the
copyright owner to do so. If the copyright owner fails to do so in a
timely manner in light of the transmitting organization's reasonable
business requirements, the transmitting organization shall not be liable
for a violation of section 1201(a)(1) of this title for engaging in such
activities as are necessary to make such copies or phonorecords as
permitted under paragraph (1) of this subsection.
(b) Notwithstanding the provisions of section 106, it is not an
infringement of copyright for a governmental body or other nonprofit
organization entitled to transmit a performance or display of a work,
under section 110(2) or under the limitations on exclusive rights in
sound recordings specified by section 114(a), to make no more than
thirty copies or phonorecords of a particular transmission program
embodying the performance or display, if
(1) no further copies or phonorecords are reproduced from the copies or
phonorecords made under this clause; and
(2) except for one copy or phonorecord that may be preserved exclusively
for archival purposes, the copies or phonorecords are destroyed within
seven years from the date the transmission program was first transmitted
to the public.
(c) Notwithstanding the provisions of section 106, it is not an
infringement of copyright for a governmental body or other nonprofit
organization to make for distribution no more than one copy or
phonorecord, for each transmitting organization specified in clause (2)
of this subsection, of a particular transmission program embodying a
performance of a nondramatic musical work of a religious nature, or of a
sound recording of such a musical work, if-
(1) there is no direct or indirect charge for making or distributing any
such copies or phonorecords; and
(2) none of such copies or phonorecords is used for any performance
other than a single transmission to the public by a transmitting
organization entitled to transmit to the public a performance of the
work under a license or transfer of the copyright; and
(3) except for one copy or phonorecord that may be preserved exclusively
for archival purposes, the copies or phonorecords are all destroyed
within one year from the date the transmission program was first
transmitted to the public.
(d) Notwithstanding the provisions of section 106, it is not an
infringement of copyright for a governmental body or other nonprofit
organization entitled to transmit a performance of a work under section
110(8) to make no more than ten copies or phonorecords embodying the
performance, or to permit the use of any such copy or phonorecord by any
governmental body or nonprofit organization entitled to transmit a
performance of a work under section 110(8), if-
(1) any such copy or phonorecord is retained and used solely by the
organization that made it, or by a governmental body or nonprofit
organization entitled to transmit a performance of a work under section
110(8), and no further copies or phonorecords are reproduced from it;
and
(2) any such copy or phonorecord is used solely for transmissions
authorized under section 110(8), or for purposes of archival
preservation or security; and
(3) the governmental body or nonprofit organization permitting any use
of any such copy or phonorecord by any governmental body or nonprofit
organization under this subsection does not make any charge for such
use.
(e) Statutory License. (1) A transmitting organization entitled to
transmit to the public a performance of a sound recording under the
limitation on exclusive rights specified by section 114(d)(1)(C)(iv) or
under a statutory license in accordance with section 114(f) is entitled
to a statutory license, under the conditions specified by this
subsection, to make no more than 1 phonorecord of the sound recording
(unless the terms and conditions of the statutory license allow for
more), if the following conditions are satisfied:
(A) The phonorecord is retained and used solely by the transmitting
organization that made it, and no further phonorecords are reproduced
from it.
(B) The phonorecord is used solely for the transmitting organization's
own transmissions originating in the United States under a statutory
license in accordance with section 114(f) or the limitation on exclusive
rights specified by section 114(d)(1)(C)(iv).
(C) Unless preserved exclusively for purposes of archival preservation,
the phonorecord is destroyed within 6 months from the date the sound
recording was first transmitted to the public using the phonorecord.
(D) Phonorecords of the sound recording have been distributed to the
public under the authority of the copyright owner or the copyright owner
authorizes the transmitting entity to transmit the sound recording, and
the transmitting entity makes the phonorecord under this subsection from
a phonorecord lawfully made and acquired under the authority of the
copyright owner.
(2) Notwithstanding any provision of the antitrust laws, any copyright
owners of sound recordings and any transmitting organizations entitled
to a statutory license under this subsection may negotiate and agree
upon royalty rates and license terms and conditions for making
phonorecords of such sound recordings under this section and the
proportionate division of fees paid among copyright owners, and may
designate common agents to negotiate, agree to, pay, or receive such
royalty payments.
(3) No later than 30 days after the date of the enactment of the Digital
Millennium Copyright Act, the Librarian of Congress shall cause notice
to be published in the Federal Register of the initiation of voluntary
negotiation proceedings for the purpose of determining reasonable terms
and rates of royalty payments for the activities specified by paragraph
(1) of this subsection during the period beginning on the date of the
enactment of such Act and ending on December 31, 2000, or such other
date as the parties may agree. Such rates shall include a minimum fee
for each type of service offered by transmitting organizations. Any
copyright owners of sound recordings or any transmitting organizations
entitled to a statutory license under this subsection may submit to the
Librarian of Congress licenses covering such activities with respect to
such sound recordings. The parties to each negotiation proceeding shall
bear their own costs.
(4) In the absence of license agreements negotiated under paragraph (2),
during the 60-day period commencing 6 months after publication of the
notice specified in paragraph (3), and upon the filing of a petition in
accordance with section 803(a)(1), the Librarian of Congress shall,
pursuant to chapter 8, convene a copyright arbitration royalty panel to
determine and publish in the Federal Register a schedule of reasonable
rates and terms which, subject to paragraph (5), shall be binding on all
copyright owners of sound recordings and transmitting organizations
entitled to a statutory license under this subsection during the period
beginning on the date of the enactment of the Digital Millennium
Copyright Act and ending on December 31, 2000, or such other date as the
parties may agree. Such rates shall include a minimum fee for each type
of service offered by transmitting organizations. The copyright
arbitration royalty panel shall establish rates that most clearly
represent the fees that would have been negotiated in the marketplace
between a willing buyer and a willing seller. In determining such rates
and terms, the copyright arbitration royalty panel shall base its
decision on economic, competitive, and programming information presented
by the parties, including-
(A) whether use of the service may substitute for or may promote the
sales of phonorecords or otherwise interferes with or enhances the
copyright owner's traditional streams of revenue; and
(B) the relative roles of the copyright owner and the transmitting
organization in the copyrighted work and the service made available to
the public with respect to relative creative contribution, technological
contribution, capital investment, cost, and risk.
In establishing such rates and terms, the copyright arbitration royalty
panel may consider the rates and terms under voluntary license
agreements negotiated as provided in paragraphs (2) and (3). The
Librarian of Congress shall also establish requirements by which
copyright owners may receive reasonable notice of the use of their sound
recordings under this section, and under which records of such use shall
be kept and made available by transmitting organizations entitled to
obtain a statutory license under this subsection.
(5) License agreements voluntarily negotiated at any time between 1 or
more copyright owners of sound recordings and 1 or more transmitting
organizations entitled to obtain a statutory license under this
subsection shall be given effect in lieu of any determination by a
copyright arbitration royalty panel or decision by the Librarian of
Congress.
(6) Publication of a notice of the initiation of voluntary negotiation
proceedings as specified in paragraph (3) shall be repeated, in
accordance with regulations that the Librarian of Congress shall
prescribe, in the first week of January 2000, and at 2-year intervals
thereafter, except to the extent that different years for the repeating
of such proceedings may be determined in accordance with paragraph (3).
The procedures specified in paragraph (4) shall be repeated, in
accordance with regulations that the Librarian of Congress shall
prescribe, upon filing of a petition in accordance with section 803(a)
(1), during a 60-day period commencing on July 1, 2000, and at 2-year
intervals thereafter, except to the extent that different years for the
repeating of such proceedings may be determined in accordance with
paragraph (3). The procedures specified in paragraph (4) shall be
concluded in accordance with section 802.
(7)(A) Any person who wishes to make a phonorecord of a sound recording
under a statutory license in accordance with this subsection may do so
without infringing the exclusive right of the copyright owner of the
sound recording under section 106(1)
(i) by complying with such notice requirements as the Librarian of
Congress shall prescribe by regulation and by paying royalty fees in
accordance with this subsection; or
(ii) if such royalty fees have not been set, by agreeing to pay such
royalty fees as shall be determined in accordance with this subsection.
(B) Any royalty payments in arrears shall be made on or before the 20th
day of the month next succeeding the month in which the royalty fees are
set.
(8) If a transmitting organization entitled to make a phonorecord under
this subsection is prevented from making such phonorecord by reason of
the application by the copyright owner of technical measures that
prevent the reproduction of the sound recording, the copyright owner
shall make available to the transmitting organization the necessary
means for permitting the making of such phonorecord as permitted under
this subsection, if it is technologically feasible and economically
reasonable for the copyright owner to do so. If the copyright owner
fails to do so in a timely manner in light of the transmitting
organization's reasonable business requirements, the transmitting
organization shall not be liable for a violation of section 1201(a)(1)
of this title for engaging in such activities as are necessary to make
such phonorecords as permitted under this subsection.
(9) Nothing in this subsection annuls, limits, impairs, or otherwise
affects in any way the existence or value of any of the exclusive rights
of the copyright owners in a sound recording, except as otherwise
provided in this subsection, or in a musical work, including the
exclusive rights to reproduce and distribute a sound recording or
musical work, including by means of a digital phonorecord delivery,
under section 106(1), 106(3), and 115, and the right to perform publicly
a sound recording or musical work, including by means of a digital audio
transmission, under sections 106(4) and 106(6).
(f) The transmission program embodied in a copy or phonorecord made
under this section is not subject to protection as a derivative work
under this title except with the express consent of the owners of
copyright in the preexisting works employed in the program.
Section 113. Scope of exclusive rights in pictorial, graphic, and
sculptural works [45]
(a) Subject to the provisions of subsections (b) and (c) of this
section, the exclusive right to reproduce a copyrighted pictorial,
graphic, or sculptural work in copies under section 106 includes the
right to reproduce the work in or on any kind of article, whether useful
or otherwise.
(b) This title does not afford, to the owner of copyright in a work that
portrays a useful article as such, any greater or lesser rights with
respect to the making, distribution, or display of the useful article so
portrayed than those afforded to such works under the law, whether title
17 or the common law or statutes of a State, in effect on December 31,
1977, as held applicable and construed by a court in an action brought
under this title.
(c) In the case of a work lawfully reproduced in useful articles that
have been offered for sale or other distribution to the public,
copyright does not include any right to prevent the making,
distribution, or display of pictures or photographs of such articles in
connection with advertisements or commentaries related to the
distribution or display of such articles, or in connection with news
reports.
(d)(1) In a case in which-
(A) a work of visual art has been incorporated in or made part of a
building in such a way that removing the work from the building will
cause the destruction, distortion, mutilation, or other modification of
the work as described in section 106A(a)(3), and
(B) the author consented to the installation of the work in the building
either before the effective date set forth in section 610(a) of the
Visual Artists Rights Act of 1990, or in a written instrument executed
on or after such effective date that is signed by the owner of the
building and the author and that specifies that installation of the work
may subject the work to destruction, distortion, mutilation, or other
modification, by reason of its removal,
then the rights conferred by paragraphs (2) and (3) of section 106A(a)
shall not apply.
(2) If the owner of a building wishes to remove a work of visual art
which is a part of such building and which can be removed from the
building without the destruction, distortion, mutilation, or other
modification of the work as described in section 106A(a)(3), the
author's rights under paragraphs (2) and (3) of section 106A(a) shall
apply unless-
(A) the owner has made a diligent, good faith attempt without success to
notify the author of the owner's intended action affecting the work of
visual art, or
(B) the owner did provide such notice in writing and the person so
notified failed, within 90 days after receiving such notice, either to
remove the work or to pay for its removal.
For purposes of subparagraph (A), an owner shall be presumed to have
made a diligent, good faith attempt to send notice if the owner sent
such notice by registered mail to the author at the most recent address
of the author that was recorded with the Register of Copyrights pursuant
to paragraph (3). If the work is removed at the expense of the author,
title to that copy of the work shall be deemed to be in the author.
(3) The Register of Copyrights shall establish a system of records
whereby any author of a work of visual art that has been incorporated in
or made part of a building, may record his or her identity and address
with the Copyright Office. The Register shall also establish procedures
under which any such author may update the information so recorded, and
procedures under which owners of buildings may record with the Copyright
Office evidence of their efforts to comply with this subsection.
Section 114. Scope of exclusive rights in sound recordings [46]
(a) The exclusive rights of the owner of copyright in a sound recording
are limited to the rights specified by clauses (1), (2), (3) and (6) of
section 106, and do not include any right of performance under section
106(4).
(b) The exclusive right of the owner of copyright in a sound recording
under clause (1) of section 106 is limited to the right to duplicate the
sound recording in the form of phonorecords or copies that directly or
indirectly recapture the actual sounds fixed in the recording. The
exclusive right of the owner of copyright in a sound recording under
clause (2) of section 106 is limited to the right to prepare a
derivative work in which the actual sounds fixed in the sound recording
are rearranged, remixed, or otherwise altered in sequence or quality.
The exclusive rights of the owner of copyright in a sound recording
under clauses (1) and (2) of section 106 do not extend to the making or
duplication of another sound recording that consists entirely of an
independent fixation of other sounds, even though such sounds imitate or
simulate those in the copyrighted sound recording. The exclusive rights
of the owner of copyright in a sound recording under clauses (1), (2),
and (3) of section 106 do not apply to sound recordings included in
educational television and radio programs (as defined in section 397 of
title 47) distributed or transmitted by or through public broadcasting
entities (as defined by section 118(g)): *Provided*, That copies or
phonorecords of said programs are not commercially distributed by or
through public broadcasting entities to the general public.
(c) This section does not limit or impair the exclusive right to perform
publicly, by means of a phonorecord, any of the works specified by
section 106(4).
(d) Limitations on Exclusive Right. Notwithstanding the provisions of
section 106(6)-
(1) Exempt transmissions and retransmissions. The performance of a sound
recording publicly by means of a digital audio transmission, other than
as a part of an interactive service, is not an infringement of section
106(6) if the performance is part of-
(A) a nonsubscription broadcast transmission;
(B) a retransmission of a nonsubscription broadcast transmission:
*Provided*, That, in the case of a retransmission of a radio station's
broadcast transmission-
(i) the radio station's broadcast transmission is not willfully or
repeatedly retransmitted more than a radius of 150 miles from the site
of the radio broadcast transmitter, however-
(I) the 150 mile limitation under this clause shall not apply when a
nonsubscription broadcast transmission by a radio station licensed by
the Federal Communications Commission is retransmitted on a non-
subscription basis by a terrestrial broadcast station, terrestrial
translator, or terrestrial repeater licensed by the Federal
Communications Commission; and
(II) in the case of a subscription retransmission of a non-subscription
broadcast retransmission covered by subclause (I), the 150 mile radius
shall be measured from the transmitter site of such broadcast
retransmitter;
(ii) the retransmission is of radio station broadcast transmissions that
are
(I) obtained by the retransmitter over the air;
(II) not electronically processed by the retransmitter to deliver
separate and discrete signals; and
(III) retransmitted only within the local communities served by the
retransmitter;
(iii) the radio station's broadcast transmission was being retransmitted
to cable systems (as defined in section 111(f)) by a satellite carrier
on January 1, 1995, and that retransmission was being retransmitted by
cable systems as a separate and discrete signal, and the satellite
carrier obtains the radio station's broadcast transmission in an analog
format: *Provided*, That the broadcast transmission being retransmitted
may embody the programming of no more than one radio station; or
(iv) the radio station's broadcast transmission is made by a
noncommercial educational broadcast station funded on or after January
1, 1995, under section 396(k) of the Communications Act of 1934 (47
U.S.C. 396(k)), consists solely of noncommercial educational and
cultural radio programs, and the retransmission, whether or not
simultaneous, is a nonsubscription terrestrial broadcast retransmission;
or
(C) a transmission that comes within any of the following categories-
(i) a prior or simultaneous transmission incidental to an exempt
transmission, such as a feed received by and then retransmitted by an
exempt transmitter: *Provided*, That such incidental transmissions do
not include any subscription transmission directly for reception by
members of the public;
(ii) a transmission within a business establishment, confined to its
premises or the immediately surrounding vicinity;
(iii) a retransmission by any retransmitter, including a multichannel
video programming distributor as defined in section 602(12) of the
Communications Act of 1934 (47 U.S.C. 522 (12)), of a transmission by a
transmitter licensed to publicly perform the sound recording as a part
of that transmission, if the retransmission is simultaneous with the
licensed transmission and authorized by the transmitter; or
(iv) a transmission to a business establishment for use in the ordinary
course of its business: *Provided*, That the business recipient does not
retransmit the transmission outside of its premises or the immediately
surrounding vicinity, and that the transmission does not exceed the
sound recording performance complement. Nothing in this clause shall
limit the scope of the exemption in clause (ii).
(2) Statutory licensing of certain transmissions.-
The performance of a sound recording publicly by means of a subscription
digital audio transmission not exempt under paragraph (1), an eligible
nonsubscription transmission, or a transmission not exempt under
paragraph (1) that is made by a preexisting satellite digital audio
radio service shall be subject to statutory licensing, in accordance
with subsection (f) if-
(A)(i) the transmission is not part of an interactive service;
(ii) except in the case of a transmission to a business establishment,
the transmitting entity does not automatically and intentionally cause
any device receiving the transmission to switch from one program channel
to another; and
(iii) except as provided in section 1002(e), the transmission of the
sound recording is accompanied, if technically feasible, by the
information encoded in that sound recording, if any, by or under the
authority of the copyright owner of that sound recording, that
identifies the title of the sound recording, the featured recording
artist who performs on the sound recording, and related information,
including information concerning the underlying musical work and its
writer;
(B) in the case of a subscription transmission not exempt under
paragraph (1) that is made by a preexisting subscription service in the
same transmission medium used by such service on July 31, 1998, or in
the case of a transmission not exempt under paragraph (1) that is made
by a preexisting satellite digital audio radio service-
(i) the transmission does not exceed the sound recording performance
complement; and
(ii) the transmitting entity does not cause to be published by means of
an advance program schedule or prior announcement the titles of the
specific sound recordings or phonorecords embodying such sound
recordings to be transmitted; and
(C) in the case of an eligible nonsubscription transmission or a
subscription transmission not exempt under paragraph (1) that is made by
a new subscription service or by a preexisting subscription service
other than in the same transmission medium used by such service on July
31, 1998-
(i) the transmission does not exceed the sound recording performance
complement, except that this requirement shall not apply in the case of
a retransmission of a broadcast transmission if the retransmission is
made by a transmitting entity that does not have the right or ability to
control the programming of the broadcast station making the broadcast
transmission, unless-
(I) the broadcast station makes broadcast transmissions-
(aa) in digital format that regularly exceed the sound recording
performance complement; or
(bb) in analog format, a substantial portion of which, on a weekly
basis, exceed the sound recording performance complement; and
(II) the sound recording copyright owner or its representative has
notified the transmitting entity in writing that broadcast transmissions
of the copyright owner's sound recordings exceed the sound recording
performance complement as provided in this clause;
(ii) the transmitting entity does not cause to be published, or induce
or facilitate the publication, by means of an advance program schedule
or prior announcement, the titles of the specific sound recordings to be
transmitted, the phonorecords embodying such sound recordings, or, other
than for illustrative purposes, the names of the featured recording
artists, except that this clause does not disqualify a transmitting
entity that makes a prior announcement that a particular artist will be
featured within an unspecified future time period, and in the case of a
retransmission of a broadcast transmission by a transmitting entity that
does not have the right or ability to control the programming of the
broadcast transmission, the requirement of this clause shall not apply
to a prior oral announcement by the broadcast station, or to an advance
program schedule published, induced, or facilitated by the broadcast
station, if the transmitting entity does not have actual knowledge and
has not received written notice from the copyright owner or its
representative that the broadcast station publishes or induces or
facilitates the publication of such advance program schedule, or if such
advance program schedule is a schedule of classical music programming
published by the broadcast station in the same manner as published by
that broadcast station on or before September 30, 1998;
(iii) the transmission-
(I) is not part of an archived program of less than 5 hours duration;
(II) is not part of an archived program of 5 hours or greater in
duration that is made available for a period exceeding 2 weeks;
(III) is not part of a continuous program which is of less than 3 hours
duration; or
(IV) is not part of an identifiable program in which performances of
sound recordings are rendered in a predetermined order, other than an
archived or continuous program, that is transmitted at-
(aa) more than 3 times in any 2-week period that have been publicly
announced in advance, in the case of a program of less than 1 hour in
duration, or
(bb) more than 4 times in any 2-week period that have been publicly
announced in advance, in the case of a program of 1 hour or more in
duration, except that the requirement of this subclause shall not apply
in the case of a retransmission of a broadcast transmission by a
transmitting entity that does not have the right or ability to control
the programming of the broadcast transmission, unless the transmitting
entity is given notice in writing by the copyright owner of the sound
recording that the broadcast station makes broadcast transmissions that
regularly violate such requirement;
(iv) the transmitting entity does not knowingly perform the sound
recording, as part of a service that offers transmissions of visual
images contemporaneously with transmissions of sound recordings, in a
manner that is likely to cause confusion, to cause mistake, or to
deceive, as to the affiliation, connection, or association of the
copyright owner or featured recording artist with the transmitting
entity or a particular product or service advertised by the transmitting
entity, or as to the origin, sponsorship, or approval by the copyright
owner or featured recording artist of the activities of the transmitting
entity other than the performance of the sound recording itself;
(v) the transmitting entity cooperates to prevent, to the extent
feasible without imposing substantial costs or burdens, a transmission
recipient or any other person or entity from automatically scanning the
transmitting entity's transmissions alone or together with transmissions
by other transmitting entities in order to select a particular sound
recording to be transmitted to the transmission recipient, except that
the requirement of this clause shall not apply to a satellite digital
audio service that is in operation, or that is licensed by the Federal
Communications Commission, on or before July 31, 1998;
(vi) the transmitting entity takes no affirmative steps to cause or
induce the making of a phonorecord by the transmission recipient, and if
the technology used by the transmitting entity enables the transmitting
entity to limit the making by the transmission recipient of phonorecords
of the transmission directly in a digital format, the transmitting
entity sets such technology to limit such making of phonorecords to the
extent permitted by such technology;
(vii) phonorecords of the sound recording have been distributed to the
public under the authority of the copyright owner or the copyright owner
authorizes the transmitting entity to transmit the sound recording, and
the transmitting entity makes the transmission from a phonorecord
lawfully made under the authority of the copyright owner, except that
the requirement of this clause shall not apply to a retransmission of a
broadcast transmission by a transmitting entity that does not have the
right or ability to control the programming of the broadcast
transmission, unless the transmitting entity is given notice in writing
by the copyright owner of the sound recording that the broadcast station
makes broadcast transmissions that regularly violate such requirement;
(viii) the transmitting entity accommodates and does not interfere with
the transmission of technical measures that are widely used by sound
recording copyright owners to identify or protect copyrighted works, and
that are technically feasible of being transmitted by the transmitting
entity without imposing substantial costs on the transmitting entity or
resulting in perceptible aural or visual degradation of the digital
signal, except that the requirement of this clause shall not apply to a
satellite digital audio service that is in operation, or that is
licensed under the authority of the Federal Communications Commission,
on or before July 31, 1998, to the extent that such service has
designed, developed, or made commitments to procure equipment or
technology that is not compatible with such technical measures before
such technical measures are widely adopted by sound recording copyright
owners; and
(ix) the transmitting entity identifies in textual data the sound
recording during, but not before, the time it is performed, including
the title of the sound recording, the title of the phonorecord embodying
such sound recording, if any, and the featured recording artist, in a
manner to permit it to be displayed to the transmission recipient by the
device or technology intended for receiving the service provided by the
transmitting entity, except that the obligation in this clause shall not
take effect until 1 year after the date of the enactment of the Digital
Millennium Copyright Act and shall not apply in the case of a
retransmission of a broadcast transmission by a transmitting entity that
does not have the right or ability to control the programming of the
broadcast transmission, or in the case in which devices or technology
intended for receiving the service provided by the transmitting entity
that have the capability to display such textual data are not common in
the marketplace.
(3) Licenses for transmissions by interactive services.-
(A) No interactive service shall be granted an exclusive license under
section 106(6) for the performance of a sound recording publicly by
means of digital audio transmission for a period in excess of 12 months,
except that with respect to an exclusive license granted to an
interactive service by a licensor that holds the copyright to 1,000 or
fewer sound recordings, the period of such license shall not exceed 24
months: *Provided, however*, That the grantee of such exclusive license
shall be ineligible to receive another exclusive license for the
performance of that sound recording for a period of 13 months from the
expiration of the prior exclusive license.
(B) The limitation set forth in subparagraph (A) of this paragraph shall
not apply if-
(i) the licensor has granted and there remain in effect licenses under
section 106(6) for the public performance of sound recordings by means
of digital audio transmission by at least 5 different interactive
services; *Provided, however*, That each such license must be for a
minimum of 10 percent of the copyrighted sound recordings owned by the
licensor that have been licensed to interactive services, but in no
event less than 50 sound recordings; or
(ii) the exclusive license is granted to perform publicly up to 45
seconds of a sound recording and the sole purpose of the performance is
to promote the distribution or performance of that sound recording.
(C) Notwithstanding the grant of an exclusive or nonexclusive license of
the right of public performance under section 106(6), an interactive
service may not publicly perform a sound recording unless a license has
been granted for the public performance of any copyrighted musical work
contained in the sound recording: *Provided*, That such license to
publicly perform the copyrighted musical work may be granted either by a
performing rights society representing the copyright owner or by the
copyright owner.
(D) The performance of a sound recording by means of a retransmission of
a digital audio transmission is not an infringement of section 106(6)
if-
(i) the retransmission is of a transmission by an interactive service
licensed to publicly perform the sound recording to a particular member
of the public as part of that transmission; and
(ii) the retransmission is simultaneous with the licensed transmission,
authorized by the transmitter, and limited to that particular member of
the public intended by the interactive service to be the recipient of
the transmission.
(E) For the purposes of this paragraph-
(i) a "licensor" shall include the licensing entity and any other entity
under any material degree of common ownership, management, or control
that owns copyrights in sound recordings; and
(ii) a "performing rights society" is an association or corporation that
licenses the public performance of nondramatic musical works on behalf
of the copyright owner, such as the American Society of Composers,
Authors and Publishers, Broadcast Music, Inc., and SESAC, Inc.
(4) Rights not otherwise limited.-
(A) Except as expressly provided in this section, this section does not
limit or impair the exclusive right to perform a sound recording
publicly by means of a digital audio transmission under section 106(6).
(B) Nothing in this section annuls or limits in any way-
(i) the exclusive right to publicly perform a musical work, including by
means of a digital audio transmission, under section 106(4);
(ii) the exclusive rights in a sound recording or the musical work
embodied therein under sections 106(1), 106(2) and 106(3); or
(iii) any other rights under any other clause of section 106, or
remedies available under this title as such rights or remedies exist
either before or after the date of enactment of the Digital Performance
Right in Sound Recordings Act of 1995.
(C) Any limitations in this section on the exclusive right under section
106(6) apply only to the exclusive right under section 106(6) and not to
any other exclusive rights under section 106. Nothing in this section
shall be construed to annul, limit, impair or otherwise affect in any
way the ability of the owner of a copyright in a sound recording to
exercise the rights under sections 106(1), 106(2) and 106(3), or to
obtain the remedies available under this title pursuant to such rights,
as such rights and remedies exist either before or after the date of
enactment of the Digital Performance Right in Sound Recordings Act of
1995.
(e) Authority for Negotiations.-
(1) Notwithstanding any provision of the antitrust laws, in negotiating
statutory licenses in accordance with subsection (f), any copyright
owners of sound recordings and any entities performing sound recordings
affected by this section may negotiate and agree upon the royalty rates
and license terms and conditions for the performance of such sound
recordings and the proportionate division of fees paid among copyright
owners, and may designate common agents on a nonexclusive basis to
negotiate, agree to, pay, or receive payments.
(2) For licenses granted under section 106(6), other than statutory
licenses, such as for performances by interactive services or
performances that exceed the sound recording performance complement
(A) copyright owners of sound recordings affected by this section may
designate common agents to act on their behalf to grant licenses and
receive and remit royalty payments: *Provided*, That each copyright
owner shall establish the royalty rates and material license terms and
conditions unilaterally, that is, not in agreement, combination, or
concert with other copyright owners of sound recordings; and
(B) entities performing sound recordings affected by this section may
designate common agents to act on their behalf to obtain licenses and
collect and pay royalty fees: *Provided*, That each entity performing
sound recordings shall determine the royalty rates and material license
terms and conditions unilaterally, that is, not in agreement,
combination, or concert with other entities performing sound recordings.
(f) Licenses for Certain Nonexempt Transmissions. [47]
(1)(A) [48] No later than 30 days after the enactment of the Digital
Performance Right in Sound Recordings Act of 1995, the Librarian of
Congress shall cause notice to be published in the Federal Register of
the initiation of voluntary negotiation proceedings for the purpose of
determining reasonable terms and rates of royalty payments for
subscription transmissions by preexisting subscription services and
transmissions by preexisting satellite digital audio radio services
specified by subsection (d)(2) of this section during the period
beginning on the effective date of such Act and ending on December 31,
2001, or, if a copyright arbitration royalty panel is convened, ending
30 days after the Librarian issues and publishes in the Federal Register
an order adopting the determination of the copyright arbitration royalty
panel or an order setting the terms and rates (if the Librarian rejects
the panel's determination). Such terms and rates shall distinguish among
the different types of digital audio transmission services then in
operation. Any copyright owners of sound recordings, preexisting
subscription services, or preexisting satellite digital audio radio
services may submit to the Librarian of Congress licenses covering such
subscription transmissions with respect to such sound recordings. The
parties to each negotiation proceeding shall bear their own costs.
(B) In the absence of license agreements negotiated under subparagraph
(A), during the 60-day period commencing 6 months after publication of
the notice specified in subparagraph (A), and upon the filing of a
petition in accordance with section 803(a)(1), the Librarian of Congress
shall, pursuant to chapter 8, convene a copyright arbitration royalty
panel to determine and publish in the Federal Register a schedule of
rates and terms which, subject to paragraph (3), shall be binding on all
copyright owners of sound recordings and entities performing sound
recordings affected by this paragraph. In establishing rates and terms
for preexisting subscription services and preexisting satellite digital
audio radio services, in addition to the objectives set forth in section
801(b)(1), the copyright arbitration royalty panel may consider the
rates and terms for comparable types of subscription digital audio
transmission services and comparable circumstances under voluntary
license agreements negotiated as provided in subparagraph (A).
(C)(i) Publication of a notice of the initiation of voluntary
negotiation proceedings as specified in subparagraph (A) shall be
repeated, in accordance with regulations that the Librarian of Congress
shall prescribe-
(I) no later than 30 days after a petition is filed by any copyright
owners of sound recordings, any preexisting subscription services, or
any preexisting satellite digital audio radio services indicating that a
new type of subscription digital audio transmission service on which
sound recordings are performed is or is about to become operational; and
(II) in the first week of January 2001, and at 5-year intervals
thereafter.
(ii) The procedures specified in subparagraph (B) shall be repeated, in
accordance with regulations that the Librarian of Congress shall
prescribe, upon filing of a petition in accordance with section 803(a)
(1) during a 60-day period commencing-
(I) 6 months after publication of a notice of the initiation of
voluntary negotiation proceedings under subparagraph (A) pursuant to a
petition under clause (i)(I) of this subparagraph; or
(II) on July 1, 2001, and at 5-year intervals thereafter.
(iii) The procedures specified in subparagraph (B) shall be concluded in
accordance with section 802.
(2)(A) No later than 30 days after the date of the enactment of the
Digital Millennium Copyright Act, the Librarian of Congress shall cause
notice to be published in the Federal Register of the initiation of
voluntary negotiation proceedings for the purpose of determining
reasonable terms and rates of royalty payments for public performances
of sound recordings by means of eligible nonsubscription transmissions
and transmissions by new subscription services specified by subsection
(d)(2) during the period beginning on the date of the enactment of such
Act and ending on December 31, 2000, or such other date as the parties
may agree. Such rates and terms shall distinguish among the different
types of eligible nonsubscription transmission services and new
subscription services then in operation and shall include a minimum fee
for each such type of service. Any copyright owners of sound recordings
or any entities performing sound recordings affected by this paragraph
may submit to the Librarian of Congress licenses covering such eligible
nonsubscription transmissions and new subscription services with respect
to such sound recordings. The parties to each negotiation proceeding
shall bear their own costs.
(B) In the absence of license agreements negotiated under subparagraph
(A), during the 60-day period commencing 6 months after publication of
the notice specified in subparagraph (A), and upon the filing of a
petition in accordance with section 803(a)(1), the Librarian of Congress
shall, pursuant to chapter 8, convene a copyright arbitration royalty
panel to determine and publish in the Federal Register a schedule of
rates and terms which, subject to paragraph (3), shall be binding on all
copyright owners of sound recordings and entities performing sound
recordings affected by this paragraph during the period beginning on the
date of the enactment of the Digital Millennium Copyright Act and ending
on December 31, 2000, or such other date as the parties may agree. Such
rates and terms shall distinguish among the different types of eligible
nonsubscription transmission services then in operation and shall
include a minimum fee for each such type of service, such differences to
be based on criteria including, but not limited to, the quantity and
nature of the use of sound recordings and the degree to which use of the
service may substitute for or may promote the purchase of phonorecords
by consumers. In establishing rates and terms for transmissions by
eligible nonsubscription services and new subscription services, the
copyright arbitration royalty panel shall establish rates and terms that
most clearly represent the rates and terms that would have been
negotiated in the marketplace between a willing buyer and a willing
seller. In determining such rates and terms, the copyright arbitration
royalty panel shall base its decision on economic, competitive and
programming information presented by the parties, including-
(i) whether use of the service may substitute for or may promote the
sales of phonorecords or otherwise may interfere with or may enhance the
sound recording copyright owner's other streams of revenue from its
sound recordings; and
(ii) the relative roles of the copyright owner and the transmitting
entity in the copyrighted work and the service made available to the
public with respect to relative creative contribution, technological
contribution, capital in-vestment, cost, and risk.
In establishing such rates and terms, the copyright arbitration royalty
panel may consider the rates and terms for comparable types of digital
audio transmission services and comparable circumstances under voluntary
license agreements negotiated under subparagraph (A).
(C)(i) Publication of a notice of the initiation of voluntary
negotiation proceedings as specified in subparagraph (A) shall be
repeated in accordance with regulations that the Librarian of Congress
shall prescribe-
(I) no later than 30 days after a petition is filed by any copyright
owners of sound recordings or any eligible nonsubscription service or
new subscription service indicating that a new type of eligible
nonsubscription service or new subscription service on which sound
recordings are performed is or is about to become operational; and
(II) in the first week of January 2000, and at 2-year intervals
thereafter, except to the extent that different years for the repeating
of such proceedings may be determined in accordance with subparagraph
(A).
(ii) The procedures specified in subparagraph (B) shall be repeated, in
accordance with regulations that the Librarian of Congress shall
prescribe, upon filing of a petition in accordance with section 803(a)
(1) during a 60-day period commencing-
(I) 6 months after publication of a notice of the initiation of
voluntary negotiation proceedings under subparagraph (A) pursuant to a
petition under clause (i)(I); or
(II) on July 1, 2000, and at 2-year intervals thereafter, except to the
extent that different years for the repeating of such proceedings may be
determined in accordance with subparagraph (A).
(iii) The procedures specified in subparagraph (B) shall be concluded in
accordance with section 802.
(3) License agreements voluntarily negotiated at any time between 1 or
more copyright owners of sound recordings and 1 or more entities
performing sound recordings shall be given effect in lieu of any
determination by a copyright arbitration royalty panel or decision by
the Librarian of Congress.
(4)(A) The Librarian of Congress shall also establish requirements by
which copyright owners may receive reasonable notice of the use of their
sound recordings under this section, and under which records of such use
shall be kept and made available by entities performing sound
recordings.
(B) Any person who wishes to perform a sound recording publicly by means
of a transmission eligible for statutory licensing under this subsection
may do so without infringing the exclusive right of the copyright owner
of the sound recording-
(i) by complying with such notice requirements as the Librarian of
Congress shall prescribe by regulation and by paying royalty fees in
accordance with this subsection; or
(ii) if such royalty fees have not been set, by agreeing to pay such
royalty fees as shall be determined in accordance with this subsection.
(C) Any royalty payments in arrears shall be made on or before the
twentieth day of the month next succeeding the month in which the
royalty fees are set.
(g) Proceeds From Licensing of Transmissions.-
(1) Except in the case of a transmission licensed under a statutory
license in accordance with subsection (f) of this section-
(A) a featured recording artist who performs on a sound recording that
has been licensed for a transmission shall be entitled to receive
payments from the copyright owner of the sound recording in accordance
with the terms of the artist's contract; and
(B) a nonfeatured recording artist who performs on a sound recording
that has been licensed for a transmission shall be entitled to receive
payments from the copyright owner of the sound recording in accordance
with the terms of the nonfeatured recording artist's applicable contract
or other applicable agreement.
(2) The copyright owner of the exclusive right under section 106(6) of
this title to publicly perform a sound recording by means of a digital
audio transmission shall allocate to recording artists in the following
manner its receipts from the statutory licensing of transmission
performances of the sound recording in accordance with subsection (f) of
this section:
(A) 21/2 percent of the receipts shall be deposited in an escrow account
managed by an independent administrator jointly appointed by copyright
owners of sound recordings and the American Federation of Musicians (or
any successor entity) to be distributed to nonfeatured musicians
(whether or not members of the American Federation of Musicians) who
have performed on sound recordings.
(B) 21/2 percent of the receipts shall be deposited in an escrow account
managed by an independent administrator jointly appointed by copyright
owners of sound recordings and the American Federation of Television and
Radio Artists (or any successor entity) to be distributed to nonfeatured
vocalists (whether or not members of the American Federation of
Television and Radio Artists) who have performed on sound recordings.
(C) 45 percent of the receipts shall be allocated, on a per sound
recording basis, to the recording artist or artists featured on such
sound recording (or the persons conveying rights in the artists'
performance in the sound recordings).
(h) Licensing to Affiliates.-
(1) If the copyright owner of a sound recording licenses an affiliated
entity the right to publicly perform a sound recording by means of a
digital audio transmission under section 106(6), the copyright owner
shall make the licensed sound recording available under section 106(6)
on no less favorable terms and conditions to all bona fide entities that
offer similar services, except that, if there are material differences
in the scope of the requested license with respect to the type of
service, the particular sound recordings licensed, the frequency of use,
the number of subscribers served, or the duration, then the copyright
owner may establish different terms and conditions for such other
services.
(2) The limitation set forth in paragraph (1) of this subsection shall
not apply in the case where the copyright owner of a sound recording
licenses-
(A) an interactive service; or
(B) an entity to perform publicly up to 45 seconds of the sound
recording and the sole purpose of the performance is to promote the
distribution or performance of that sound recording.
(i) No Effect on Royalties for Underlying Works. License fees payable
for the public performance of sound recordings under section 106(6)
shall not be taken into account in any administrative, judicial, or
other governmental proceeding to set or adjust the royalties payable to
copyright owners of musical works for the public performance of their
works. It is the intent of Congress that royalties payable to copyright
owners of musical works for the public performance of their works shall
not be diminished in any respect as a result of the rights granted by
section 106(6).
(j) Definitions. As used in this section, the following terms have the
following meanings:
(l) An "affiliated entity" is an entity engaging in digital audio
transmissions covered by section 106(6), other than an interactive
service, in which the licensor has any direct or indirect partnership or
any ownership interest amounting to 5 percent or more of the outstanding
voting or non-voting stock.
(2) An "archived program" is a predetermined program that is available
repeatedly on the demand of the transmission recipient and that is
performed in the same order from the beginning, except that an archived
program shall not include a re-corded event or broadcast transmission
that makes no more than an incidental use of sound recordings, as long
as such recorded event or broadcast transmission does not contain an
entire sound recording or feature a particular sound recording.
(3) A "broadcast" transmission is a transmission made by a terrestrial
broadcast station licensed as such by the Federal Communications
Commission.
(4) A "continuous program" is a predetermined program that is
continuously performed in the same order and that is accessed at a point
in the program that is beyond the control of the transmission recipient.
(5) A "digital audio transmission" is a digital transmission as defined
in section 101, that embodies the transmission of a sound recording.
This term does not include the transmission of any audiovisual work.
(6) An "eligible nonsubscription transmission" is a noninteractive
nonsubscription digital audio transmission not exempt under subsection
(d)(1) that is made as part of a service that provides audio programming
consisting, in whole or in part, of performances of sound recordings,
including retransmissions of broadcast transmissions, if the primary
purpose of the service is to provide to the public such audio or other
entertainment programming, and the primary purpose of the service is not
to sell, advertise, or promote particular products or services other
than sound recordings, live concerts, or other music-related events.
(7) An "interactive service" is one that enables a member of the public
to receive a transmission of a program specially created for the
recipient, or on request, a transmission of a particular sound
recording, whether or not as part of a program, which is selected by or
on behalf of the recipient. The ability of individuals to request that
particular sound recordings be performed for reception by the public at
large, or in the case of a subscription service, by all subscribers of
the service, does not make a service interactive, if the programming on
each channel of the service does not substantially consist of sound
recordings that are performed within 1 hour of the request or at a time
designated by either the transmitting entity or the individual making
such request. If an entity offers both interactive and noninteractive
services (either concurrently or at different times), the noninteractive
component shall not be treated as part of an interactive service.
(8) A "new subscription service" is a service that performs sound
recordings by means of noninteractive subscription digital audio
transmissions and that is not a preexisting subscription service or a
preexisting satellite digital audio radio service.
(9) A "nonsubscription" transmission is any transmission that is not a
subscription transmission.
(10) A "preexisting satellite digital audio radio service" is a
subscription satellite digital audio radio service provided pursuant to
a satellite digital audio radio service license issued by the Federal
Communications Commission on or before July 31, 1998, and any renewal of
such license to the extent of the scope of the original license, and may
include a limited number of sample channels representative of the
subscription service that are made available on a nonsubscription basis
in order to promote the subscription service.
(11) A "preexisting subscription service" is a service that performs
sound recordings by means of noninteractive audio-only subscription
digital audio transmissions, which was in existence and was making such
transmissions to the public for a fee on or before July 31, 1998, and
may include a limited number of sample channels representative of the
subscription service that are made available on a nonsubscription basis
in order to promote the subscription service.
(12) A "retransmission" is a further transmission of an initial
transmission, and includes any further retransmission of the same
transmission. Except as provided in this section, a transmission
qualifies as a "retransmission" only if it is simultaneous with the
initial transmission. Nothing in this definition shall be construed to
exempt a transmission that fails to satisfy a separate element required
to qualify for an exemption under section 114(d)(1).
(13) The "sound recording performance complement" is the transmission
during any 3-hour period, on a particular channel used by a transmitting
entity, of no more than-
(A) 3 different selections of sound recordings from any one phonorecord
lawfully distributed for public performance or sale in the United
States, if no more than 2 such selections are transmitted consecutively;
or
(B) 4 different selections of sound recordings-
(i) by the same featured recording artist; or
(ii) from any set or compilation of phonorecords lawfully distributed
together as a unit for public performance or sale in the United States,
if no more than three such selections are transmitted consecutively:
*Provided*, That the transmission of selections in excess of the
numerical limits provided for in clauses (A) and (B) from multiple
phonorecords shall nonetheless qualify as a sound recording performance
complement if the programming of the multiple phonorecords was not
willfully intended to avoid the numerical limitations prescribed in such
clauses.
(14) A "subscription" transmission is a transmission that is controlled
and limited to particular recipients, and for which consideration is
required to be paid or otherwise given by or on behalf of the recipient
to receive the transmission or a package of transmissions including the
transmission.
(15) A "transmission" is either an initial transmission or a
retransmission.
Section 115. Scope of exclusive rights in nondramatic musical works:
Compulsory license for making and distributing phonorecords [49]
In the case of nondramatic musical works, the exclusive rights provided
by clauses (1) and (3) of section 106, to make and to distribute
phonorecords of such works, are subject to compulsory licensing under
the conditions specified by this section.
(a) Availability and Scope of Compulsory License.-
(1) When phonorecords of a nondramatic musical work have been
distributed to the public in the United States under the authority of
the copyright owner, any other person, including those who make
phonorecords or digital phonorecord deliveries, may, by complying with
the provisions of this section, obtain a compulsory license to make and
distribute phonorecords of the work. A person may obtain a compulsory
license only if his or her primary purpose in making phonorecords is to
distribute them to the public for private use, including by means of a
digital phonorecord delivery. A person may not obtain a compulsory
license for use of the work in the making of phonorecords duplicating a
sound recording fixed by another, unless:
(i) such sound recording was fixed lawfully; and
(ii) the making of the phonorecords was authorized by the owner of
copyright in the sound recording or, if the sound recording was fixed
before February 15, 1972, by any person who fixed the sound recording
pursuant to an express license from the owner of the copyright in the
musical work or pursuant to a valid compulsory license for use of such
work in a sound recording.
(2) A compulsory license includes the privilege of making a musical
arrangement of the work to the extent necessary to conform it to the
style or manner of interpretation of the performance involved, but the
arrangement shall not change the basic melody or fundamental character
of the work, and shall not be subject to protection as a derivative work
under this title, except with the express consent of the copyright
owner.
(b) Notice of Intention to Obtain Compulsory License.-
(1) Any person who wishes to obtain a compulsory license under this
section shall, before or within thirty days after making, and before
distributing any phonorecords of the work, serve notice of intention to
do so on the copyright owner. If the registration or other public
records of the Copyright Office do not identify the copyright owner and
include an address at which notice can be served, it shall be sufficient
to file the notice of intention in the Copyright Office. The notice
shall comply, in form, content, and manner of service, with requirements
that the Register of Copyrights shall prescribe by regulation.
(2) Failure to serve or file the notice required by clause (1)
forecloses the possibility of a compulsory license and, in the absence
of a negotiated license, renders the making and distribution of
phonorecords actionable as acts of infringement under section 501 and
fully subject to the remedies provided by sections 502 through 506 and
509.
(c) Royalty Payable Under Compulsory License. [50]-
(1) To be entitled to receive royalties under a compulsory license, the
copyright owner must be identified in the registration or other public
records of the Copyright Office. The owner is entitled to royalties for
phonorecords made and distributed after being so identified, but is not
entitled to recover for any phonorecords previously made and
distributed.
(2) Except as provided by clause (1), the royalty under a compulsory
license shall be payable for every phonorecord made and distributed in
accordance with the license. For this purpose, and other than as
provided in paragraph (3), a phonorecord is considered "distributed" if
the person exercising the compulsory license has voluntarily and
permanently parted with its possession. With respect to each work
embodied in the phonorecord, the royalty shall be either two and three-
fourths cents, or one-half of one cent per minute of playing time or
fraction thereof, whichever amount is larger. [51]
(3)(A) A compulsory license under this section includes the right of the
compulsory licensee to distribute or authorize the distribution of a
phonorecord of a nondramatic musical work by means of a digital
transmission which constitutes a digital phonorecord delivery,
regardless of whether the digital transmission is also a public
performance of the sound recording under section 106(6) of this title or
of any nondramatic musical work embodied therein under section 106(4) of
this title. For every digital phonorecord delivery by or under the
authority of the compulsory licensee-
(i) on or before December 31, 1997, the royalty payable by the
compulsory licensee shall be the royalty prescribed under paragraph (2)
and chapter 8 of this title; and
(ii) on or after January 1, 1998, the royalty payable by the compulsory
licensee shall be the royalty prescribed under subparagraphs (B) through
(F) and chapter 8 of this title.
(B) Notwithstanding any provision of the antitrust laws, any copyright
owners of nondramatic musical works and any persons entitled to obtain a
compulsory license under subsection (a)(1) may negotiate and agree upon
the terms and rates of royalty payments under this paragraph and the
proportionate division of fees paid among copyright owners, and may
designate common agents to negotiate, agree to, pay or receive such
royalty payments. Such authority to negotiate the terms and rates of
royalty payments includes, but is not limited to, the authority to
negotiate the year during which the royalty rates prescribed under
subparagraphs (B) through (F) and chapter 8 of this title shall next be
determined.
(C) During the period of June 30, 1996, through December 31, 1996, the
Librarian of Congress shall cause notice to be published in the Federal
Register of the initiation of voluntary negotiation proceedings for the
purpose of determining reasonable terms and rates of royalty payments
for the activities specified by subparagraph (A) during the period
beginning January 1, 1998, and ending on the effective date of any new
terms and rates established pursuant to subparagraph (C), (D) or (F), or
such other date (regarding digital phonorecord deliveries) as the
parties may agree. Such terms and rates shall distinguish between (i)
digital phonorecord deliveries where the reproduction or distribution of
a phonorecord is incidental to the transmission which constitutes the
digital phonorecord delivery, and (ii) digital phonorecord deliveries in
general. Any copyright owners of nondramatic musical works and any
persons entitled to obtain a compulsory license under subsection (a)(1)
may submit to the Librarian of Congress licenses covering such
activities. The parties to each negotiation proceeding shall bear their
own costs.
(D) In the absence of license agreements negotiated under subparagraphs
(B) and (C), upon the filing of a petition in accordance with section
803(a)(1), the Librarian of Congress shall, pursuant to chapter 8,
convene a copyright arbitration royalty panel to determine a schedule of
rates and terms which, subject to subparagraph (E), shall be binding on
all copyright owners of nondramatic musical works and persons entitled
to obtain a compulsory license under subsection (a)(1) during the period
beginning January 1, 1998, and ending on the effective date of any new
terms and rates established pursuant to subparagraph (C), (D) or (F), or
such other date (regarding digital phonorecord deliveries) as may be
determined pursuant to subparagraphs (B) and (C). Such terms and rates
shall distinguish between (i) digital phonorecord deliveries where the
reproduction or distribution of a phonorecord is incidental to the
transmission which constitutes the digital phonorecord delivery, and
(ii) digital phonorecord deliveries in general. In addition to the
objectives set forth in section 801(b)(1), in establishing such rates
and terms, the copyright arbitration royalty panel may consider rates
and terms under voluntary license agreements negotiated as provided in
subparagraphs (B) and (C). The royalty rates payable for a compulsory
license for a digital phonorecord delivery under this section shall be
established de novo and no precedential effect shall be given to the
amount of the royalty payable by a compulsory licensee for digital
phonorecord deliveries on or before December 31, 1997. The Librarian of
Congress shall also establish requirements by which copyright owners may
receive reasonable notice of the use of their works under this section,
and under which records of such use shall be kept and made available by
persons making digital phonorecord deliveries.
(E)(i) License agreements voluntarily negotiated at any time between one
or more copyright owners of nondramatic musical works and one or more
persons entitled to obtain a compulsory license under subsection (a)(1)
shall be given effect in lieu of any determination by the Librarian of
Congress. Subject to clause (ii), the royalty rates determined pursuant
to subparagraph (C), (D) or (F) shall be given effect in lieu of any
contrary royalty rates specified in a contract pursuant to which a
recording artist who is the author of a nondramatic musical work grants
a license under that person's exclusive rights in the musical work under
paragraphs (1) and (3) of section 106 or commits another person to grant
a license in that musical work under paragraphs (1) and (3) of section
106, to a person desiring to fix in a tangible medium of expression a
sound recording embodying the musical work.
(ii) The second sentence of clause (i) shall not apply to-
(I) a contract entered into on or before June 22, 1995 and not modified
thereafter for the purpose of reducing the royalty rates determined
pursuant to subparagraph (C), (D) or (F) or of increasing the number of
musical works within the scope of the contract covered by the reduced
rates, except if a contract entered into on or before June 22, 1995, is
modified thereafter for the purpose of increasing the number of musical
works within the scope of the contract, any contrary royalty rates
specified in the contract shall be given effect in lieu of royalty rates
determined pursuant to subparagraph (C), (D) or (F) for the number of
musical works within the scope of the contract as of June 22, 1995; and
(II) a contract entered into after the date that the sound recording is
fixed in a tangible medium of expression substantially in a form
intended for commercial release, if at the time the contract is entered
into, the recording artist retains the right to grant licenses as to the
musical work under paragraphs (1) and (3) of section 106.
(F) The procedures specified in subparagraphs (C) and (D) shall be
repeated and concluded, in accordance with regulations that the
Librarian of Congress shall prescribe, in each fifth calendar year after
1997, except to the extent that different years for the repeating and
concluding of such proceedings may be determined in accordance with
subparagraphs (B) and (C).
(G) Except as provided in section 1002(e) of this title, a digital
phonorecord delivery licensed under this paragraph shall be accompanied
by the information encoded in the sound recording, if any, by or under
the authority of the copyright owner of that sound recording, that
identifies the title of the sound recording, the featured recording
artist who performs on the sound recording, and related information,
including information concerning the underlying musical work and its
writer.
(H)(i) A digital phonorecord delivery of a sound recording is actionable
as an act of infringement under section 501, and is fully subject to the
remedies provided by sections 502 through 506 and section 509, unless-
(I) the digital phonorecord delivery has been authorized by the
copyright owner of the sound recording; and
(II) the owner of the copyright in the sound recording or the entity
making the digital phonorecord delivery has obtained a compulsory
license under this section or has otherwise been authorized by the
copyright owner of the musical work to distribute or authorize the
distribution, by means of a digital phonorecord delivery, of each
musical work embodied in the sound recording.
(ii) Any cause of action under this subparagraph shall be in addition to
those available to the owner of the copyright in the nondramatic musical
work under subsection (c)(6) and section 106(4) and the owner of the
copyright in the sound recording under section 106(6).
(I) The liability of the copyright owner of a sound recording for
infringement of the copyright in a nondramatic musical work embodied in
the sound recording shall be determined in accordance with applicable
law, except that the owner of a copyright in a sound recording shall not
be liable for a digital phonorecord delivery by a third party if the
owner of the copyright in the sound recording does not license the
distribution of a phonorecord of the nondramatic musical work.
(J) Nothing in section 1008 shall be construed to prevent the exercise
of the rights and remedies allowed by this paragraph, paragraph (6), and
chapter 5 in the event of a digital phonorecord delivery, except that no
action alleging infringement of copyright may be brought under this
title against a manufacturer, importer or distributor of a digital audio
recording device, a digital audio recording medium, an analog recording
device, or an analog recording medium, or against a consumer, based on
the actions described in such section.
(K) Nothing in this section annuls or limits
(i) the exclusive right to publicly perform a sound recording or the
musical work embodied therein, including by means of a digital
transmission, under sections 106(4) and 106(6),
(ii) except for compulsory licensing under the conditions specified by
this section, the exclusive rights to reproduce and distribute the sound
recording and the musical work embodied therein under sections 106(1)
and 106(3), including by means of a digital phonorecord delivery, or
(iii) any other rights under any other provision of section 106, or
remedies available under this title, as such rights or remedies exist
either before or after the date of enactment of the Digital Performance
Right in Sound Recordings Act of 1995.
(L) The provisions of this section concerning digital phonorecord
deliveries shall not apply to any exempt transmissions or
retransmissions under section 114(d)(1). The exemptions created in
section 114(d)(1) do not expand or reduce the rights of copyright owners
under section 106(1) through (5) with respect to such transmissions and
retransmissions.
(4) A compulsory license under this section includes the right of the
maker of a phonorecord of a nondramatic musical work under subsection
(a)(1) to distribute or authorize distribution of such phonorecord by
rental, lease, or lending (or by acts or practices in the nature of
rental, lease, or lending). In addition to any royalty payable under
clause (2) and chapter 8 of this title, a royalty shall be payable by
the compulsory licensee for every act of distribution of a phonorecord
by or in the nature of rental, lease, or lending, by or under the
authority of the compulsory licensee. With respect to each nondramatic
musical work embodied in the phonorecord, the royalty shall be a
proportion of the revenue received by the compulsory licensee from every
such act of distribution of the phonorecord under this clause equal to
the proportion of the revenue received by the compulsory licensee from
distribution of the phonorecord under clause (2) that is payable by a
compulsory licensee under that clause and under chapter 8. The Register
of Copyrights shall issue regulations to carry out the purpose of this
clause.
(5) Royalty payments shall be made on or before the twentieth day of
each month and shall include all royalties for the month next preceding.
Each monthly payment shall be made under oath and shall comply with
requirements that the Register of Copyrights shall prescribe by
regulation. The Register shall also prescribe regulations under which
detailed cumulative annual statements of account, certified by a
certified public accountant, shall be filed for every compulsory license
under this section. The regulations covering both the monthly and the
annual statements of account shall prescribe the form, content, and
manner of certification with respect to the number of records made and
the number of records distributed.
(6) If the copyright owner does not receive the monthly payment and the
monthly and annual statements of account when due, the owner may give
written notice to the licensee that, unless the default is remedied
within thirty days from the date of the notice, the compulsory license
will be automatically terminated. Such termination renders either the
making or the distribution, or both, of all phonorecords for which the
royalty has not been paid, actionable as acts of infringement under
section 501 and fully subject to the remedies provided by sections 502
through 506 and 509.
(d) Definition. As used in this section, the following term has the
following meaning: A "digital phonorecord delivery" is each individual
delivery of a phonorecord by digital transmission of a sound recording
which results in a specifically identifiable reproduction by or for any
transmission recipient of a phonorecord of that sound recording,
regardless of whether the digital transmission is also a public
performance of the sound recording or any nondramatic musical work
embodied therein. A digital phonorecord delivery does not result from a
real-time, non-interactive subscription transmission of a sound
recording where no reproduction of the sound recording or the musical
work embodied therein is made from the inception of the transmission
through to its receipt by the transmission recipient in order to make
the sound recording audible.
Section 116. Negotiated licenses for public performances by means of coin-
operated phonorecord players [52]
(a) Applicability of Section. This section applies to any nondramatic
musical work embodied in a phonorecord.
(b) Negotiated Licenses.-
(1) Authority for negotiations. Any owners of copyright in works to
which this section applies and any operators of coin-operated
phonorecord players may negotiate and agree upon the terms and rates of
royalty payments for the performance of such works and the proportionate
division of fees paid among copyright owners, and may designate common
agents to negotiate, agree to, pay, or receive such royalty payments.
(2) Arbitration. Parties not subject to such a negotiation, may
determine, by arbitration in accordance with the provisions of chapter
8, the terms and rates and the division of fees described in paragraph
(1).
(c) License Agreements Superior to Copyright Arbitration Royalty Panel
Determinations. License agreements between one or more copyright owners
and one or more operators of coin-operated phonorecord players, which
are negotiated in accordance with subsection (b), shall be given effect
in lieu of any otherwise applicable determination by a copyright
arbitration royalty panel.
(d) Definitions. As used in this section, the following terms mean the
following:
(1) A "coin-operated phonorecord player" is a machine or device that-
(A) is employed solely for the performance of nondramatic musical works
by means of phonorecords upon being activated by the insertion of coins,
currency, tokens, or other monetary units or their equivalent;
(B) is located in an establishment making no direct or indirect charge
for admission;
(C) is accompanied by a list which is comprised of the titles of all the
musical works available for performance on it, and is affixed to the
phonorecord player or posted in the establishment in a prominent
position where it can be readily examined by the public; and
(D) affords a choice of works available for performance and permits the
choice to be made by the patrons of the establishment in which it is
located.
(2) An "operator" is any person who, alone or jointly with others-
(A) owns a coin-operated phonorecord player;
(B) has the power to make a coin-operated phonorecord player available
for placement in an establishment for purposes of public performance; or
(C) has the power to exercise primary control over the selection of the
musical works made available for public performance on a coin-operated
phonorecord player.
Section 117. Limitations on exclusive rights: Computer programs [53]
(a) Making of Additional Copy or Adaptation by Owner of Copy.
Notwithstanding the provisions of section 106, it is not an infringement
for the owner of a copy of a computer program to make or authorize the
making of another copy or adaptation of that computer program provided:
(1) that such a new copy or adaptation is created as an essential step
in the utilization of the computer program in conjunction with a machine
and that it is used in no other manner, or
(2) that such new copy or adaptation is for archival purposes only and
that all archival copies are destroyed in the event that continued
possession of the computer program should cease to be rightful.
(b) Lease, Sale, or Other Transfer of Additional Copy or Adaptation. Any
exact copies prepared in accordance with the provisions of this section
may be leased, sold, or otherwise transferred, along with the copy from
which such copies were prepared, only as part of the lease, sale, or
other transfer of all rights in the program. Adaptations so prepared may
be transferred only with the authorization of the copyright owner.
(c) Machine Maintenance or Repair. Notwithstanding the provisions of
section 106, it is not an infringement for the owner or lessee of a
machine to make or authorize the making of a copy of a computer program
if such copy is made solely by virtue of the activation of a machine
that lawfully contains an authorized copy of the computer program, for
purposes only of maintenance or repair of that machine, if-
(1) such new copy is used in no other manner and is destroyed
immediately after the maintenance or repair is completed; and
(2) with respect to any computer program or part thereof that is not
necessary for that machine to be activated, such program or part thereof
is not accessed or used other than to make such new copy by virtue of
the activation of the machine.
(d) Definitions. For purposes of this section-
(1) the "maintenance" of a machine is the servicing of the machine in
order to make it work in accordance with its original specifications and
any changes to those specifications authorized for that machine; and
(2) the "repair" of a machine is the restoring of the machine to the
state of working in accordance with its original specifications and any
changes to those specifications authorized for that machine.
Section 118. Scope of exclusive rights: Use of certain works in connection
with noncommercial broadcasting [54]
(a) The exclusive rights provided by section 106 shall, with respect to
the works specified by subsection (b) and the activities specified by
subsection (d), be subject to the conditions and limitations prescribed
by this section.
(b) Notwithstanding any provision of the antitrust laws, any owners of
copyright in published nondramatic musical works and published
pictorial, graphic, and sculptural works and any public broadcasting
entities, respectively, may negotiate and agree upon the terms and rates
of royalty payments and the proportionate division of fees paid among
various copyright owners, and may designate common agents to negotiate,
agree to, pay, or receive payments.
(1) Any owner of copyright in a work specified in this subsection or any
public broadcasting entity may submit to the Librarian of Congress
proposed licenses covering such activities with respect to such works.
The Librarian of Congress shall proceed on the basis of the proposals
submitted to it as well as any other relevant information. The Librarian
of Congress shall permit any interested party to submit information
relevant to such proceedings.
(2) License agreements voluntarily negotiated at any time between one or
more copyright owners and one or more public broadcasting entities shall
be given effect in lieu of any determination by the Librarian of
Congress: *Provided*, That copies of such agreements are filed in the
Copyright Office within thirty days of execution in accordance with
regulations that the Register of Copyrights shall prescribe.
(3) In the absence of license agreements negotiated under paragraph (2),
the Librarian of Congress shall, pursuant to chapter 8, convene a
copyright arbitration royalty panel to determine and publish in the
Federal Register a schedule of rates and terms which, subject to
paragraph (2), shall be binding on all owners of copyright in works
specified by this subsection and public broadcasting entities,
regardless of whether such copyright owners have submitted proposals to
the Librarian of Congress. In establishing such rates and terms the
copyright arbitration royalty panel may consider the rates for
comparable circumstances under voluntary license agreements negotiated
as provided in paragraph (2). The Librarian of Congress shall also
establish requirements by which copyright owners may receive reasonable
notice of the use of their works under this section, and under which
records of such use shall be kept by public broadcasting entities.
(c) The initial procedure specified in subsection (b) shall be repeated
and concluded between June 30 and December 31, 1997, and at five-year
intervals thereafter, in accordance with regulations that the Librarian
of Congress shall prescribe.
(d) Subject to the terms of any voluntary license agreements that have
been negotiated as provided by subsection (b) (2), a public broadcasting
entity may, upon compliance with the provisions of this section,
including the rates and terms established by a copyright arbitration
royalty panel under subsection (b) (3), engage in the following
activities with respect to published nondramatic musical works and
published pictorial, graphic, and sculptural works:
(1) performance or display of a work by or in the course of a
transmission made by a noncommercial educational broadcast station
referred to in subsection (g); and
(2) production of a transmission program, reproduction of copies or
phonorecords of such a transmission program, and distribution of such
copies or phonorecords, where such production, reproduction, or
distribution is made by a nonprofit institution or organization solely
for the purpose of transmissions specified in paragraph (1); and
(3) the making of reproductions by a governmental body or a nonprofit
institution of a transmission program simultaneously with its
transmission as specified in paragraph (1), and the performance or
display of the contents of such program under the conditions specified
by paragraph (1) of section 110, but only if the reproductions are used
for performances or displays for a period of no more than seven days
from the date of the transmission specified in paragraph (1), and are
destroyed before or at the end of such period. No person supplying, in
accordance with paragraph (2), a reproduction of a transmission program
to governmental bodies or nonprofit institutions under this paragraph
shall have any liability as a result of failure of such body or
institution to destroy such reproduction: *Provided*, That it shall
have notified such body or institution of the requirement for such
destruction pursuant to this paragraph: *And provided further*, That if
such body or institution itself fails to destroy such reproduction it
shall be deemed to have infringed.
(e) Except as expressly provided in this subsection, this section shall
have no applicability to works other than those specified in subsection
(b). Owners of copyright in nondramatic literary works and public
broadcasting entities may, during the course of voluntary negotiations,
agree among themselves, respectively, as to the terms and rates of
royalty payments without liability under the antitrust laws. Any such
terms and rates of royalty payments shall be effective upon filing in
the Copyright Office, in accordance with regulations that the Register
of Copyrights shall prescribe.
(f) Nothing in this section shall be construed to permit, beyond the
limits of fair use as provided by section 107, the unauthorized
dramatization of a nondramatic musical work, the production of a
transmission program drawn to any substantial extent from a published
compilation of pictorial, graphic, or sculptural works, or the
unauthorized use of any portion of an audiovisual work.
(g) As used in this section, the term "public broadcasting entity" means
a noncommercial educational broadcast station as defined in section 397
of title 47 and any nonprofit institution or organization engaged in the
activities described in paragraph (2) of subsection (d).
Section 119. Limitations on exclusive rights: Secondary transmissions of
superstations and network stations for private home viewing [55]
(a) Secondary Transmissions by Satellite Carriers.-
(1) Superstations and PBS Satellite Feed. Subject to the provisions of
paragraphs (3), (4), and (6) of this subsection and section 114(d),
secondary transmissions of a performance or display of a work embodied
in a primary transmission made by a superstation or by the Public
Broadcasting Service satellite feed shall be subject to statutory
licensing under this section if the secondary transmission is made by a
satellite carrier to the public for private home viewing, with regard to
secondary transmissions the satellite carrier is in compliance with the
rules, regulations, or authorizations of the Federal Communications
Commission governing the carriage of television broadcast station
signals, and the carrier makes a direct or indirect charge for each
retransmission service to each household receiving the secondary
transmission or to a distributor that has contracted with the carrier
for direct or indirect delivery of the secondary transmission to the
public for private home viewing. In the case of the Public Broadcasting
Service satellite feed, the statutory license shall be effective until
January 1, 2002. [56]
(2) Network stations.-
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