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Coalition for Networked Information
Information Policies: A Compilation of Position Statements, Principles,
Statutes, and Other Pertinent Statements
Copyright Act of 1976
Source: Title 17, United States Code, Sections 101-810.
[Sections 106, 107, and 108 of the U.S. Copyright Act are of particular
interest to the projected user community of this information. However,
in order to have the convenience of access to the complete act available
it is provided here in its entirety.]
Section 101. Definitions.
As used in this title, the following terms and their variant forms
mean the following:
An "anonymous work" is a work on the copies or phonorecords of
which no natural person is identified as author.
"Audiovisual works" are works that consist of a series of related
images which are intrinsically intended to be shown by the use of
machines or devices such as projectors, viewers, or electronic
equipment, together with accompanying sounds, if any, regardless of
the nature of the material objects, such as films or tapes, in which
the works are embodied.
The "best edition" of a work is the edition, published in the United
States at any time before the date of deposit, that the Library of
Congress determines to be most suitable for its purposes.
A person's "children" are that person's immediate offspring,
whether legitimate or not, and any children legally adopted by that
person.
A "collective work" is a work, such as a periodical issue,
anthology, or encyclopedia, in which a number of contributions,
constituting separate and independent works in themselves, are
assembled into a collective whole.
A "compilation" is a work formed by the collection and assembling
of preexisting materials or of data that are selected, coordinated, or
arranged in such a way that the resulting work as a whole constitutes
an original work of authorship. The term "compilation" includes
collective works.
A "computer program" is a set of statements or instructions to be
used directly or indirectly in a computer in order to bring about a
certain result.
"Copies" are material objects, other than phonorecords, in which a
work is fixed by any method now known or later developed, and from
which the work can be perceived, reproduced, or otherwise
communicated, either directly or with the aid of a machine or
device. The term "copies" includes the material object, other than a
phonorecord, in which the work is first fixed.
"Copyright owner," with respect to any one of the exclusive rights
comprised in a copyright, refers to the owner of that particular
right.
A work is "created" when it is fixed in a copy or phonorecord for
the first time; where a work is prepared over a period of time, the
portion of it that has been fixed at any particular time constitutes
the work as of that time, and where the work has been prepared in
different versions, each version constitutes a separate work.
A "derivative work" is a work based upon one or more preexisting
works, such as a translation, musical arrangement, dramatization,
fictionalization, motion picture version, sound recording, art
reproduction, abridgment, condensation, or any other form in which a
work may be recast, transformed, or adapted. A work consisting of
editorial revisions, annotations, elaborations, or other modifications
which, as a whole, represent an original work of authorship, is a
"derivative work."
A "device," "machine," or "process" is one now known or later
developed.
To "display" a work means to show a copy of it, either directly or
by means of a film, slide, television image, or any other device or
processor, in the case of a motion picture or other audiovisual work, to
show individual images nonsequentially.
A work is "fixed" in a tangible medium of expression when its
embodiment in a copy or phonorecord, by or under the authority of the
author, is sufficiently permanent or stable to permit it to be
perceived, reproduced, or otherwise communicated for a period of
more than transitory duration. A work consisting of sounds, images, or
both, that are being transmitted, is "fixed for purposes of this title if
a fixation of the work is being made simultaneously with its
transmission.
The terms "including" and "such as" are illustrative and not
limitative.
A "joint work" is a work prepared by two or more authors with the
intention that their contributions be merged into inseparable or
interdependent parts of a unitary whole.
"Literary works" are works, other than audiovisual works,
expressed in words, numbers, or other verbal or numerical symbols or
indicia, regardless of the nature of the material objects, such as
books, periodicals, manuscripts, phonorecords, film, tapes, disks, or
cards, in which they are embodied.
"Motion pictures: are audiovisual works consisting of a series of
related images which, when shown in succession, impart an
impression of motion, together with accompanying sounds, if any.
To "perform" a work means to recite, render, play, dance, or act it,
either directly or by means of any device or process or, in the case of a
motion picture or other audiovisual work, to show its images in any
sequence or to make the sounds accompanying it audible.
"Phonorecords" are material objects in which sounds, other than
those accompanying a motion picture or other audiovisual work, are
fixed by any method now known or later developed, and from which
the sounds can be perceived, reproduced, or otherwise communicated,
either directly or with the aid of a machine or device. The term
"phonorecords" includes the material object in which the sounds are
first fixed.
"Pictorial, graphic, and sculptural works" include two-
dimensional and three-dimensional works of fine, graphic, and
applied art, photographs, prints and art reproductions, maps, globes,
charts, technical drawings, diagrams, and models. Such works shall
include works of artistic craftsmanship insofar as their form but not
their mechanical or utilitarian aspects are concerned; the design of a
useful article, as defined in this section, shall be considered a
pictorial, graphic, or sculptural work only if, and only to the extent
that, such design incorporates pictorial, graphic, or sculptural
features that can be identified separately from, and are capable of
existing independently of, the utilitarian aspects of the article.
A "pseudonymous work" is a work on the copies or phonorecords of
which the author is identified under a fictitious name.
"Publication" is the distribution of copies or phonorecords of a work
to the public by sale or other transfer of ownership, or by rental,
lease, or lending. The offering to distribute copies or phonorecords to
a group of persons for purposes of further distribution, public
performance, or public display, constitutes publication. A public
performance or display of a work does not of itself constitute
publication.
To perform or display a work "publicly" means-
(1) to perform or display it at a place open to the public or
at any place where a substantial number of persons outside of a
normal circle of a family and its social acquaintances is gathered;
or,
(2) to transmit or otherwise communicate a performance or
display of the work to a place specified by clause (1) or to the
public, by means of any device or process, whether the members of
the public capable of receiving the performance or display receive
it in the same place or in separate places and at the same time or
at different times.
"Sound recordings" are works that result from the fixation of a
series of musical, spoken, or other sounds, but not including the sounds
accompanying a motion picture or other audiovisual work, regardless
of the nature of the material objects, such as disks, tapes, or other
phonorecords, in which they are embodied.
"State" includes the District of Columbia and the Commonwealth
of Puerto Rico, and any territories to which this title is made
applicable by an Act of Congress.
A "Transfer of copyright ownership" is an assignment, mortgage,
exclusive license, or any other conveyance, alienation, or
hypothecation of a copyright or of any of the exclusive rights
comprised in a copyright, whether or not it is limited in time or place
of effect, but not including a nonexclusive license.
A "transmission program" is a body of material that, as an
aggregate, has been produced for the sole purpose of transmission to
the public in sequence and as a unit.
To "transmit" a performance or display is to communicate it by any
device or process whereby images or sounds are received beyond the
place from which they are sent.
The "United States," when used in a geographical sense, comprises
the several States, the District of Columbia and the Commonwealth
of Puerto Rico, and the organized territories under the jurisdiction of
the United States Government.
A "useful article" is an article having an intrinsic utilitarian
function that is not merely to portray the appearance of the article or
to convey information. An article that is normally a part of a useful
article is considered a "useful article."
The author's "widow" or "widower" is the author's surviving
spouse under the law of the author's domicile at the time of his or
her death, whether or not the spouse has later remarried.
A "work of the United States Government" is a work prepared by
any officer or employee of the United States Government as part of
that person's official duties.
A "work made for hire" is-
(1) a work prepared by an employee within the scope of his or
her employment; or
(2) a work specially ordered or commissioned for use as a
contribution to a collective work, as a part of a motion picture or
other audiovisual work, as a translation, as a supplementary work,
as a compilation, as an instructional text, as a test, as answer
material for a test, or as an atlas, if the parties expressly agree
in a written instrument signed by them that the work shall be
considered a work made for hire. For the purpose of the foregoing
sentence, a "supplementary work" is a work prepared for
publication as a secondary adjunct to a work by another author for
the purpose of introducing, concluding, illustrating, explaining,
revising, commenting upon, or assisting in the use of the other work,
such as forewords, afterwords, pictorial illustrations, maps,
charts, tables, editorial notes, musical arrangements, answer
material for tests, bibliographies, appendixes, and indexes, and an
"instructional text" is a literary, pictorial, or graphic work
prepared for publication and with the purpose of use in systematic
instructional activities.
Section 102. Subject matter of copyright: In general.
(a) Copyright protection subsists, in accordance with this title, in
original works of authorship fixed in any tangible medium of
expression, now known or later developed, from which they can be
perceived, reproduced, or otherwise communicated, either directly or
with the aid of a machine or device. Works of authorship include the
following categories:
(1) literary works:
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works; and
(7) sound recordings.
(b) In no case does copyright protection for an original work of
authorship extend to any idea, procedure, process, system, method of
operation, concept, principle, or discovery, regardless of the form in
which it is described, explained, illustrated, or embodied in such work.
Section 103. Subject matter of copyright: Compilations and derivative works.
(a) The subject matter of copyright as specified by section 102
includes compilations and derivative works, but protection for a work
employing preexisting material in which copyright subsists does not
extend to any part of the work in which such material has been used
unlawfully.
(b) The copyright in a compilation or derivative work extends only
to the material contributed by the author of such work, as
distinguished from the preexisting material employed in the work, and
does not imply any exclusive right in the preexisting material. The
copyright in such work is independent of, and does not affect or enlarge
the scope, duration, ownership, or subsistence of, any copyright
protection in the preexisting material.
Section 104. Subject matter of copyright: National origin.
(a) Unpublished Works.--The works specified by sections 102 and
103, while unpublished, are subject to protection under this title
without regard to the nationality or domicile of the author.
(b) Published Works.-- The works specified by section 102 and 103,
when published, are subject to protection under this title if-
(1) on the date of first publication, one or more of the authors
is a national or domiciliary of the United States, or is a
national, domiciliary, or sovereign authority of a foreign
nation that is a party to a copyright treaty to which the
United States is also a party, or is a stateless person, wherever
that person may be domiciled; or
(2) the work is first published in the United States or in a
foreign nation that, on the date of first publication, is a party
to the Universal Copyright Convention; or
(3) the work is first published by the United Nations or any
of its specialized agencies, or by the Organization of American
States; or
(4) the work comes within the scope of a Presidential
proclamation. Whenever the President finds that a particular
foreign nation extends, to works by authors who are nationals
or domiciliaries of the United States or to works that are first
published in the United States, copyright protection on
substantially the same basis as that on which the foreign
nation extends protection to works of its own nationals and
domiciliaries and works first published in that nation, the
President may by proclamation extend protection under this
title to works of which one or more of the authors is, on the
date of first publication, a national, domiciliary, or sovereign
authority of that nation, or which was first published in that
nation. The President may revise, suspend, or revoke any such
proclamation or impose any conditions or limitations on
protection under a proclamation.
Section 105. Subject matter of copyright: United States Government works.
Copyright protection under this title is not available for any work of
the United States Government, but the United States Government is not
precluded from receiving and holding copyrights transferred to it by
assignment, bequest, or otherwise.
Section 106. Exclusive rights in copyrighted works.
Subject to sections 107 through 118, the owner of copyright under this
title has the exclusive rights to do and to authorize any of the
following:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to
the public by sale or other transfer of ownership, or by rental, lease,
or lending;
(4) in the case of literary, musical, dramatic, and choreographic
works, pantomimes, and motion pictures and other audiovisual works,
to perform the copyrighted work publicly; and
(5) in the case of literary, musical, dramatic, and choreographic
works, pantomimes, and pictorial, graphic, or sculptural works,
including the individual images of a motion picture or other
audiovisual work, to display the copyrighted publicly.
Section 107. Limitations on exclusive rights: Fair use.
Notwithstanding the provisions of section 106, the fair use of a
copyrighted work, including such use by reproduction in copies or
phonorecords or by any other means specified by that section, for
purposes such as criticism, comment, news reporting, teaching (including
multiple copies for classroom use), scholarship, or research, is not an
infringement of copyright. In determining whether the use made of a
work in any particular case is a fair use the factors to be considered
shall include-
(1) the purpose and character of the use, including whether such
use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation
to the copyrighted word as a whole; and
(4) the effect of the use upon the potential market for or value of
the copyrighted work.
Section 108. Limitations on exclusive rights: Reproduction by libraries and
archives.
(a) Notwithstanding the provisions of section 106, it is not an
infringement of copyright for a library or archives, or any of its employees
acting within the scope of their employment, to reproduce no more than one
copy or phonorecord of a work, or to distribute such copy or phonorecord,
under the conditions specified by this section, if-
(1) the reproduction or distribution is made without any purpose of
direct or indirect commercial advantage;
(2) the collections of the library or archives are
(i) open to the public, or
(ii) available not only to researchers affiliated with the
library or archives or with the institution of which it is a part,
but also to other persons doing research in a specialized field; and
(3) the reproduction or distribution of the work includes a notice of
copyright.
(b) The rights of reproduction and distribution under this section apply
to a copy or phonorecord of any unpublished work duplicated in facsimile form
solely for purposes of preservation and security or for deposit for research
use in another library or archives of the type described by clause (2) of
subsection (a), if the copy or phonorecord reproduced is currently in the
collections of the library or archives.
(c) The right of reproduction under this section applies to a copy or
phonorecord of a published work duplicated in facsimile form solely for the
purpose of replacement of a copy or phonorecord that is damaged, deteriorating,
lost, or stolen, if the library or archives has, after a reasonable effort,
determined that an unused replacement cannot be obtained at a fair price.
(d) The rights of reproduction and distribution under this section apply
to a copy, made from the collection of a library or archives where the user
makes his or her request or from that of another library or archives, of no
more than one article or other contribution to a copyrighted collection or
periodical issue, or to a copy or phonorecord of a small part of any other
copyrighted work if-
(1) the copy or phonorecord becomes the property of the user, and
the library or archives has had no notice that the copy or phonorecord
would be used for any purpose other than private study, scholarship, or
research; and
(2) the library or archives displays prominently, at the place where
orders are accepted, and includes on its order form, a warning of
copyright in accordance with requirements that the Register of Copyrights
shall prescribe by regulation.
(e) The rights of reproduction and distribution under this section apply
to the entire work, or to a substantial part of it, made from the collection
of a library or archives where the user makes his or her request or from that
of another library or archives, if the library or archives has first
determined, on the basis of a reasonable investigation, that a copy or
phonorecord of the copyrighted work cannot be obtained at a pair (sic)
prices, if-
(1) the copy or phonorecord becomes the property of the user, and
the library or archives has had no notice that the copy or phonorecord
would be used for any purpose other than private study, scholarship, or
research; and
(2) the library or archives displays prominently, at the place
where orders are accepted, and includes on its order form, a warning of
copyright in accordance with requirements that the Register of Copyrights
shall prescribe by regulation.
(f) Nothing in this section-
(1) shall be construed to impose liability for copyright infringement
upon a library or archives or its employees for the unsupervised use of
reproducing equipment located on its premises: Provided, That such
equipment displays a notice that the making of a copy may be subject to
the copyright law;
(2) excuses a person who uses such reproducing equipment or who
requests a copy or phonorecord under subsection (d) from liability for
copyright infringement for any such act, or for any later use of such
copy or phonorecord, if it exceeds fair use as provided by section 107;
(3) shall be construed to limit the reproduction and distribution
by lending of a limited number of copies and excerpts by a library or
archives of an audiovisual new program, subject to clauses (1), (2), and
(3) of subsection (a); or
(4) in any way affects the rights of fair use as provided by section
107, or any contractual obligations assumed at any time by the library
or archives when it obtained a copy or phonorecord of a work in its
collections.
(g) The rights of reproduction and distribution under this section extend
to the isolated and unrelated reproduction or distribution of a single copy or
phonorecord of the same material on separate occasions, but do not extend to
cases where the library or archives, or its employee-
(1) is aware or has substantial reason to believe that it is
engaging in the related or concerted reproduction or distribution of
multiple copies or phonorecords of the same material, whether made on
one occasion or over a period of time, and whether intended for
aggregate use by one or more individuals or for separate use by the
individual members of a group; or
(2) engages in the systematic reproduction or distribution of single
or multiple copies or phonorecords of material described in subsection
(d): Provided, That nothing in this cause prevents a library or archives
from participating in interlibrary arrangements that do not have as their
purpose or effect, that the library or archives receiving such copies or
phonorecords for distribution does so in such aggregate quantities as to
substitute for a subscription to or purchase of such work.
(h) The rights of reproduction and distribution under the section do not
apply to a musical work, a pictorial, graphic or sculptural work, or a motion
picture or other audiovisual work other than an audiovisual work dealing with
news, except that no such limitation shall apply with respect to right granted
by subsections (b) and (c), or with respect to pictorial or graphic works
published as illustrations, diagrams, or similar adjuncts to works of which
copies are reproduced or distributed in accordance with subsections (d) and
(e).
(i) Five years from the effective date of this Act, and at five-year
intervals thereafter, the Register of Copyrights, after consulting with
representatives of authors, book and periodical publishers, and other owners
of copyrighted materials, and with representatives of library users and
librarians, shall submit to the Congress a report setting forth the extent
to which this section has achieved the intended statutory balancing of the
rights of creators, and the needs of users. The report should also describe
any problems that may have arisen, and present legislative or other
recommendations, if warranted.
Section 109. Limitations on exclusive rights: Effect of transfer of
particular copy or phonorecord.
(a) Notwithstanding the provisions of section 106(3), the owner of a
particular copy or phonorecord lawfully made under this title, or any
person authorized by such owner, is entitled, without the authority of
the copyright owner, to sell or otherwise dispose of the possession of
that copy or phonorecord.
(b)
(1) Notwithstanding the provisions of subsection (a), unless
authorized by the owners of copyright in the sound recording and in the
musical works embodied therein, the owner of a particular phonorecord
may not, for purposes of direct or indirect commercial advantage,
dispose of, or authorize the disposal of, the possession of that
phonorecord by rental, lease, or lending, or by any other act or practice
in the nature of rental, lease, or lending. Nothing in the preceding
sentence shall apply to the rental, lease, or lending of a phonorecord for
nonprofit purposes by a nonprofit library or nonprofit educational
institution.
(2) Nothing in this subsection shall affect any provision of the
antitrust laws. For purposes of the preceding sentence, "antitrust laws"
has the meaning given that term in the first section of the Clayton Act
and includes section 5 or the Federal Trade Commission Act to the
extent that section relates to unfair methods of competition.
(3) Any person who distributes a phonorecord in violation of clause
(1) is an infringer of copyright under section 501 of this title and is
subject to the remedies set forth in sections 502, 503, 504, 505, and 509.
Such violation shall not be a criminal offense under section 506 or cause
such person to be subject to the criminal penalties set forth in section
2319 of title 18.
(c) Notwithstanding the provisions of section 106(5), the owner of a
particular copy lawfully made under this title, or any person
authorized by such owner, is entitled, without the authority of the
copyright owner, to display that copy publicly, either directly or by
the projection of no more than one image at a time, to viewers present at
the place where the copy is located.
(d) The privileges prescribed by subsections (a) and (b) [so as
amended, should be "(a) and (c)"] do not, unless authorized by the
copyright owner, extend to any person who has acquired possession of
the copy or phonorecord from the copyright owner, by rental, lease,
loan, or otherwise, without acquiring ownership of it.
Section 110. Limitations on exclusive rights: Exemption of certain
performances and displays.
Notwithstanding the provisions of section 106, the following are not
infringements of copyright:
(1) performance or display of a work by instructors or pupils in the
course of face-to-face teaching activities of a nonprofit educational
institution, in a classroom or similar place devoted to instruction,
unless, in the case of a motion picture or other audiovisual work, the
performance, or the display of individual images, is given by means of
a copy that was not lawfully made under this title, and that the person
responsible for the performance knew or had reason to believe was not
lawfully made;
(2) performance of a nondramatic literary or musical work or
display of a work, by or in the course of a transmission, if-
(A) the performance or display is a regular part of the
systematic instructional activities of a governmental body or a
nonprofit educational institution; and
(B) the performance or display is directly related and of
assistance to the teaching content of the transmission; and
(C) the transmission is made primarily for-
(i) reception in classrooms or similar places normally to
instruction, or
(ii) reception by persons to whom the transmission is
because their disabilities or other special circumstances
prevent their attendance in classrooms or similar places
normally devoted to instruction, or
(iii) reception by officers or employees of governmental
bodies as a part of their official duties or employment;
(3) performance of a nondramatic literary or musical work or of a
dramatico-musical work of a religious nature, or display of a work in
the course of services at a place of worship or other religious assembly;
(4) performance of a nondramatic literary or musical work
otherwise than in a transmission to the public, without any purpose of
direct or indirect commercial advantage and without payment of any
fee or other compensation for the performance to any of its performers,
promoters, or organizers, if-
(A) there is no direct or indirect admission charge; or
(B) the proceeds, after deducting the reasonable costs of
producing the performance, are used exclusively for educational,
religious, or charitable purposes and not for private financial gain,
except where the copyright owner has served notice of objection to
the performance under the following conditions;
(i) the notice shall be in writing and signed by the
copyright owner or such owner's duly authorized agent; and
(ii) the notice shall be served on the person responsible
for the performance at least seven days before the date of the
performance, and shall state the reasons for the objection; and
(iii) the notice shall comply, in form, content, and
manner of service, with requirements that the Register of
Copyrights shall prescribe by regulation;
(5) communication of a transmission embodying a performance or
display of a work by the public reception of the transmission on a single
receiving apparatus of a kind commonly used in private homes, unless-
(A) a direct charge is made to see or hear the transmission; or
(B) the transmission thus received is further transmitted to the
public;
(6) performance of a nondramatic musical work by a governmental
body or a nonprofit agricultural or horticultural organization, in the
course of an annual agricultural or horticultural fair or exhibition
conducted by such body or organization; the exemption provided by this
clause shall extend to any liability for copyright infringement that
would otherwise be imposed on such body or organization, under
doctrines of vicarious liability or related infringement, for a
performance by a concessionaire, business establishment, or other person
at such fair or exhibition, but shall not excuse any such person from
liability for the performance;
(7) performance of a nondramatic musical work by a vending
establishment open to the public at large without any direct or indirect
admission charge, where the sole purpose of the performance is to
promote the retail sale of copies or phonorecords of the work, and the
performance is not transmitted beyond the place where the
establishment is located and is within the immediate area where the
sale is occurring;
(8) performance of a nondramatic literary work, by or in the course
of a transmission specifically designed for and primarily directed to
blind or other handicapped persons who are unable to read normal
printed material as a result of their handicap, or deaf or other
handicapped persons who are unable to hear the aural signals
accompanying a transmission of visual signals, if the performance is
made without any purpose of direct or indirect commercial advantages
and its transmission is made through the facilities of:
(i) a governmental body; or
(ii) a noncommercial educational broadcast station (as
defined in section 397 of title 47); or
(iii) a radio subcarrier authorization (as defined in 47
CFR 73.293-73.295 and 73.593-73.595); or
(iv) a cable system (as defined in section 111(f));
(9) performance on a single occasion of a dramatic literary work
published at least ten years before the date of the performance, by or in
the course of a transmission specifically designed for and primarily
directed to blind or other handicapped persons who are unable to read
normal printed material as a result of their handicap, if the
performance is made without any purpose of direct or indirect
commercial advantage and its transmission is made through the
facilities of a radio subcarrier authorization referred to in clause
(8)(iii), Provided, That the provisions of this clause shall not be
applicable to more than one performance of the same work by the same
performers or under the auspices of the same organization.
(10) notwithstanding paragraph 4 above, the following is not an
infringement of copyright: performance of a nondramatic literary or
musical work in the course of a social function which is organized and
promoted by a nonprofit veterans' organization or a nonprofit fraternal
organization to which the general public is not invited, but not
including the invitees of the organizations, if the proceeds from the
performance, after deducting the reasonable costs of producing the
performance, are used exclusively for charitable purposes and not for
financial gain. For purposes of this section the social functions of any
college or university fraternity or sorority shall not be included unless
the social function is held solely to raise funds for a specific
charitable purpose.
Section 111. Limitations on exclusive rights: Secondary transmissions.
(a) Certain Secondary Transmissions Exempted. - The secondary
transmission of a primary transmission embodying a performance or
display of a work is not an infringement of copyright if -
(1) the secondary transmission is not made by a cable system, and
consists entirely of the relaying, by the management of a hotel,
apartment house, or similar establishment, or signals transmitted
by a broadcast station licensed by the Federal Communications
Commission, within the local service area of such station, to the
private lodgings of guests or residents of such establishment, and no
direct charge is made to see or hear the secondary transmission; or
(2) the secondary transmission is made solely for the purpose and
under the conditions specified by clause (2) of section 110; or
(3) the secondary transmission is made by any carrier who has no
direct or indirect control over the content or selection of the primary
transmission or over the particular recipients of the secondary
transmission, and whose activities with respect to the secondary
transmission consist solely of providing wires, cables, or other
communications channels for the use of others: Provided, That the
provisions of this clause extend only to the activities of said carrier
with respect to secondary transmissions and do not exempt from
liability the activities of others with respect to their own primary
or secondary transmissions; or
(4) the secondary transmission is not made by a cable system but
is made by a governmental body, or other nonprofit organization,
without any purpose of direct or indirect commercial advantage, and
without charge to the recipients of the secondary transmission other
than assessments necessary to defray the actual and reasonable costs
of maintaining and operating the secondary transmission service.
(b) Secondary Transmission of Primary Transmission to Controlled
Group. -Notwithstanding the provisions of subsections (a) and (c), the
secondary transmission to the public of a primary transmission
embodying a performance or display of a work is actionable as an act of
infringement under section 501, and is fully subject to the remedies
provided by sections 502 through 506 and 509, if the primary
transmission is not made for reception by the public at large but is
controlled and limited to reception by particular members of the public;
Provided, however, That such secondary transmission is not actionable
as an act of infringement if -
(1) the primary transmission is made by a broadcast station
licensed by the Federal Communication; and
(2) the carriage of the signals comprising the secondary
transmission is required under the rules, regulations, or
authorizations of the Federal Communications Commission; and
(3) the signal of the primary transmitter is not altered or changed
in any way by the secondary transmitter.
(c) Secondary Transmissions by Cable Systems -
(1) Subject to the provisions of clauses (2), (3), and (4) of this
subsection, secondary transmissions to the public by a cable system of
a primary transmission made by a broadcast station licensed by the
Federal Communications Commission or by an appropriate
governmental authority of Canada or Mexico and embodying a
performance or display of a work shall be subject to compulsory
licensing upon compliance with the requirements of subsection (d)
where the carriage of the signals comprising the secondary
transmission is permissible under the rules, regulations, or
authorizations of the Federal Communications Commission.
(2) Notwithstanding the provisions of clause (1) of this subsection,
the willful or repeated secondary transmission to the public by a
cable system of a primary transmission made by a broadcast station
licensed by the Federal Communications Commission or by an
appropriate governmental authority of Canada or Mexico and
embodying a performance or display of a work is actionable as an act
of infringement under section 501, and is fully subject to the remedies
provided by sections 502 through 506 and 509, in the following cases:
(A) where the carriage of the signals comprising the secondary
transmission is not permissible under the rules, regulations, or
authorizations of the Federal Communications Commission; or
(B) where the cable system has not recorded the notice
specified by subsection (d) and deposited the statement of account
and royalty fee required by subsection (d).
(3) Notwithstanding the provisions of clause (1) of this subsection
and subject to the provisions of subsection (e) of this section, the
secondary transmission to the public by a cable system of a primary
transmission made by a broadcast station licensed by the Federal
Communications Commission or by an appropriate governmental
authority of Canada or Mexico and embodying a performance or
display of a work is actionable as an act of infringement under
section 501, and is fully subject to the remedies provided by sections
502 through 506 and sections 509 and 510, if the content of the
particular program in which the performance or display is
embodied, or any commercial advertising or station announcements
transmitted by the primary transmitter during, or immediately
before or after, the transmission of such program, is in any way
willfully altered by the cable system through changes, deletions, or
additions, except for the alteration, deletion, or substitution of
commercial advertising market research: *Provided*, That the
research company has obtained the prior consent of the advertiser
who has purchased the original commercial advertisement, the
television station broadcasting that commercial advertisement, and
the cable system performing the secondary transmissions:
*And provided further*, That such commercial alteration, deletion,
or substitution is not performed for the purpose of deriving income
from the sale of that commercial time.
(4) Notwithstanding the provisions of clause (1) of this subsection,
the secondary transmission to the public by a cable system of a
primary transmission made by a broadcast station licensed by an
appropriate governmental authority of Canada or Mexico and
embodying a performance or display of a work is actionable as an act
of infringement under section 501, and is fully subject to the remedies
provided by sections 502 through 506 and section 509, if (A) with
respect to Canadian signals, the community of the cable system is
located more than 150 miles for the United States-Canadian border
and is also located south of the forty-second parallel of latitude, or
(B) with respect to Mexican signals, the secondary transmission is
made by a cable system which received the primary transmission by
means other than direct interception of a free space radio wave
emitted by such broadcast television station, unless prior to April
15, 1976, such cable system was actually carrying, or was
specifically authorized to carry, the signal of such foreign station on
the system pursuant to the rules, regulations, or authorizations of
the Federal Communications Commission.
(d) Compulsory License for Secondary Transmissions by Cable
Systems-
(1) For any secondary transmission to be subject to compulsory
licensing under subsection (c), the cable system shall, at least one
month before the date of the commencement of operations of the
cable system or within one hundred and eighty days after the
enactment of this Act, whichever is later, and thereafter within
thirty days after each occasion on which the ownership or control or
the signal carriage complement of the cable system changes, record
in the Copyright Office a notice including a statement of identity
and address of the person who owns or operates the secondary
transmission service or has power to exercise primary control over it,
together with the name and location of the primary transmitter or
primary transmitters whose signals are regularly carried by the
cable system, and thereafter, from time to time, such further
information as the Register of Copyrights, after consultation with
the Copyright Royalty Tribunal (if and when the Tribunal has been
constituted), shall prescribe by regulation to carry out the purpose of
this clause.
(2) A cable system whose secondary transmissions have been subject
to compulsory licensing under subsection (c) shall, on a semiannual
basis, deposit with the Register of Copyrights, in accordance with
requirements that the Register shall, after consultation with the
Copyright Royalty Tribunal (if and when the Tribunal has been
constituted), prescribe by regulation-
(A) a statement of account, covering the six months next
preceding, specifying the number of channels on which the cable
system made secondary transmissions to its subscribers, the names
and locations of all primary transmitters whose transmissions to
its subscribers, the names and locations of all primary
transmitters whose transmissions were further transmitted by
the cable system, the total number of subscribers, the gross
amounts paid to the cable system for the basic service of
providing secondary transmissions of primary broadcast
transmitters, and such other data as the Register of Copyrights
may, after consultation with the Copyright Royalty Tribunal (if
and when the Tribunal has been constituted), from time to time
prescribe by regulation. Such statement shall also include a
special statement of account covering any nonnetwork television
programming that was carried by the cable system in whole or in
part beyond the local service area of the primary transmitter,
under rules, regulations, or authorizations of the Federal
Communications Commission permitting the substitution or
addition of signals under certain circumstances, together with
logs showing the times, dates, stations, and programs involved in
such substituted or added carriage; and
(B) except in the case of a cable system whose royalty is
specified in subclause (C) or (D), a total royalty fee for the period
covered by the statement, computed on the basis of specified
percentages of the gross receipts from subscribers to the cable service
during said period for the basic service of providing secondary
transmissions of primary broadcast transmitters, as follows:
(i) 0.675 of 1 per centum of such gross receipts for the
privilege of further transmitting any nonnetwork programing of
a primary transmitter in whole or in part beyond the local
service area of such primary transmitter, such amount to be
applied against the fee, if any, payable pursuant to
paragraphs (ii) through (iv);
(ii) 0.675 of 1 per centum of such gross receipts for the
first distant signal equivalent;
(iii) 0.425 of 1 per centum of such gross receipts for
each of the second, third, and fourth distant signal
equivalents;
(iv) 0.2 of 1 per centum of such gross receipts for the
fifth distant signal equivalent and each additional distant
signal equivalent thereafter; and in computing the amounts
payable under paragraph (ii) through (iv), above, any fraction
of a distant signal equivalent shall be computed at its
fractional value and, in the case of any cable system located
partly within and partly without the local service area of a
primary transmitter, gross receipts shall be limited to those
gross receipts derived from subscribers located without the
local service area of such primary transmitter; and
(C) if the actual gross receipts paid by subscribers to a cable
system for the period covered by the statement for the basic
service of providing secondary transmissions of primary
broadcast transmitters total $80,000 or less, gross receipts of the
cable system for the purpose of this subclause shall be computed
by subtracting from such actual gross receipts the amount by
which $80,000 exceeds such actual gross receipts, except that in
no case shall a cable system's gross receipts be reduced to less
that $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.
(3) 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 Copyright
Royalty Tribunal as provided by this title. The Register shall
submit to the Copyright royalty Tribunal, on a semiannual basis, a
compilation of all statements of account covering the relevant six-
month period provided by clause (2) of this subsection.
(4) The royalty fees thus deposited shall, in accordance with the
procedures provided by clause (5), 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 (2)(A); and
(C) any such owner whose work was included in nonnetwork
programing 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.
(5) 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 compulsory license fees for secondary
transmissions shall file a claim with the Copyright Royalty
Tribunal, in accordance with requirements that the Tribunal
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
compulsory licensing fees among them, may lump their claims
together and file them jointly or as a single claim, or may
designate a common agent to receive payment on their behalf.
(B) After the first day of August of each year, the Copyright
Royalty Tribunal shall determine whether there exists a
controversy concerning the distribution of royalty fees. If the
Tribunal determines that no such controversy exists, it shall,
after deducting its reasonable administrative costs under this
section, distribute such fees to the copyright owners entitled, or
to their designated agents. If the Tribunal finds the existence of
a controversy, it shall, pursuant to chapter 8 of this title, conduct
a proceeding to determine the distribution of royalty fees.
(C) During the pendency of any proceeding under this subsection,
the Copyright Royalty Tribunal 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 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 transmission of such signals or
programs by wires, cables, 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)(2), 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, regulation, and authorizations of
the Federal Communications Commission in effect on April 15, 1976,
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.
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.
"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."
A "distant signal equivalent" is the value assigned to the
secondary transmission of any nonnetwork television programing
carried by a cable system in whole or in part beyond the local
service area of the primary transmitter of such programing. 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 programing 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 non-live 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 programing 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 programing 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 system" 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.
(a) 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 or transfer of the copyright or under the limitations on exclusive
rights in sound recordings specified by section 114(a), to make no more
than one copy or phonorecord of a particular transmission program
embodying the performance or display, if-
(1) 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
(2) 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
(3) 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.
(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 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 or 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) The transmission program embodied in a copy or phonorecord
made under this section is not subject to protection as 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 work.
(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.
Section 114. Scope of exclusive rights in sound recordings.
(a) The exclusive rights of the owner of copyright in a sound recording
are limited to the rights specified by clauses (1), (2), and (3) 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 of copies of motion
pictures and other audiovisual works, 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) On January 3, 1978, the Register of Copyrights, after consulting
with representatives of owners of copyrighted materials,
representatives of the broadcasting, recording, motion picture,
entertainment industries, and arts organizations, representatives of
organized labor and performers of copyrighted materials, shall submit
to the Congress a report setting forth recommendations as to whether
this section should be amended to provide for performers and copyright
owners of copyrighted material any performance rights in such
material. The report should describe the status of such rights in foreign
countries, the views of major interested parties, and specific legislative
or other recommendations, if any.
Section 115. Scope of exclusive rights in nondramatic musical works:
Compulsory license for making and distributing phonorecords.
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 may, by complying with
the provisions of this section, obtain a compulsory license only if
his or her primary purpose in making phonorecords is to distribute
them to the public for private use. A person may 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 Licence -
(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, 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, which amount is larger.
(3) 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.
(4) 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.
(5) 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.
Section 116. Scope of exclusive rights in nondramatic musical works:
Public performances by means of coin-operated phonorecord players.
(a) Limitation on Exclusive Right.- In the case of a nondramatic
musical work embodied in a phonorecord, the exclusive right under
clause (4) of section 106 to perform the work publicly by means of a coin-
operated phonorecord player is limited as follows:
(1) The proprietor of the establishment in which the public
performance takes place is not liable for infringement with respect to
such public performance unless-
(A) such proprietor is the operator of the phonorecord player;
or
(B) such proprietor refuses or fails, within one month after
receipt by registered or certified mail of a request, at a time
during which the certificate required by clause (1)(C) of subsection
(b) is not affixed to the phonorecord player, by the copyright owner,
to make full disclosure, by registered or certified mail, of the
identity of the operator of the operator of the phonorecord player.
(2) The operator of the coin-operated phonorecord player may
obtain a compulsory license to perform the work publicly on that
phonorecord player by filing the application, affixing the
certificate, and paying the royalties provided by subsection (b).
(b) Recordation of Coin-Operated Phonorecord Player, Affixation of
Certificate, and Royalty Payable under Compulsory License.- Any
operator who wishes to obtain a compulsory license for the public
performance of works on a coin-operated phonorecord player shall
fulfill the following requirements:
(A) Before or within one month after such performances are made
available on a particular phonorecord player, and during the month
of January in each succeeding year that such performances are made
available on that particular phonorecord player, the operator shall
file in the Copyright Office, in accordance with requirements that
the Register of Copyrights, after consultation with the Copyright
Royalty Tribunal (if and when the Tribunal has been constituted),
shall prescribe by regulation, an application containing the name and
address of the operator of the phonorecord player and the
manufacturer and serial number or other explicit identification of the
phonorecord player, and deposit with the Register of Copyrights a
royalty fee for the current calendar year of $8 for that particular
phonorecord player. If such performances are made available on a
particular phonorecord player for the first time after July 1 of any
year, the royalty fee to be deposited for the remainder of that year
shall be $4.
(B) Within twenty days of receipt of an application and a royalty
fee pursuant to subclause (A), the Register of Copyrights shall issue
to the applicant a certificate for the phonorecord player.
(C) On or before March 1 of the year in which the certificate
prescribed by subclause (B) of this clause is issued, or within ten days
after the date of issue of the certificate, the operator shall affix to
the particular phonorecord player, in a position where it can be
readily examined by the public, the certificate, issued by the
Register of Copyrights under subclause (B) of the latest application
made by such operator under subclause (A) of this clause with respect
to that phonorecord player.
(2) Failure to file the application, to affix the certificate, or to
pay royalty required by clause (1) of this subsection renders the
public performance actionable as an act of infringement under section
501 and fully subject to the remedies provided by sections 502 through
506 and 509.
(c) Distribution of Royalties -.
(1) 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 Copyright
Royalty Tribunal as provided by this title. The Register shall submit
to the Copyright Royalty Tribunal,on an annual bases, a detailed
statement of account covering all fees received for the relevant period
provided by subsection(b).
(2) During the month of January in each year, every person
claiming to be entitled to compulsory license fees under this section
for performances during the preceding twelve-month period shall
file a claim with the Copyright Royalty Tribunal, in accordance
with requirements that the Tribunal shall prescribe by regulation.
Such claim shall include an agreement to accept as final, except as
provided in section 810 of this title, the determination of the
Copyright Royalty Tribunal in any controversy concerning the
distribution of royalty fees deposited under subclause (A) of
subsection (b)(1) of this section to which the claimant is a party.
Notwithstanding any provisions of the antitrust laws, for purposes of
this subsection any claimants may agree among themselves as to the
proportionate division of compulsory 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.
(3) After the first day of October of each year, the Copyright
Royalty Tribunal shall determine whether there exists a controversy
concerning the distribution of royalty fees deposited under subclause
(A) of subsection (b)(1). If the Tribunal determines that no such
controversy exists, it shall, after deducting its reasonable
administrative costs under this section, distribute such fees to the
copyright owners entitled, or to their designated agents. If it finds
that such a controversy exists, it shall, pursuant to chapter 8 of this
title, conduct a proceeding to determine the distribution of royalty
fees.
(4) The fees to be distributed shall be divided as follows:
(A) to every copyright owner not affiliated with a performing
rights society, the pro rata share of the fees to be distributed to
which such copyright owner proves entitlement.
(B) to the performing rights societies, the remainder of the
fees to be distributed in such pro rata shares as they shall by
agreement stipulate among themselves, or, if they fail to agree, the
pro rate share to which such performing rights societies prove
entitlement.
(C) during the pendency of any proceeding under this section,
the Copyright Royalty Tribunal 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.
(5) The Copyright Royalty Tribunal shall promulgate regulations
under which persons who can reasonably be expected to have claims
may, during the year in which performances take place, without
expense to or harassment of operators or proprietors of establishments
in which phonorecord players are located, have such access to such
establishments and to the phonorecord players located therein and
such opportunity to obtain information with respect thereto as may
be reasonably necessary to determine, by sampling procedures or
otherwise, the proportion of contribution of the musical works of each
such person to the earnings of the phonorecord players for which fees
shall have been deposited. Any person who alleges that he or she
has been denied the access permitted under the regulations prescribed
by the Copyright Royalty Tribunal may bring an action in the United
States District Court for the District of Columbia for the cancellation
of the compulsory license of the phonorecord player to which such
access has been denied, and the court shall have the power to declare
the compulsory license thereof invalid from the date of issue thereof.
(d) Criminal Penalties.-Any person who knowingly makes a false
representation of a material fact in an application filed under clause
(1)(A)of subsection (b), or who knowingly alters a certificate issued
under clause (1)(B) of subsection (b) or knowingly affixes such
certificate to a phonorecord player other than the one it covers, shall
be fined not more than $2,500.
(e) Definitions.-As used in this section, the following terms and their
variant forms mean the following:
(1) A "coin-operated phonorecord player" is a machine or device
that-
(A) is employed solely for the performance of non-dramatic
musical works by means of phonorecords upon being activated by
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 of titles of all the musical works
available for performance on it, which list 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; or
(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.
(3) A "performing rights society" is an association or corporation
that licenses the public performance of nondramatic musical works on
behalf of the copyright owners, such as the American Society of
Composers, Authors and Publishers, Broadcast Music, Inc., and SE-
SAC, Inc.
Section 117. Limitations on exclusive rights: Computer programs.
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. 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.
Section 118. Scope of exclusive rights: Use of certain works in connection
with noncommercial broadcasting.
(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) Not later than thirty days after the Copyright Royalty Tribunal
has been constituted in accordance with section 802, the Chairman of
the Tribunal shall cause notice to be published in the Federal Register
of the initiation of proceedings for the purpose of determining
reasonable terms and rates of royalty payments for the activities
specified by subsection (d) with respect to published nondramatic
musical works and published pictorial, graphic, and sculptural works
during a period beginning as provided in clause (3) of this subsection and
ending on December 31, 1982. Copyright owners and public broadcasting
entities shall negotiate 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, within one hundred and twenty
days after publication of the notice specified in this subsection,
submit to the Copyright Royalty Tribunal proposed licenses covering
such activities with respect to such works. The Copyright Royalty
Tribunal shall proceed on the basis of the proposals submitted to it as
well as any other relevant information. The Copyright Royalty
Tribunal 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
Tribunal: 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) Within six months, but not earlier than one hundred and twenty
days, from the date of publication of the notice specified in this
subsection the Copyright Royalty Tribunal shall make a
determination and publish in the Federal Register a schedule of rates
and terms which, subject to clause (2) of this subsection, shall be
binding on all owners of copyright in works specified by this
subsection and public broadcasting entities, regardless of whether or
not such copyright owners and public broadcasting entities have
submitted proposals to the Tribunal. In establishing such rates and
terms the Copyright Royalty Tribunal may consider the rates for
comparable circumstances under voluntary license agreements
negotiated as provided in clause (2) of this subsection. The
Copyright Royalty Tribunal 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.
(4) With respect to the period beginning on the effective date of
this title and ending on the date of publication of such rates and
terms, this title shall not afford to owners of copyright or public
broadcasting entities any greater or lesser rights with respect to the
activities specified in subsection (d) as applied to works specified in
this subsection than those afforded under the law in effect on
December 31, 1977, as held applicable and construed by a court in an
action brought under this title.
(c) The initial procedure specified in subsection (b) shall be repeated
and concluded between June 30 and December 31, 1982, and at five-year
intervals thereafter, in accordance with regulations that the
Copyright Royalty Tribunal shall prescribe
(d) Subject to the transitional provisions of subsection (b)(4), and 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 the Copyright Royalty Tribunal 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, where such production, reproduction, or distribution is
made by a nonprofit institution or organization solely for the purpose
of transmission specified in clause (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 clause (1), and the performance or
display of the contents of such program under the conditions specified
by clause (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 clause (1), and are destroyed
before or at the end of such period. No person supplying, in
accordance with clause (2), a reproduction of a transmission program
to governmental bodies or nonprofit institutions under this clause
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 clause: 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).
(1) 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.
(2) On January 3, 1980, the Register of Copyrights, after consulting
with authors and other owners of copyright in nondramatic literary
works and their representatives, and with public broadcasting
entities and their representatives, shall submit to the Congress a
report setting forth the extent to which voluntary licensing
arrangements have been reached with respect to the use of
nondramatic literary works by such broadcast stations. The report
should also describe any problems that may have arisen, and present
legislative or other recommendations, if warranted.
(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 clause (2) of subsection (d).
CHAPTER 2--COPYRIGHT OWNERSHIP AND TRANSFER.
Analysis
Sec.
201. Ownership of copyright.
202. Ownership of copyright as distinct from ownership of material object.
203. Termination of transfers and licenses granted by the author.
204. Execution of transfers of copyright ownership.
205. Recordation of transfers and other documents.
Section 201. Ownership of copyright.
(a) Initial ownership. -- Copyright in a work protected under this
title vests initially in the author or authors of the work. The authors
of a joint work are co-owners of copyright in the work.
(b) Works Made for Hire. -- In the case of a work made for hire, the
employer or other person for whom the work was prepared is considered
the author for purposes of this title, and, unless the parties have
expressly agreed otherwise in a written instrument signed by them,
owns all of the rights comprised in the copyright.
(c) Contributions to Collective Works. -- Copyright in each separate
contribution to a collective work is distinct from copyright in the
collective work as a whole, and vests initially in the author of the
contribution. In the absence of an express transfer of the copyright or of
any rights under it, the owner of copyright in the collective work is
presumed to have acquired only the privilege of reproducing and
distributing the contribution as part of that particular collective work,
any revision of that collective work, and any later collective work in
the same series.
(d) Transfer of Ownership. --
(1) The ownership of a copyright may be transferred in whole or in
part by any means of conveyance or by operation of law, and may be
bequeathed by will or pass as personal property by the applicable
laws of intestate succession.
(2) Any of the exclusive rights comprised in a copyright, including
any subdivision of any of the rights specified by section 106, may be
transferred as provided by clause (1) and owned separately. The
owner of any particular exclusive right is entitled, to the extent of
that right, to all of the protection and remedies accorded to the
copyright owner by this title.
(e) Involuntary Transfer. -- When an individual author's ownership
of a copyright, or of any of the exclusive rights under a copyright, has
not previously been transferred voluntarily by that individual author,
no action by any governmental body or other official or organization
purporting to seize, expropriate, transfer, or exercise rights of
ownership with respect to the copyright, or any of the exclusive rights
under a copyright, shall be give effect under this title except as
provided under Title 11.
Section 202. Ownership of copyright as distinct from ownership of
material object.
Ownership of a copyright, or of any of the exclusive rights under a
copyright, is distinct from ownership of any material object in which
the work is embodied. Transfer of ownership of any material object,
including the copy or phonorecord in which the work is first fixed, does
not of itself convey any rights in the copyrighted work embodied in the
object; nor, in the absence of an agreement, does transfer of ownership of
a copyright or of any exclusive rights under a copyright convey
property rights in any material object.
Section 203. Termination of transfers and licenses granted by the
author.
(a) Conditions for Termination. -- In the case of any work other than
a work made for hire, the exclusive or nonexclusive grant of a transfer or
license of copyright or of any right under a copyright, executed by the
author on or after January 1, 1978, otherwise than be will, is subject to
termination under the following conditions:
(1) In the case of a grant executed by one author, termination of the
grant may be effected by that author or if the author is dead, by the
person or persons who, under clause (2) of this subsection, own and are
entitled to exercise a total of more than one-half of that author's
termination interest. In the case of a grant executed by two or more
authors who executed it; if any of such authors is dead, the
termination interest of any such author may be exercised as a unit by
the person or persons who, under clause (2) of this subsection, own and
are entitled to exercise a total of more than one-half of that author's
interest.
(2) Where an author is dead, his or her termination interest is
owned, and may be exercised, by his widow or her widower and his or
her children or grandchildren as follows:
(A) the widow or widower owns the author's entire termination
interest unless there are any surviving children or grandchildren of
the author, in which case the widow or widower owns one-half of
the author's interest;
(B) the author's surviving children, and the surviving children
of any dead child of the author, own the author's entire
termination interest unless there is a widow or widower, in which
case the ownership of one-half of the author's interest is divided
among them;
(C) the rights of the author's children and grandchildren are in
all cases divided among them and exercised on a per stirpes basis
according to the number of such author's children represented; the
share of the children of a dead child in a termination interest can
be exercised only by the action of a majority of them.
(3) Termination of the grant may be effected at any time during a
period of five years beginning at the end of thirty-five years from
the date of publication of the work under the grant or at the end of
forty years from the date of execution of the grant, whichever term
ends earlier.
(4) The termination shall be effected by serving an advance notice
in writing, signed by the number and proportion of owners of
termination interests required under clauses (1) and (2) of this
subsection, or by their duly authorized agents, upon the grantee or the
grantee's successor in title.
(A) The notice shall state the effective date of the
termination, which shall fall within the five-year period specified
by clause (3) of this subsection, and the notice shall be served not
less than two or more than ten years before that date. A copy of
the notice shall be recorded in the Copyright Office before the
effective date of termination, as a condition to its taking effect.
(B) The notice shall comply, in form, content, and manner of
service, with requirements that the Register of Copyrights shall
prescribe by regulation.
(5) Termination of the grant may be effected notwithstanding any
agreement to the contrary, including an agreement to make a will or
to make any future grant.
(b) Effect of Termination. -- Upon the effective date of termination,
all rights under this title that were covered by the terminated grants
revert to the author, authors, or other persons owning termination
interests under clauses (1) and (2) of subsection (a), including those
owners who did not join in signing the notice of termination under clause
(4) of subsection (a), but with the following limitations:
(1) A derivative work prepared under authority of the grant
become its termination may continue to be utilized under the terms of
the grant after its termination, but this privilege does not extend to
the preparation after the termination of other derivative works
based upon the copyrighted work covered by the terminated grant.
(2) The future rights that will revert upon termination of the grant
before vested on the date the notice of termination has been served as
provided by clause (4) of subsection (a). The rights vest in the
author, authors, and other persons named in, and in the proportionate
shares provided by, clauses (1) and (2) of subsection (a).
(3) Subject to the provisions of clause (4) of this subsection, a
further grant, or agreement to make a further grant, of any right
covered by a terminated grant is valid only if it is signed by the same
number and proportion of the owners, in whom the right has vested
under clause (2) of this subsection, as are required to terminate the
grant under clauses (1) and (2) of subsection (a). Such further grant or
agreement is effective with respect to all of the persons in whom the
right it covers has vested under clause (2) of this subsection, including
those who did not join in signing it. If any person dies after rights
under a terminated grant have vested in him or her, that person's
legal representatives, legatees, or heirs at law represent him or her
for purposes of this clause.
(4) A further grant, or agreement to make a further grant, of any
right covered by a terminated grant is valid only if it is made after
the effective date of the termination. As an exception, however, an
agreement for such a further grant may be made between the persons
provided by clause (3) of this subsection and the original grantee or
such grantee's successor in title, after the notice of termination has
been served as provided by clause (4) of subsection (a).
(5) Termination of a grant under this section affects only those
rights covered by the grants that arise under this title. and in no way
affects rights arising under any other Federal, State, or foreign laws.
(6) Unless and until termination is effected under this section, the
grant, if it does not provide otherwise, continues in effect for the term
of copyright provided by this title.
Section 204. Execution of transfers of copyright ownership.
(a) A transfer of copyright ownership, other than by operation of
law, is not valid unless an instrument of conveyance, or a note or
memorandum of the transfer, is in writing and signed by the owner of
the rights conveyed or such owner's duly authorized agent.
(b) A certificate of acknowledgement is not required for the validity
of a transfer, but is prima facie evidence of the execution of the transfer
if-
(1) in the case of a transfer executed in the United States, the
certificate is issued by a person authorized to administer oaths
within the United States; or
(2) in the case of a transfer executed in a foreign country, the
certificate is issued by a diplomatic or consular officer of the United
States, or by a person authorized to administer oaths whose
authority is proved by a certificate of such an officer.
Section 205. Recordation of transfers and other documents.
(a) Conditions for Recordation. -- Any transfer of copyright
ownership or other document pertaining to a copyright may be recorded
in the Copyright Office if the document filed for recordation bears the
actual signature of the person who executed it, or if it is accompanied by
a sworn or official certification that it is a true copy of the original,
signed document.
(b) Certificate of Recordation. -- The register of Copyrights shall,
upon receipt of a document as provided by subsection (a) and of the fee
provided by section 708, record the document and return it with a
certificate of recordation.
(c) Recordation as Constructive Notice. -- Recordation of a document
in the Copyright Office gives all persons constructive notice of the facts
stated in the recorded document, but only if-
(1) the document, or material attached to it, specifically identifies
the work to which it pertains so that, after the document is indexed
by the Register of Copyrights, it would be revealed by a reasonable
search under the title or registration number of the work; and
(2) registration has been made for the work.
(d) Recordation as Prerequisite to Infringement Suit. -- No person
claiming by virtue of a transfer to be the owner of copyright or of any
exclusive right under a copyright is entitled to institute an infringement
action under this title until the instrument of transfer under which such
person claims has been recorded in the Copyright Office, but suit may
be instituted after such recordation on a cause of action that arose before
recordation.
(e) Priority Between Conflicting Transfers. -- As between two
conflicting transfers, the one executed first prevails if it is recorded, in
the manner required to give constructive notice under subsection (c),
within one month after its execution in the United States, or at any
time before recordation in such manner of the later transfer. Otherwise
the later transfer prevails if recorded first in such manner, and if taken
in good faith, for valuable consideration or on the basis of a binding
promise to pay royalties, and without notice of the earlier transfer.
(f) Priority Between Conflicting Transfer of Ownership and
Nonexclusive License. -- A nonexclusive license, whether recorded or
not, prevails over a conflicting transfer of copyright ownership if the
license is evidenced by a written instrument signed by the owner of the
rights licensed or such owner's duly authorized agent, and if -
(1) the license was taken before execution of the transfer; or
(2) the license was taken in good faith before recordation of the
transfer and without notice of it.
CHAPTER 3 - DURATION OF COPYRIGHT. Analysis.
Sec.
301. Preemption with respect to other laws.
302. Duration of copyright: Works created on or after January 1, 1978.
303. Duration of copyright: Works created but not published or
copyrighted before January 1, 1978.
304. Duration of copyright: Subsisting copyrights.
305. Duration of copyright: Terminal date.
Section 301. Preemption with respect to other laws.
(a) On and after January 1, 1978, all legal or equitable rights that are
equivalent to any of the exclusive rights within the general scope of
copyright as specified by section 106 in works of authorship that are
fixed in a tangible medium of expression and come within the subject
matter of copyright as specified by sections 102 and 103, whether
created before or after that date and whether published or
unpublished, are governed exclusively by this title. Thereafter, no
person is entitled to any such right or equivalent right in any such work
under the common law or statutes of any State.
(b) Nothing in this title annuls or limits any rights or remedies under
the common law or statutes or any state with respect to-
(1) subject matter that does not come within the subject matter of
copyright as specified by sections 102 and 103, including works of
authorship not fixed in any tangible medium of expression; or
(2) any cause of action arising from undertakings commenced before
January 1, 1978; or
(3) activities violating legal or equitable rights that are not
equivalent to any of the exclusive rights within the general scope of
copyright as specified by section 106.
(c) With respect to sound recordings fixed before February 15, 1972,
any rights or remedies under the common law or statutes of any State
shall not be annulled or limited by this title until February 15, 2047.
The preemptive provisions of subsection (a) shall apply to any such
rights and remedies pertaining to any cause of action arising from
undertakings commenced on and after February 15, 2047.
Notwithstanding the provisions of section 303, no sound recording fixed
before February 15, 1972, shall be subject to copyright under this title
before, on, or after February 15, 2047.
(d) Nothing in this title annuls or limits any rights or remedies under
any other Federal statute.
Section 302. Duration of copyright: Works created on or after January 1,
1978.
(a) In General. -- Copyright in a work created on or after January 1,
1978, subsists from its creation and, except as provided by the following
subsections, endures for a term consisting of the life of the author and
fifty years after the author's death.
(b) Joint Works. -- In the case of a joint work prepared by two or more
authors who did not work for hire, the copyright endures for a term
consisting of the life of the last surviving author and fifty years after
such last surviving author's death.
(c) Anonymous Works, Pseudonymous Works, and Works Made for
Hire. -- In the case of an anonymous work, a pseudonymous work, or a
work made for hire, the copyright endures for a term of seventy-five
years for the year of its first publication, or a term of one hundred years
from the year of its creation, whichever expires first. If, before the end
of such term, the identity of one or more of the authors of an anonymous
or pseudonymous work is revealed in the records of a registration made
for that work under subsections (a) or (d) of section 408, or in the records
provided by this subsection, the copyright in the work endures for the
term specified by subsection (a) or (b), based on the life of the author or
authors whose identity has been revealed. Any person having an
interest in the copyright in an anonymous or pseudonymous work may at
any time record, in records to be maintained by the Copyright Office for
that purpose, a statement identifying one or more authors of the work;
the statement shall also identify the person filing it, the nature of that
person's interest, the source of the information recorded, and the
particular work affected, and shall comply in form and content with
requirements that the Register of Copyrights shall prescribe by
regulation.
(d) Records Relating to Death of Authors. -- Any person having an
interest in a copyright may at any time record in the Copyright Office
a statement of the date of death of the author of the copyrighted work,
or a statement that the author is still living on a particular date. The
statement shall identify the person filing it, the nature of that person's
interest, and the source of the information recorded, and shall comply
in form and content with requirements that the Register of Copyrights
shall prescribe by regulation. The Register shall maintain current
records of information relating to the death of authors of copyrighted
works, based on such recorded statements and, to the extent the Register
considers practicable, on data contained in any of the records of the
Copyright Office or in other reference sources.
(e) Presumption as to Author's Death. -- After a period of seventy-
five years from the year of first publication of a work, or a period of one
hundred years from the year of its creation, whichever expires first,
any person who obtains from the Copyright Office a certified report
that the records provided by subsection (d) disclose nothing to indicate
that the author of the work is living, or died less than fifty years
before, is entitled to the benefit of a presumption that the author has
been dead for at least fifty years. Reliance in food faith upon this
presumption shall be a complete defense to any action for infringement
under this title.
Section 303. Duration of copyright: Works created but not published or
copyrighted before January 1, 1978.
Copyright in a work created before January 1, 1978, but not
theretofore in the public domain or copyrighted, subsists from January
1, 1978, and endures for the term provided by section 302. In no case,
however, shall the term of copyright in such a work expire before
December 31, 2002; and, if the work is published on or before December
31, 2002, the term of copyright shall not expire before December 31,
2027.
Section 304. Duration of copyright: Subsisting copyrights.
(a) Copyrights in Their First Term on January 1, 1978. -- Any
copyright, the first term of which is subsisting on January 1, 1978, shall
endure for twenty-eight years from the date it was originally secured:
Provided, That in the case of any posthumous work or of any periodical,
cyclopedic, or other composite work upon which the copyright was
originally secured by the proprietor thereof, or of any work
copyrighted by a corporate body (otherwise than as assignee or licensee
of the individual author) or by an employer for whom such work is
made for hire, the proprietor of such copyright shall be entitled to a
renewal and extension of the copyright in such work for the further
term of forty-seven years when application for such renewal and
extension shall have been made to the Copyright Office and duly
registered therein within one year prior to the expiration of the
original term of copyright: And provided further, That in the case of
any other copyrighted work, including a contribution by an individual
author to a periodical or to a cyclopedic or other composite work, the
author of such work, if still living, or the widow, widower, or children
of the author, if the author be not living, or if such author, widow,
widower, or children be not living, then the author's executors, or in the
absence of a will, his or her next of kin shall be entitled to a renewal
and extension of the copyright in such work for a further term of forty-
seven years when application for such renewal and extension shall
have been made to the Copyright Office and duly registered therein
within one year prior to the expiration of the original term of
copyright: And provided further, That in default of the registration of
such application for renewal and extension, the copyright in any work
shall terminate at the expiration of twenty-eight years from the date
copyright was originally secured.
(b) Copyrights in Their Renewal Term or Registered for Renewal
Before January 1, 1978. -- The duration of any copyright, the renewal
term of which is subsisting at any time between December 31, 1976, and
December 31, 1977, inclusive, or for which renewal registration is made
between December 31, 1976, and December 31, 1977, inclusive, is
extended to endure for a term of seventy-five years from the date
copyright was originally secured.
(c) Termination of Transfers and Licenses Covering Extended Renewal
Term. -- In the case of any copyright subsisting in either its first or
renewal term on January 1, 1978, other than a copyright in a work made
for hire, the exclusive or nonexclusive grant of a transfer or license of
the renewal copyright or any right under it, executed before January 1,
1978, by any of the persons designated by the second proviso of
subsection (a) of this section, otherwise than by will, is subject to
termination under the following conditions:
(1) In the case of a grant executed by a person or persons other than
the author, termination of the grant may be effected by the
surviving person or persons who executed it. In the case of a grant
executed by one or more of the authors of the work, termination of
the grant may be effected, to the extent of a particular author's
share in the ownership of the renewal copyright, by the author who
executed it, or, if such author is dead, the person or persons who,
under clause (2) of this subsection, own and are entitled to exercise a
total of more than one-half of that author's termination interest.
(2) Where an author is dead, his or her termination interest is
owned, and may be exercised, by his widow or her widower and his
or her children or grandchildren as follows:
(A) the widow or widower owns the author's entire termination
interest unless there are any surviving children or grandchildren
of the author, in which case the widow or widower owns one-
half of the author's interest;
(B) the author's surviving children, and the surviving children
of any dead child of the author, own the author's entire
termination interest unless there is a widow or widower, in
which case the ownership of one-half of the author's interest is
divided among them;
(C) the rights of the author's children and grandchildren are in
all cases divided among them and exercised on a per stirpes basis
according to the number of such author's children represented;
the share of the children of a dead child in a termination
interest can be exercised only by the action of a majority of them.
(3) Termination of the grant may be effected at any time during a
period of five years beginning at the end of fifty-six years from the
date copyright was originally secured, or beginning on January 1,
1978, whichever is later.
(4) The termination shall be effected by serving an advance notice
in writing upon the grantee or the grantee's successor in title. In the
case of a grant executed by a person or persons other than the author,
the notice shall be signed by all of those entitled to terminate the
grant under clause (1) of this subsection, or by their duly authorized
agents. In the case of a grant executed by one or more of the authors
of the work, the notice as to any one author's share shall be signed
by that author or his or her duly authorized agent or, if that author
is dead, by the number and proportion of the owners of his or her
termination interest required under clauses (1) and (2) of this
subsection, or by their duly authorized agents.
(A) The notice shall state the effective date of the
termination, which shall fall within the five-year period specified
by clause (3) of this subsection, and the notice shall be served not
less than two or more than ten years before that date. A copy of
the notice shall be recorded in the Copyright Office before the
effective date of termination, as a condition to its taking effect.
(B) The notice shall comply, in form, content, and manner of
service, with requirements that the Register of Copyrights shall
prescribe by regulation.
(5) Termination of the grant may be effected notwithstanding any
agreement to the contrary, including an agreement to make a will or
to make any future grant.
(6) In the case of a grant executed by a person or persons other than
the author, all rights under this title that were covered by the
terminated grant revert, upon the effective date of termination, to
all of those entitled to terminate the grant under clause (1) of this
subsection. In the case of a grant executed by one or more of the
authors of the work, all of a particular author's rights under this
title that were covered by the terminated grant revert, upon the
effective date of termination, to that author or, if that author is
dead, to the persons owning his or her termination interest under
clause (2) of this subsection, including those owners who did not join
in signing the notice of termination under clause (4) of this
subsection. In all cases the reversion of rights is subject to the
following limitations:
(A) A derivative work prepared under authority of the grant
before its termination may continue to be utilized under the terms
of the grant after its termination, but this privilege does not
extend to the preparation after the termination of other
derivative works based upon the copyrighted work covered by
the terminated grant.
(B) The future rights that will revert upon termination of the
grant become vested on the date the notice of termination has
been served as provided by clause (4) of this subsection.
(C) Where the author's rights revert to two or more persons
under clause (2) of this subsection, they shall vest in those
persons in the proportionate shares provided by that clause. In
such a case, and subject to the provisions of subclause (D) of this
clause, a further grant, or agreement to make a further grant, of a
particular author's share with respect to any right covered by a
terminated grant is valid only if it is signed by the same number
and proportion of the owners, in whom the right has vested
under this clause, as are required to terminate the grant under
clause (2) of this subsection. Such further grant or agreement is
effective with respect to all of the persons in whom the right it
covers has vested under this subclause, including those who did
not join in signing it. If any person dies after rights under a
terminated grant have vested in him or her, that person's legal
representatives, legatees, or heirs at law represent him or her
for purposes of this subclause.
(D) A further grant, or agreement to make a further grant, of
any right covered by a terminated grant is valid only if it is made
after the effective date of the termination. As an exception,
however, an agreement for such a further grant may be made
between the author or any of the persons provided by the first
sentence of clause (6) of this subsection, or between the persons
provided by subclause (C) of this clause, and the original grantee
or such grantee's successor in title, after the notice of termination
has been served as provided by clause (4) of this subsection.
(E) Termination of a grant under this subsection affects only
those rights covered by the grant that arise under this title, and
in no way affects rights arising under any other Federal, State, or
foreign laws.
(F) Unless and until termination is effected under this
subsection, the grant, if it does not provide otherwise, continues
in effect for the remainder of the extended renewal term.
Section 305. Duration of copyright: Terminal date.
All terms of copyright provided by sections 302 through 304 run to the
end of the calendar year in which they would otherwise expire.
CHAPTER 4--COPYRIGHT NOTICE, DEPOSIT, AND REGISTRATION. Analysis.
Sec.
401. Notice of copyright: Visually perceptible copies.
402. Notice of copyright: Phonorecords of sound recordings.
403. Notice of copyright: Publications incorporating United States
Government works.
404. Notice of copyright: Contributions to collective works.
405. Notice of copyright: Omission of notice.
406. Notice of copyright: Error in name or date.
407. Deposit of copies or phonorecords for Library of Congress.
408. Copyright registration in general.
409. Application for copyright registration.
410. Registration of claim and issuance of certificate.
411. Registration as prerequisite to infringement suit.
412. Registration as prerequisite to certain remedies for infringement.
Section 401. Notice of copyright: Visually perceptible copies.
(a) General Requirement. -- Whenever a work protected under this
title is published in the United States or elsewhere by authority of the
copyright owner, a notice of copyright as provided by this section shall
be placed on all publicly distributed copies from which the work can be
visually perceived, either directly or with the aid of a machine or
device.
(b) Form of Notice. -- The notice appearing on the copies shall consist
of the following three elements:
(1) the symbol of a small letter "c" inside of a circle, or the word
"Copyright," or the abbreviation "Copr."; and
(2) the year of first publication of the work; in the case of
compilations or derivative work is sufficient. The year date may be
omitted where a pictorial, graphic, or sculptural work, with
accompanying text matter, if any, is reproduced in or on greeting cards
postcards, stationery, jewelry, dolls, toys, or any useful articles; and
(3) the name of the owner of copyright in the work, or an
abbreviation by which the name can be recognized, or a generally
known alternative designation of the owner.
(c) Position of Notice. -- The notice shall be affixed to the copies in
such manner and location as to give reasonable notice of the claim of
copyright.
The Register of Copyrights shall prescribe by regulation, as examples,
specific methods of affixation and positions of the notice on various
types of works that will satisfy this requirement, but these
specifications shall not be considered exhaustive.
Section 402. Notice of copyright: Phonorecords of sound recordings.
(a) General Requirement. -- Whenever a sound recording protected
under this title is published in the United States or elsewhere by
authority of the copyright owner, a notice of copyright as provided by
this section shall be placed on all publicly distributed phonorecords of
the sound recording.
(b) Form of Notice.- The notice appearing on the phonorecords shall
consist of the following three elements:
(1) the symbol of a small letter "p" inside of a circle; and
(2) the year of first publication of the sound recording; and
(3) the name of the owner of copyright in the sound recording, or an
abbreviation by which the name can be recognized, or a generally
known alternative designation of the owner; if the producer of the
sound recording is named on the phonorecord labels or containers, and
if no other name appears in conjunction with the notice, the producer's
name shall be considered a part of the notice.
(c) Position of Notice. -- The notice shall be placed on the surface of
the phonorecord, or on the phonorecord label or container, in such
manner and location as to give reasonable notice of the claim of
copyright.
Section 403. Notice of copyright: Publications incorporating United
States Government works.
Whenever a work is published in copies or phonorecords consisting
preponderantly of one or more works of the United States Government,
the notice of copyright provided by sections 401 or 402 shall also
include a statement identifying, either affirmatively or negatively,
those portions of the copies or phonorecords embodying any work or
works protected under this title.
Section 404. Notice of copyright: Contributions to collective works.
(a) A separate contribution to a collective work may bear its own
notice of copyright, as provided by sections 401 through 403. However,
a single notice applicable to the collective work as a whole is sufficient
to satisfy the requirements of sections 401 through 403 with respect to
the separate contributions it contains (not including advertisements
inserted on behalf of persons other than the owner of copyright in the
collective work), regardless of the ownership of copyright in the
contributions and whether or not they have been previously published.
(b) Where the person named in a single notice applicable to a
collective work as a whole is not the owner of copyright in a separate
contribution that does not bear its own notice, the case is governed by
the provisions of section 406(a).
Section 405. Notice of copyright: Omission of notice.
(a) Effect of Omission on Copyright. -- The omission of the copyright
notice prescribed by sections 401 through 403 from copies or
phonorecords publicly distributed by authority of the copyright owner
does not invalidate the copyright in a work if-
(1) the notice has been omitted from no more than a relatively
small number of copies or phonorecords distributed to the public; to
(2) registration for the work has been made before or is made
within five years after the publication without notice, and a
reasonable effort is made to add notice to all copies or phonorecords
that are distributed to the public in the United States after the
omission has been discovered; or
(3) the notice has been omitted in violation of an express
requirement in writing that, as a condition of the copyright owner's
authorization of the public distribution of copies or phonorecords,
they bear the prescribed notice.
(b) Effect of Omission on Innocent Infringers. -- Any person who
innocently infringes a copyright, in reliance upon an authorized copy or
phonorecord from which the copyright notice has been omitted, incurs
no liability for actual or statutory damages under section 504 for any
infringing acts committed before receiving actual notice that
registration for the work has been made under section 408, if such person
proves that he or she was misled by the omission of notice. In a suit for
infringement in such a case the court may allow or disallow recovery of
any of the infringer's profits attributable to the infringement, and may
enjoin the continuation of the infringing undertaking or may require, as
a condition or [sic] permitting the continuation of the infringing
undertaking, that the infringer pay the copyright owner a reasonable
license fee in an amount and on terms fixed by the court.
(c) Removal of Notice. -- Protection under this title is not affected by
the removal, destruction, or obliteration of the notice, without the
authorization of the copyright owner, from any publicly distributed
copies or phonorecords.
Section 406. Notice of copyright: Error in name or date.
(a) Error in Name. -- Where the person named in the copyright notice
on copies or phonorecords publicly distributed by authority of the
copyright owner is not the owner of copyright, the validity and
ownership of the copyright are not affected. In such a case, however,
any person who innocently begins an undertaking that infringes the
copyright has a complete defense to any action for such infringement if
such person proves that he or she was misled by the notice and began
the undertaking in good faith under a purported transfer or license from
the person named therein, unless before the undertaking was begun-
(1) registration for the work had been made in the name of the
owner of copyright; or
(2) a document executed by the person named in the notice and
showing the ownership of the copyright had been recorded. The
person named in the notice is liable to account to the copyright owner
for all receipts from transfers or licenses purportedly made under the
copyright by the person named in the notice.
(b) Error in Date. -- When the year date in the notice on copies or
phonorecords distributed by authority of the copyright owner is earlier
than the year in which publication first occurred, any period computed
from the year of first publication first occurred, the work is considered
to have been published without any notice and is governed by the
provisions of section 405.
(c) Omission of Name or Date. -- Where copies or phonorecords
publicly distributed by authority of the copyright owner contain no
name or no date that could reasonably be considered a part of the notice,
the work is considered to have been published without any notice and is
governed by the provisions of section 405.
Section 407. Deposit of copies or phonorecords for Library of Congress.
(a) Except as provided by subsection (c), and subject to the provisions
of subsection (e), the owner of copyright or of the exclusive right of
publication in a work published with notice of copyright in the United
States shall deposit, within three months after the date of such
publication-
(1) two complete copies of the best edition; or
(2) if the work is a sound recording, two complete phonorecords of
the best edition, together with any printed or other visually
perceptible material published with such phonorecords. Neither
the deposit requirements of this subsection nor the acquisition
provisions of subsection (e) are conditions of copyright protection.
(b) The required copies or phonorecords shall be deposited in the
Copyright Office for the use or disposition of the Library of Congress.
The Register of Copyrights shall, when requested by the depositor and
upon payment of the fee prescribed by section 708, issue a receipt for the
deposit.
(c) The Register of Copyrights may be regulation exempt any
categories of material from the deposit requirements of this section, or
require deposit of only one copy or phonorecord with respect to any
categories. Such regulations shall provide either for complete
exemption from the deposit requirements of this section, or for
alternative forms of deposit aimed at providing a satisfactory
archival record of a work without imposing practical or financial
hardships on the depositor, where the individual author is the owner
of copyright in a pictorial, graphic, or sculptural work and (i) less than
five copies of the work have been published, or (ii) the work has been
published in a limited edition consisting of numbered copies the
monetary value of which would make the mandatory deposit of two
copies of the best edition of the work burdensome, unfair, or
unreasonable.
(d) At any time after publication of a work as provided by subsection
(a), the Register of Copyrights may make written demand for the
required deposit of any of the persons obligated to make the deposit
under subsection (a). Unless deposit is made within three months after
the demand is received, the person or persons on whom the demand was
made are liable-
(1) to a fine of not more than $250 for each work; and
(2) to pay into a specially designated fund in the Library of
Congress the total retail price of the copies or phonorecords
demanded, or, if no retail price has been fixed, the reasonable cost of
the Library of Congress of acquiring them; and
(3) to pay a fine of $2,500, in addition to any fine or liability
imposed under clauses (1) and (2), if such person willfully or
repeatedly fails or refuses to comply with such a demand.
(e) With respect to transmission programs that have been fixed and
transmitted to the public in the United States but have not been
published, the Register of Copyrights shall, after consulting with the
Librarian of Congress and other interested organizations and officials,
establish regulation governing the acquisition, through deposit or
otherwise, of copies or phonorecords of such programs for the collections
of the Library of Congress.
(1) The Librarian of Congress shall be permitted, under the
standards and conditions set forth in such regulations to make a
fixation of a transmission program directly from a transmission to the
public, and to reproduce one copy or phonorecord from such fixation
for archival purposes.
(2) Such regulations shall also provide standards and procedures
by which the Register of Copyrights may make written demand,
upon the owner of the right of transmission in the United States, for
the deposit of a copy or phonorecord of a specific transmission
program. Such deposit may, at the option of the owner of the right of
transmission in the United States, be accomplished by gift, by loan
for purposes of reproduction, or by sale at a price not to exceed the
cost of reproducing and supplying the copy or phonorecord. The
regulations established under this clause shall provide reasonable
periods of not less than three months for compliance with a demand,
and shall allow for extensions of such periods and adjustments in the
scope of the demand or the methods for fulfilling it, as reasonably
warranted by the circumstances. Willful failure or refusal to comply
with the conditions prescribed by such regulations shall subject the
owner to the right of transmission in the United States to liability
for an amount, not to exceed the cost of reproducing and supplying the
copy or phonorecord in question, to be paid into a specially
designated fund in the Library of Congress.
(3) Nothing in this subsection shall be construed to require the
making or retention, for purposes of deposit, of any copy or
phonorecord of an unpublished transmission program, the
transmission of which occurs before the receipt of a specific written
demand as provided by clause (2).
(4) No activity undertaken in compliance with regulations
prescribed under clauses (1) or (2) of this subsection shall result in
liability if intended solely to assist in the acquisition of copies or
phonorecords under this subsection.
Section 408. Copyright registration in general.
(a) Registration Permissive. -- At any time during the subsistence of
copyright in any published or unpublished work, the owner of
copyright or of any exclusive right in the work may obtain registration
of the copyright claim by delivering to the Copyright Office the
deposit specified by this section, together with the application and fee
specified by sections 409 and 708. Subject to the provisions of section
405(a), such registration is not a condition of copyright protection.
(b) Deposit for Copyright Registration. -- Except as provided by
subsection
(c) The material deposited for registration shall include-
(1) in the case of an unpublished work, one complete copy or
phonorecord;
(2) in the case of the published work, two complete copies or
phonorecords of the best edition;
(3) in the case of a work first published outside the United States,
one complete copy or phonorecord as so published;
(4) in the case of a contribution to a collective work, one complete
copy or phonorecord of the best edition of the collective work. Copies
or phonorecords deposited for the Library of Congress under section
407 may be used to satisfy the deposit provisions of this section, if
they are accompanied by the prescribed application and fee, and by
any additional identifying material that the Register may, by
regulation, require. The Register shall also prescribe regulations
establishing requirements under which copies or phonorecords
acquired for the Library of Congress under subsection (e) of section 407,
otherwise than by deposit, may be used to satisfy the deposit
provisions of this section.
(c) Administrative Classification and Optional Deposit.-
(1) The Register of Copyrights is authorized to specify by
regulation the administrative classes into which works are to be
placed for purposes of deposit and registration, and the nature of the
copies or phonorecords to be deposited in the various classes
specified. The regulations may require or permit, for particular
classes, the deposit of identifying material instead of copies or
phonorecords, the deposit of only one copy or phonorecord where two
would normally be required, or a single registration for a group of
related works. This administrative classification of works has no
significance with respect to the subject matter of copyright or the
exclusive rights provided by this title.
(2) Without prejudice to the general authority provided under
clause (1), the Register of Copyrights shall establish regulations
specifically permitting a single registration for a group of works by
the same individual author, all first published as contributions to
periodicals, including newspapers, within a twelve-month period, on
the basis of a single deposit, application, and registration fee, under
all of the following conditions-
(A) if each of the works as first published bore a separate
copyright notice, and the name of the owner of copyright in the
work, or an abbreviation by which the name can be recognized, or a
generally known alternative designation of the owner was the
same in each notice; and
(B) if the deposit consists of one copy of the entire issue of
the periodical, or of the entire section in the case of a newspaper,
in which each contribution was first published; and
(C) if the application identifies each work separately,
including the periodical containing it and its date of first
publication.
(3) As an alternative to separate renewal registrations under
subsection (a) of section 304, a single renewal registration may be
made for a group of works by the same individual author, all first
published as contributions to periodicals, including newspapers, upon
the filing of a single application and fee, under all of the following
conditions:
(A) the renewal claimant or claimants, and the basis of claim or
claims under section 304(a), is the same for each of the works; and
(B) the works were all copyrighted upon their first publication,
either through separate copyright notice and registration or by
virtue of a general copyright notice in the periodical issue as a
whole; and
(C) the renewal application and fee are received not more than
twenty-eight or less than twenty-seven years after the thirty-first
day of December of the calendar year in which all of the works
were first published; and
(D) the renewal application identifies each work separately,
including the periodical containing it and its date of first
publication
(d) Corrections and Amplifications. -- The register may also
establish, by regulation, formal procedures for the filing of an
application for supplementary registration, to correct an error in a
copyright registration or to amplify the information given in a
registration. Such application shall be accompanied by the fee
provided by section 708, and shall clearly identify the registration to
be corrected or amplified. The information contained in a
supplementary registration augments but does not supersede that
contained in the earlier registration.
(e) Published Edition of Previously Registered Work. -- Registration
for the first published edition of a work previously registered in
unpublished form may be made even though the work as published is
substantially the same as the unpublished version.
Section 409. Application for copyright registration.
The application for copyright registration shall be made on a form
prescribed by the Register of Copyrights and shall include-
(1) the name and address of the copyright claimant;
(2) in the case of a work other than an anonymous or pseudonymous
work, the name and nationality or domicile of the author or authors,
and, if one or more of the authors is dead, the dates of their deaths;
(3) if the work is anonymous or pseudonymous, the nationality or
domicile of the author or authors;
(4) in the case of a work made for hire, a statement to this effect;
(5) if the copyright claimant is not the author, a brief statement of
how the claimant obtained ownership of the copyright;
(6) the title of the work, together with any previous or alternative
titles under which the work can be identified;
(7) the year in which creation of the work was completed;
(8) if the work has been published, the date and nation of its first
publication;
(9) in the case of a compilation or derivative work, an
identification of any preexisting work or works that it is based on or
incorporates, and a brief, general statement of the additional
material covered by the copyright claim being registered;
(10) in the case of a published work containing material of which
copies are required by section 601 to be manufactured in the United
States, the names of the persons or organizations who performed the
processes specified by subsection (c) of section 601 with respect to that
material, and the places where those processes were performed; and
(11) any other information regarded by the Register of Copyrights
as bearing upon the preparation or identification of the work or the
existence, ownership, or duration of the copyright.
Section 410. Registration of claim and issuance of certificate.
(a) When, after examination, the Register of Copyrights determines
that, in accordance with the provisions of this title, the material
deposited constitutes copyrightable subject matter and that the other
legal and formal requirements of this title have been met, the Register
shall register the claim and issue to the applicant a certificate of
registration under the seal of the Copyright Office. The certificate
shall contain the information given in the application, together with
the number and effective date of the registration.
(b) In any case in which the Register of Copyrights determines that,
in accordance with the provisions of this title, the material deposited
does not constitute copyrightable subject matter or that the claim is
invalid for any other reason, the Register shall refuse registration and
shall notify the applicant in writing of the reasons for such refusal.
(c) In any judicial proceedings the certificate of a registration made
before or within five years after first publication of the work shall
constitute prima facie evidence of the validity of the copyright and of
the facts stated in the certificate. The evidentiary weight to be
accorded the certificate of a registration made thereafter shall be
within the discretion of the court.
(d) The effective date of a copyright registration is the day on which
an application, deposit, and fee, which are later determined by the
Register of Copyrights or by a court of competent jurisdiction to be
acceptable for registration, have all been received in the Copyright
Office.
Section 411. Registration as prerequisite to infringement suit.
(a) Subject to the provisions of subsection (b), no action for
infringement of the copyright in any work shall be instituted until
registration of the copyright claim has been made in accordance with
this title. In any case, however, where the deposit, application, and
fee required for registration have been delivered to the Copyright
Office in proper form and registration has been refused, the applicant is
entitled to institute an action for infringement if notice thereof, with a
copy of the complaint, is served on the Register of Copyrights. the
Register may, at his or her option, become a party to the action with
respect to the issue of registrability of the copyright claim by entering
an appearance within sixty days after such service, but the Register's
failure to become a party shall not deprive the court of jurisdiction to
determine that issue.
(b) In the case of a work consisting of sounds, images, or both, the first
fixation of which is made simultaneously with its transmission, the
copyright owner may, either before or after such fixation takes place,
institute an action for infringement under section 501, fully subject to the
remedies provided by sections 502 through 506 and sections 509 and 510,
if, in accordance with requirements that the Register of Copyrights
shall prescribe by regulation, the copyright owner-
(1) serves notice upon the infringer, not less than ten or more than
thirty days before such fixation, identifying the work and the
specific time and source of its first transmission, and declaring an
intention to secure copyright in the work; and,
(2) makes registration for the work within three months after its
first transmission.
Section 412. Registration as prerequisite to certain remedies for
infringement.
In any action under this title, other than an action instituted under
section 411(b), no award of statutory damages or of attorney's fees, as
provided by sections 504 and 505, shall be made for-
(1) any infringement of copyright in an unpublished work
commenced before the effective date of its registration; or
(2) any infringement of copyright commenced after first publication
of the work and before the effective date of its registration, unless
such registration is made within three months after the first
publication of the work.
CHAPTER 5 - COPYRIGHT INFRINGEMENT AND REMEDIES. Analysis.
Sec.
501. Infringement of copyright.
502. Remedies for infringement: Injunctions.
503. Remedies for infringement: Impounding and disposition of
infringing articles.
504. Remedies for infringement: Damages and profits.
505. Remedies for infringement: Costs and attorney's fees.
506. Criminal offenses.
507. Limitations on actions.
508. Notification of filing and determination of actions.
509. Seizure forfeiture.
510. Remedies for alteration of programing by cable systems.
Section 501. Infringement of copyright.
(a) Anyone who violates any of the exclusive rights of the copyright
owner as provided by section 106 through 118, or who imports copies or
phonorecords into the United States in violation of section 602, is an
infringer of the copyright.
(b) The legal or beneficial owner of an exclusive right under a
copyright is entitled, subject to the requirements of sections 205(d) and
411, to institute an action for any infringement of that particular right
committed while he or she is the owner of it. The court may require
such owner to serve written notice of the action with a copy of the
complaint upon any person shown, by the records of the Copyright
Office or otherwise, to have or claim an interest in the copyright, and
shall require that such notice be served upon any person whose interest
is likely to be affected by a decision in the case. The court may require
the joiner, and shall permit the intervention, of any person having or
claiming an interest in the copyright.
(c) For any secondary transmission by a cable system that embodies a
performance or a display of a work which is actionable as an act of
infringement under subsection (c) of section 111, a television broadcast
station holding a copyright or other license to transmit or perform the
same version of that work shall, for purposes of subsection (b) of this
section, be treated as a legal or beneficial owner if such secondary
transmission occurs within the local service area of that television
station.
(d) For any secondary transmission by a cable system that is
actionable as an act of infringement pursuant to section 111(c)(3), the
following shall also have standing to sue: (i) the primary transmitter
whose transmission has been altered by the cable system; and (ii) any
broadcast station within whose local service area the secondary
transmission occurs.
Section 502. Remedies for infringement: Injunctions.
(a) Any court having jurisdiction of a civil action arising under this
title may, subject to the provisions of section 1498 of title 28, grant
temporary and final injunctions on such terms as it may deem reasonable
to prevent or restrain infringement of a copyright.
(b) Any such injunction may be served anywhere in the United States
on the person enjoined; it shall be operative throughout the United
States and shall be enforceable, by proceedings in contempt or
otherwise, by any United States court having jurisdiction of that
person. The clerk of the court granting the injunction shall, when
requested by any other court a certified copy of all the papers in the
case on file in such clerk's office.
Section 503. Remedies for infringement: Impounding and disposition of
infringing articles.
(a) At any time while an action under this title is pending, the court
may order the impounding, on such terms as it may deem reasonable, of
all copies or phonorecords claimed to have been made or used in
violation of the copyright's owner's exclusive rights, and of all plates,
molds, matrices, masters, tapes, film negative, or other articles by
means of which such copies or phonorecords may be reproduced.
(b) As part of a final judgment or decree, the court may order the
destruction or other reasonable disposition of all copies or phonorecords
found to have been made or used in violation of the copyright owner's
exclusive rights, and of all plates, molds, matrices, masters, tapes, film
negatives, or other articles by means of which such copies or
phonorecords may be reproduced.
Section 504. Remedies for infringement: Damages and profits.
(a) In General. -- Except as otherwise provided by this title, an
infringer of copyright is liable for either-
(1) the copyright owner's actual damages and any additional
profits of infringer, as provided by subsection (b); or
(2) statutory damages, as provided by subsection (c).
(b) Actual Damages and Profits. -- The copyright owner is entitled to
recover the actual damages suffered by him or her as a result of the
infringement, and any profits of the infringer that are attributable to
the infringement and are not taken into account in computing the actual
damages. In establishing the infringer's profits, the copyright owner is
required to present proof only of the infringer's gross revenue, and the
infringer is required to prove his or her deductible expenses and the
elements of profit attributable to factors other than the copyrighted
work.
(c) Statutory Damages. --
(1) Except as provided by clause (2) of this subsection, the
copyright owner may elect, at any time before final judgment is
rendered, to recover instead of actual damages and profits, an award
of statutory damages for all infringements involved in the action,
with respect to any one work, for which any one infringer is liable
individually, or for which any two or more infringers are liable
jointly and severally, in a sum of not less than $250 or more than
$10,000 as the court considers just. For the purposes of this
subsection, all the parts of a compilation or derivative work
constitute one work.
(2) In a case where the copyright owner sustains the burden of
proving, and the court finds, that infringement was committed
willfully, the court in its discretion may increase the award of
statutory damages to a sum of not more than $50,000. In a case where
the infringer sustains the burden of proving, and the court finds, that
such infringer was not aware and had no reason to believe that his
or her acts constituted an infringement of copyright, the it [sic] its
discretion may reduce the award of statutory damages to a sum of
not less than $100. The court shall remit statutory damages in any
case where an infringer believed and had reasonable grounds for
believing that his or her use of the copyrighted work was a fair use
under section 107, if the infringer was: (i) an employee or agent of a
nonprofit educational institution, library, or archives acting within
the scope of his or her employment who, or such institution, library,
or archives itself, which infringed by reproducing the work in copies
or phonorecords; or (ii) a public broadcasting entity which or a
person who, as a regular part of the nonprofit activities of a public
broadcasting entity (as defined in subsection (g) of section 118)
infringed by performing a published nondramatic literary work or
by reproducing a transmission program embodying a performance of
such a work.
Section 505. Remedies for infringement: Costs and attorney's fees.
In any civil action under this title, the court in its discretion may
allow the recovery of full costs by or against any party other than the
United States or an officer thereof. Except as otherwise provided by
this title, the court may also award a reasonable attorney's fee to the
prevailing party as part of the costs.
Section 506. Criminal offenses.
(a) Criminal infringement. -- Any person who infringes a copyright
willfully and for purposes of commercial advantage or private
financial gain shall be punished as provided in section 2319 of title 18.
(b) Forfeiture and Destruction. -- When any person is convicted of any
violation of subsection (a), the court in its judgment of conviction shall,
in addition to the penalty therein prescribed, order the forfeiture and
destruction or other disposition of all infringing copies or phonorecords
and all implements, devices, or equipment used in the manufacture of
such infringing copies or phonorecords.
(c) Fraudulent Copyright Notice. -- Any person who, with fraudulent
intent, places on any article a notice of copyright or words of the same
purport that such person knows to be false, or who, with fraudulent
intent, publicly distributes or imports for public distribution any article
bearing such notice or words that such person knows to be false, shall be
fined not more than $2,500.
(d) Fraudulent Removal of Copyright Notice. -- Any person who,
with fraudulent intent, removes or alters any notice of copyright
appearing on a copy of a copyrighted work shall be fined not more than
$2,500.
Section 507. Limitations on actions.
(a) Criminal Proceedings. -- No criminal proceeding shall be
maintained under the provisions of this title unless it is commenced
within three years after the cause of action arose.
(b) Civil Actions. -- No civil action shall be maintained under the
provisions of this title unless it is commenced within three years after
the claim accrued.
Section 508. Notification of filing and determination of action.
(a) Within one month after the filing of any action under this title,
the clerks of the courts of the United States shall send written
notification to the Register of Copyrights setting forth, as far as is
shown by the papers filed in the court, the names and addresses of the
parties and the title, author, and registration number of each work
involved in the action. If any other copyrighted work is later included
in the action by amendment, answer, or other pleading, the clerk shall
also send a notification concerning it to the Register within one month
after the pleading is filed.
(b) Within one month after any final order or judgment is issued in
the case, the clerk of the court shall notify the Register of it, sending
with the notification a copy of the order or judgment together with the
written opinion, if any, of the court.
(c) Upon receiving the notifications specified in this section, the
Register shall make them a part of the public records of the Copyright
Office.
Section 509. Seizure and forfeiture.
(a) All copies or phonorecords manufactured, reproduced, distributed,
sold or otherwise used, intended for use, or possessed with intent to use
in violation of section 506(a), and all plates, molds, matrices, masters,
tapes, film negatives, or other articles by means of which such copies or
phonorecords may be reproduced, and all electronic, mechanical, or
other devises for manufacturing, reproducing, or assembling such copies
or phonorecords may be seized and forfeited to the United States.
(b) The applicable procedures relating to (i) the seizure, summary
and judicial forfeiture, and condemnation of vessels, vehicles,
merchandise, and baggage for violations of the customs laws contained
in title 19, (ii) the disposition of such vessels, vehicles, merchandise,
and baggage or the proceeds from the sale thereof, (iii) the remission or
mitigation of such forfeiture, (iv) the compromise of claims, and (v) the
award of compensation to informers in respect of such forfeitures, shall
apply to seizures and forfeitures incurred, or alleged to have been
incurred, under the provisions of this section, insofar as applicable and
not inconsistent with the provisions of this section; except that such
duties as are imposed upon any officer or employee of the Treasury
Department or any other person with respect to the seizure and
forfeiture of vessels, vehicles, merchandise, and baggage under the
provisions of the customs laws contained in title 19 shall be performed
with respect seizure and forfeiture of all articles described in subsection
(a) by such officers, agents, or other persons as may be authorized or
designated for that purpose by the Attorney General.
Section 510. Remedies for alteration of programing by cable systems.
(a) In any action filed pursuant to section 111(c)(3), the following
remedies shall be available;
(1) Where an action is brought by a party identified in subsections
(b) or (c) of section 501, the remedies provided by sections 502
through 505, and the remedy provided by subsection (b) of this
section; and
(2) When an action is brought by a party identified in subsection
(d) of section 501, the remedies provided by sections 502 and 505,
together with any actual damages suffered by such party as a result
of the infringement, and the remedy provided by subsection (b) of
this section.
(b) In any action filed pursuant to section 111(c)(3), the court may
decree that, for a period not to exceed thirty days, the cable system
shall be deprived of the benefit of a compulsory license for one or more
distant signals carried by such cable system.
CHAPTER 6 - MANUFACTURING REQUIREMENTS AND IMPORTATION. Analysis.
Sec.
601. Manufacture, importation, and public distribution of certain
copies.
602. Infringing importation of copies or phonorecords.
603. Importation prohibitions: Enforcement and disposition of excluded
articles.
Section 601. Manufacture, importation, and public distribution of
certain copies.
(a) Prior to July 1, 1986, and except as provided by subsection (b), the
importation into or public distribution in the United States of copies of
a work consisting preponderantly of nondramatic [sic] literary material
that is in the English language and is protected under this title is
prohibited unless the portions consisting of such material have been
manufactured in the United States or Canada.
(b) The provisions of subsection (a) do not apply-
(1) where on the date when importation is sought or public
distribution in the United States is made, the author of any
substantial part of such material is neither a national nor a
domiciliary of the United States or, if such author is a national of
the United States, he or she has been domiciled outside the United
States for a continuous period of at least one year immediately
preceding that date; in the case of a work made for hire, the
exemption provided by this clause does not apply unless a
substantial part of the work was prepared for an employer or other
person who is not a national or domiciliary of the United States or a
domestic corporation or enterprise;
(2) where the United States Customs Service is presented with an
import statement issued under the seal of the Copyright Office, in
which case a total of no more than two thousand copies of any one
such work shall be allowed entry; the import statement shall be
issued upon request to the copyright owner or to a person designated
by such owner at the time of registration for the work under section
408 or at any time thereafter;
(3) where importation is sought under the authority or for the use,
other than in schools, of the Government of the United States or of
any State or political subdivision of a State;
(4) where importation, for use and not for sale, is sought-
(A) by any person with respect to no more than one copy of any
work at any one time;
(B) by any person arriving from outside the United States, with
respect to copies forming part of such person's personal baggage;
or
(C) by an organization operated for scholarly, educational, or
religious purposes and not for private gain, with respect to copies
intended to form a part of its library;
(5) where the copies are reproduced in raised characters for the use
of the blind; or
(6) where, in addition to copies imported under clauses (3) and (4)
of this subsection, no more than two thousand copies of any one such
work, which have not been manufactured in the United States or
Canada, are publicly distributed in the United States; or
(7) where, on the date when importation is sought or public
distribution in the United States is made-
(A) the author of any substantial part of such material is an
individual and receives compensation for the transfer or license
of the right to distribute the work in the United States; and
(B) the first publication of the work has previously taken place
outside the United States under a transfer or license granted by
such author to a transferee or licensee who was not a national or
domiciliary of the United States or domestic corporation or
enterprise; and
(C) there has been no publication of an authorized edition of the
work of which the copies were manufactured in the United
States; and
(D) the copies were reproduced under a transfer or license
granted by such author or by the transferee or licensee of the
right of first publication as mentioned in subclause (B), and the
transferee or the licensee of the right of reproduction was not a
national or domiciliary of the United States or a domestic
corporation or enterprise.
(c) The requirement of this section that copies be manufactured in the
United States or Canada is satisfied if-
(1) in the case where the copies are printed directly from type that
has been set, or directly from plates made from such type, the
setting of the type and the making of the plates have been
performed in the United States or Canada; and
(2) in the case where the making of plates by a lithographic or
photoengraving process is a final or intermediate step preceding the
printing of the copies, the making of the plates has been performed
in the United States or Canada.
(3) in any case, the printing or other final process of producing
multiple copies and any binding of the copies have been performed
in the United States or Canada.
(d) Importation or public distribution of copies in violation of this
section does not invalidate protection for a work under this title.
However, in any civil action or criminal proceeding for infringement of
the exclusive rights to produce and distribute copies of the work, the
infringer has a complete defense with respect to all of the nondramatic
literary material comprised in the work and any other parts of the
work in which the exclusive rights to reproduce and distribute copies
are owned by the same person who owns such exclusive rights in the
nondramatic literary material, if the infringer proves-
(1) that copies of the work have been imported into or publicly
distributed in the United States in violation of this section by or
with the authority of the owner of such exclusive rights; and
(2) that the infringing copies were manufactured in the United
States or Canada in accordance with the provisions of subsection (c);
and
(3) that the infringement was commenced before the effective date
of registration for an authorized edition of the work, the copies of
which have been manufactured in the United States or Canada in
accordance with the provisions of subsection (c).
(e) In any action for infringement of the exclusive rights to reproduce
and distribute copies of a work containing material required by this
section to be manufactured in the United States or Canada, the
copyright owner shall set forth in the complaint the names of the
persons or organizations who performed the processes specified by
subsection (c) with respect to that material, and the places where those
processes were performed.
Section 602. Infringing importation of copies or phonorecords.
(a) Importation into the United States, without the authority of the
owner of copyright under this title, of copies or phonorecords of a work
that have been acquired outside the United States is an infringement of
the exclusive right to distribute copies of phonorecords under section
406, actionable under section 501. This subsection does not apply to-
(1) importation of copies or phonorecords under the authority or for
the use of the Government of the United States or of any State or
political subdivision of a State, but not including copies or
phonorecords for purposes other than archival use;
(2) importation, for the private use of the importer and not for
distribution, by any person with respect to no more than one copy or
phonorecord of any one work at any one time, or by any person
arriving from outside the United States with respect to copies or
phonorecords forming part of such person's personal baggage; or
(3) importation by or for an organization operated for scholarly,
educational, or religious purposes and not for private gain, with
respect to no more than one copy of an audiovisual work solely for its
archival purposes, and no more than five copies or phonorecords of
any other work for its library lending or archival purposes, unless
the importation of such copies or phonorecords is part of an activity
consisting of systematic reproduction or distribution, engaged in by
such organization in violation of the provisions of section 108(g)(2).
(b) In a case where the making of the copies or phonorecords would
have constituted an infringement of copyright if this title had been
applicable, their importation is prohibited. In a case where the copies
or phonorecords were lawfully made, the United States Customs service
has no authority to prevent their importation unless the provisions of
section 601 are applicable. In either case, the Secretary of the Treasury
is authorized to prescribe, by regulation, a procedure under which any
person claiming an interest in the copyright in a particular work may,
upon payment of a specified fee, be entitled to notification by the
Customs Service of the importation of articles that appear to be copies
of phonorecords of the work.
Section 603. Importation prohibitions: Enforcement and disposition of
excluded articles.
(a) The Secretary of the Treasury and the United States Postal
Service shall separately or jointly make regulations for the
enforcement of the provisions of this title prohibiting importation.
(b) These regulations may require, as a condition for the exclusion of
articles under section 602-
(1) that the person seeking exclusion obtain a court order enjoining
importation of the articles; or
(2) that the person seeking exclusion furnish proof, of a specified
nature and in accordance with prescribed procedures, that the
copyright in which such person claims an interest is valid and that
the importation would violate the prohibition in section 602; the
person seeking exclusion may also be required to post a surety bond
for any injury that may result if the detention or exclusion of the
articles proves to be unjustified.
(c) Articles imported in violation of the importation prohibitions of
this title are subject to seizure and forfeiture in the same manner as
property imported in violation of the customs revenue laws. Forfeited
articles shall be destroyed as directed by the Secretary of the Treasury
of the court, as the case may be; however, the articles may be returned
to the country of export whenever it is shown to the satisfaction of the
Secretary of the Treasury that the importer had no reasonable grounds
for believing that his or her acts constituted a violation of law.
CHAPTER 7 - COPYRIGHT OFFICE. Analysis.
Sec.
701. The Copyright Office: General responsibilities and organization.
702. Copyright Office regulations.
703. Effective date of actions in Copyright Office.
704. Retention and disposition of articles deposited in Copyright
Office.
705. Copyright Office records; Preparation, maintenance, public
inspection, and searching.
706. Copies of Copyright Office records.
707. Copyright Office forms and publications.
708. Copyright Office fees.
709. Delay in delivery caused by disruption of postal or other services.
710. Reproduction for use of the blind and physically handicapped:
Voluntary licensing forms and procedures.
Section 701. The Copyright Office: General responsibilities and
organization.
(a) All administrative functions and duties under this title, except as
otherwise specified, are the responsibility of the Register of
Copyrights as director of the Copyright Office of the Library of
Congress. The Register of Copyrights, together with the subordinate
officers and employees of the Copyright Office, shall be appointed by
the Librarian of Congress, and shall act under the Librarian's general
direction and supervision.
(b) The Register of Copyrights shall adopt a seal to be used on and
after January 1, 1978, to authenticate all certified documents issued by
the Copyright Office.
(c) The Register of Copyrights shall make an annual report to the
Librarian of Congress of the work and accomplishments of the
Copyright Office during the previous fiscal year. The annual report of
the Register of Copyrights shall be published separately and as a part
of the annual report of the Librarian of Congress.
(d) Except as provided by section 706(b) and the regulations issued
thereunder, all actions taken by the Register of Copyrights under this
title are subject to the provisions of the Administrative Procedure Act
of June 11, 1946, as amended (c. 324, 60 Stat. 237, title 5, United States
Code, Chapter 5, Subchapter II and Chapter 7).
Section 702. Copyright Office regulations.
The Register of Copyrights is authorized to establish regulations not
inconsistent with law for the administration of the functions and duties
made the responsibility of the Register under this title. All
regulations established by the Register under this title are subject to
the approval of the Librarian of Congress
Section 703. Effective date of actions in Copyright Office.
In any case in which time limits are prescribed under this title for
the performance of an action in the Copyright Office, and in which the
last day of the prescribed period falls on a Saturday, Sunday, holiday,
or other nonbusiness day within the District of Columbia or the Federal
Government, the action may be taken on the next succeeding business
day, and is effective as of the date when the period expired.
Section 704. Retention and disposition of articles deposited in
Copyright Office.
(a) Upon their deposit in the Copyright Office under section 407 and
408, all copies, phonorecords, and identifying material, including those
deposited in connection with claims that have been refused
registration, are the property of the United States Government.
(b) In the case of published works, all copies, phonorecords, and
identifying material deposited are available to the Library of
Congress for its collections, or for exchange or transfer to any other
library. In the case of unpublished works, the Library is entitled, under
regulations that the Register of Copyrights shall prescribe, to select
any deposits for its collections or for transfer to the National Archives
of the United States or to a Federal records center, as defined in section
2901 of title 44.
(c) The Register of Copyrights is authorized, for specific or general
categories of works, to make a facsimile reproduction of all or any part
of the material deposited under section 408, and to make such
reproduction a part of the Copyright Office records of the registration,
before transferring such material to the Library of Congress as provided
by subsection (b), or before destroying or otherwise disposing of such
material as provided by subsection (d).
(d) Deposits not selected by the Library under subsection (b), or
identifying portions or reproductions of them, shall be retained under
the control of the Copyright Office, including retention in Government
storage facilities, for the longest period considered practicable and
desirable by the Register of Copyrights and the Librarian of Congress.
After that period it is within the joint discretion of the Register and
the Librarian to order their destruction or other disposition; but, in the
case of unpublished works, no deposit shall be knowingly or
intentionally destroyed or otherwise disposed of during its term of
copyright unless a facsimile reproduction of the entire deposit has been
made a part of the Copyright Office records as provided by subsection (c).
(e) The depositor of copies, phonorecords, or identifying material
under section 408, or the copyright owner of record, may request
retention, under the control of the Copyright Office, of one or more of
such articles for the full term of copyright in the work. The Register of
Copyrights shall prescribe, by regulation, the conditions under which
such requests are to be made and granted, and shall fix the fee to be
charged under section 708(a)(11) if the request is granted.
Section 705. Copyright Office records: Preparation, maintenance,
public inspection, and searching.
(a) The Register of Copyrights shall provide and keep in the
Copyright Office records of all deposits, registrations, recordations,
and other actions taken under this title, and shall prepare indexes of
all such records.
(b) Such records and indexes, as well as the articles deposited in
connection with completed copyright registrations and retained under
the control of the Copyright Office, shall be open to public inspection.
(c) Upon request and payment of the fee specified by section 708, the
Copyright Office shall make a search of its public records, indexes, and
deposits, and shall furnish a report of the information they disclose
with respect to any particular deposits, registrations, or recorded
documents.
Section 706. Copies of Copyright Office records.
(a) Copies may be made of any public records or indexes of the
Copyright Office; additional certificates of copyright registration and
copies of any public records or indexes may be furnished upon request
and payment of the fees specified by section 708.
(b) Copies or reproductions of deposited articles retained under the
control of the Copyright Office shall be authorized or furnished only
under the conditions specified by the Copyright Office regulation.
Section 707. Copyright Office forms and publication.
(a) Catalog of Copyright Entries -- The Register of Copyrights shall
compile and publish at periodic intervals catalogs of all copyright
registrations. These catalogs shall be divided into parts in accordance
with the various classes of works, and the Register has discretion to
determine, on the basis of practicability and usefulness, the form and
frequency of publication of each particular part.
(b) Other Publication -- The Register shall furnish, free of charge
upon request, application forms for copyright registration and general
informational material in connection with the functions of the
Copyright Office. The Register also has the authority to publish
compilations of information, bibliographies, and other material he or
she considers to be of value to the public.
(c) Distribution of Publications. -- All publications of the Copyright
Office shall be furnished to depository libraries as specified under
section 1905 of title 44, and, aside from those furnished free of charge,
shall be offered for sale to the public at prices based on the cost of
reproduction and distribution.
Section 708. Copyright Office fees.
(a) The following fees shall be paid to the Register of Copyrights:
(1) on filing each application for registration of a copyright claim
or a supplementary registration under section 408, including the
issuance of a certificate of registration if registration is made, $10;
(2) on filing each application for registration of a claim to renewal
of a subsisting copyright in its first term under section 304(a),
including the issuance of a certificate of registration if registration
is made, $6;
(3) for the issuance of a receipt for a deposit under section
407, $2;
(4) for the recordation, as provided by section 205, of a transfer
of copyright ownership or other document of six pages or less, covering
no more than one title; $10; for each page over six and each title
over one, 50 cents additional;
(5) for the filing, under section 115(b), of a notice of intention
to make phonorecords, $6;
(6) for the recordation, under section 302(c), of a statement
revealing the identity of an author of an anonymous or
pseudonymous work, or for the recordation, under section 302(d), of a
statement relating to the death of an author, $10 for a document of
six pages or less, covering no more than one title; for each page over
six and for each title over one, $1 additional;
(7) for the issuance, under section 601, of an import statement, $3;
(8) for the issuance, under section 706, of an additional certificate
of registration, $4;
(9) for the issuance of any other certification, $4; the Register of
Copyrights has discretion, on the basis of their cost, to fix the fees
for preparing copies of Copyright Office records, whether they are
to be certified or not;
(10) for the making and reporting of a search as provided by section
705, and for any related services, $10 for each hour or fraction of an
hour consumed;
(11) for any other special services requiring a substantial amount of
time or expense, such fees as the Register of Copyrights may fix on
the basis of the cost of providing the service.
(b) The fees prescribed by or under this section are applicable to the
United States Government and any of its agencies, employees, or
officers, but the Register of Copyrights has discretion to waive the
requirement of this subsection in occasional or isolated cases involving
relatively small amounts.
(c) All fees received under this section shall be deposited by the
Register of Copyrights in the Treasury of the United States and shall
be credited to the appropriation for necessary expenses of the
Copyright Office. The Register may, in accordance with regulations
that he or she shall prescribe, refund any sum paid by mistake or in
excess of the fee required by this section.
Section 709. Delay in delivery caused by disruption of postal or other
services.
In any case in which the Register of Copyrights determines, on the
basis of such evidence as the Register may by regulation require, that a
deposit, application, fee, or any other material to be delivered to the
Copyright Office by a particular date, would have been received in the
Copyright Office in due time except for a general disruption or
suspension of postal or other transportation or communications services,
the actual receipt of such material in the Copyright Office within one
month after the date on which the Register determines that the
disruption or suspension of such services has terminated, shall be
considered timely.
Section 710. Reproduction for use of the blind and physically
handicapped: Voluntary licensing forms and procedures.
The Register of Copyrights shall, after consultation with the Chief
of the Division for the Blind and Physically Handicapped and other
appropriate officials of the Library of Congress, establish by
regulation standardized forms and procedures by which, at the time
applications covering certain specified categories of nondramatic
literary works are submitted for registration under section 408 of this
title, the copyright owner may voluntarily grant to the Library of
Congress a license to reproduce the copyrighted work by means of
Braille or similar tactile symbols, or by fixation of a reading of the
work in a phonorecord, or both, and to distribute the resulting copies or
phonorecords solely for the use of the blind and physically
handicapped and under limited conditions to be specified in the
standardized forms.
CHAPTER 8 - COPYRIGHT ROYALTY TRIBUNAL. Analysis.
Sec.
801. Copyright Royalty Tribunal: Establishment and purpose.
802. Membership of the Tribunal.
803. Procedures of the Tribunal.
804. Institution and conclusion of proceedings.
805. Staff of the Tribunal.
806. Administrative support of the Tribunal.
807. Deduction of costs of proceedings.
808. Reports.
809. Effective date of final determinations.
810. Judicial review.
Section 801. Copyright Royalty Tribunal: Establishment and purpose.
(a) There is hereby an independent Copyright Royalty Tribunal in
the legislative branch.
(b) Subject to the provisions of this chapter, the purposes of the
Tribunal shall be-
(1) to make determinations concerning the adjustment of reasonable
copyright royalty rates as provided in sections 115 and 116, and to
make determinations as to reasonable terms and rates of royalty
payments as provided in section 118. The rates applicable under
sections 115 and 116 shall be calculated to achieve the following
objectives.
(A) To maximize the availability of creative works to the
public;
(B) To afford the copyright owner a fair return for his creative
work and the copyright user a fair income under existing
economic conditions;
(C) To reflect the relative roles of the copyright owner and the
copyright user in the product made available to the public with
respect to relative creative contribution, technological
contribution, capital investment, cost, risk, and contribution to
the opening of new markets for creative expression and media for
their communication;
(D) To minimize any disruptive impact on the structure of the
industries involved and on generally prevailing industry
practices.
(2) to make determinations concerning the adjustment of copyright
royalty rates in section 111 solely in accordance with the following
provisions:
(A) The rates established by section 111(d)(2)(B) may be
adjusted to reflect (i) national monetary inflation or deflation or
(ii) changes in the average rates charged cable subscribers for
the basic service of providing secondary transmissions to
maintain the real constant dollar level of the royalty fee per
subscriber which existed as of the date of enactment of this Act:
Provided, That if the average rates charged cable system
subscribers for the basic service of providing secondary
transmissions are changed so that the average rates exceed
national monetary inflation, no change in the rates established
by section 111(d)(2)(B) shall be permitted: And provided
further, That no increase in the royalty fee shall be permitted
based on any reduction in the average number of distant signal
equivalents per subscriber. The Commission may consider all
factors relating to the maintenance of such level of payments
including, as an extenuating factor, whether the cable industry
has been restrained by subscriber rate regulating authorities from
increasing the rates for the basic service of providing secondary
transmissions.
(B) In the event that the rules and regulations of the Federal
Communications Commission are amended at any time after
April 15, 1976, to permit the carriage by cable systems of
additional television broadcast signals beyond the local service
area of the primary transmitters of such signals, the royalty
rates established by section 111(d)(2)(B) may be adjusted to
insure that the rates for the additional distant signal
equivalents resulting from such carriage are reasonable in the
light of the changes effected by the amendment to such rules and
regulations. In determining the reasonableness of rates proposed
following an amendment of Federal Communications Commission
rules and regulations, the Copyright Royalty Tribunal shall
consider, among other factors, the economic impact on copyright
owners and users: Provided, That no adjustment in royalty rates
shall be made under this subclause with respect to any distant
signal equivalent or fraction thereof represented by (i) carriage
of a signal of the same type (that is, independent, network, or
noncommercial educational) substituted for such permitted
signal, or (ii) a television broadcast signal first carried after
April 15, 1976, pursuant to an individual waiver of the rules and
regulations of the Federal Communications Commission, as such
rules and regulations were in effect on April 14, 1976.
(C) In the event of any change in the rules and regulations of
the Federal Communications Commission with respect to syndicated
and sports program exclusivity after April 15, 1976, the rates
established by section 111(d)(2)(B) may be adjusted to assure
that such rates are reasonable in light of the changes to such
rules and regulations, but any such adjustment shall apply only
to the affected television broadcast signals carried on those
systems affected by the change.
(D) The gross receipts limitations established by section
111(d)(2)(C) and (D) shall be adjusted to reflect national
monetary inflation or deflation or changes in the average rates
charged cable system subscribers for the basic service of
providing secondary transmissions to maintain the real constant
dollar value of the exemption provided by such section; and the
royalty rate specified therein shall not be subject to adjustment;
and
(3) As soon as possible after the date of enactment of this Act, and
no later than six months following such date, the President shall
publish a notice announcing the initial appointments provided in
section 802, and shall designate an order of seniority among the
initially-appointed commissioners for purposes of section 802(b).
Section 802. Membership of the Tribunal.
(a) The Tribunal shall be composed of five commissioners appointed
by the President with the advise and consent of the Senate for a term of
seven years each; of the first five members appointed, three shall be
designated to serve for seven years from the date of the notice specified
in section 801(C), and two shall be designated to serve for five years
from such date, respectively. Commissioners shall be compensated at
the highest rate now or hereafter prescribe sic for grade 18 of the
General Schedule pay rates (5 U.S.C. 5332).
(b) Upon convening the commissioners shall elect a chairman from
among the commissioners appointed for a full seven-year term. Such
chairman shall serve for a term of one year. Thereafter, the most senior
commissioner who has not previously served as chairman shall serve as
chairman for a period of one year, except that, if all commissioners
have served a full term as chairman, the most senior commissioner who
has served the least number of terms as chairman shall be designated
as chairman.
(c) Any vacancy in the Tribunal shall not affect its powers and shall
be filed, for the unexpired term of the appointment, in the same manner
as the original appointment was made.
Section 803. Procedures of the Tribunal.
(a) The Tribunal shall adopt regulations, not inconsistent with law,
governing procedure and methods of operation. Except as otherwise
provided in this chapter, the Tribunal shall be subject to the provisions
of the Administrative Procedure Act of June 11, 1946, as amended (c. 324,
60 Stat. 237, title 5, United States Code, chapter 5, subchapter II and
chapter 7).
Section 804. Institution and conclusion of proceedings.
(a) With respect to proceedings under section 801(b)(1) concerning the
investment of royalty rates as provided in sections 115 and 116, and
with respect to proceedings under section 801(b)(2)(A) and (D)-
(1) on January 1, 1980, the Chairman of the Tribunal shall cause to
be published in the Federal Register notice of commencement of
proceedings under this chapter; and
(2) during the calendar years specified in the following schedule,
any owner or user of a copyrighted work whose royalty rates are
specified by this title, or by a rate established by the Tribunal, may
file a petition with the Tribunal declaring that the petitioner
requests an adjustment of the rate. The Tribunal shall make a
determination as to whether the applicant has a significant interest
in the royalty rate in which an adjustment is requested. If the
Tribunal determines that the petitioner has a significant interest,
the Chairman shall cause notice of this determination, with the
reasons therefor, to be published in the Federal Register, together
with notice of commencement of proceedings under this chapter.
(A) In proceedings under section 801(b)(2)(A) and (D), such
petition may be filed during 1985 and in each subsequent fifth
calendar year.
(B) In proceedings under section 801(b)(1) concerning the
adjustment of royalty rates as provided in section 115, such petition
may be filed in 1987 and in each subsequent tenth calendar year.
(C) In proceedings under section 801(b)(1) concerning the
adjustment of royalty rates under section 116, such petition may be
filed in 1990 and in each subsequent tenth calendar year.
(b) With respect to proceedings under subclause (B) or (C) of section
(_)(2), following an event described in either of those subsections, any
____ or user of a copyrighted work whose royalty rates are specified by
section ____ by a rate established by the Tribunal, may, within twelve
months, file a ___on with the Tribunal declaring that the petitioner
requests an adjustment of the rate. In this event the Tribunal shall
proceed as in subsection (a)(2), above. Any change in royalty rates made
by the Tribunal pursuant to this subsection may be reconsidered in 1980,
1985, and each fifth calendar year thereafter, in accordance with the
provisions in section 801(b)(2)(B) or (C), as the case may be.
(c) With respect to proceedings under section 801(b)(1), concerning the
determination of reasonable terms and rates of royalty payments as
provided in section 118, the Tribunal shall proceed when and as
provided by that section.
(d) With respect to proceedings under section 801(b)(3), concerning the
distribution of royalty fees in certain circumstances under sections 111 or
116, the Chairman of the Tribunal shall, upon determination by the
Tribunal that a controversy exists concerning such distribution, cause to
be published in the Federal Register notice of commencement of
proceedings under this chapter.
(e) All proceedings under this chapter shall be initiated without
delay following publication of the notice specified in this section, and
the Tribunal shall render its final decision in any such proceeding with
one year from the date of such publication.
Section 805. Staff of the Tribunal.
(a) The Tribunal is authorized to appoint and fix the compensation of
such employees as may be necessary to carry out the provisions of this
chapter, and to prescribe their functions and duties.
(b) The Tribunal may procure temporary and intermittent services to
the same extent as is authorized by section 3109 of title 5.
Section 806. Administrative support of the Tribunal.
(a) The Library of Congress shall provide the Tribunal with
necessary administrative services, including those related to budgeting,
accounting, financial reporting, travel, personnel, and procurement. The
Tribunal shall pay the Library for such services, either in advance or
by reimbursement from the funds of the Tribunal, at amounts to be
agreed upon between the Librarian and the Tribunal.
(b) The Library of Congress is authorized to disburse funds for the
Tribunal, under regulations prescribed jointly by the Librarian of
Congress and the Tribunal and approved by the Comptroller General.
Such regulations shall establish requirements and procedures under
which every voucher certified for payment by the Library of Congress
under this chapter shall be supported with a certification by a duly
authorized officer or employee of the Tribunal, and shall prescribe the
responsibilities and accountability of said officers and employees of
the Tribunal with respect to such certifications.
Section 807. Deduction of costs of proceedings.
Before any funds are distributed pursuant to a final decision in a
proceeding involving distribution of royalty fees, the Tribunal shall
assess the reasonable costs of such proceeding.
Section 808. Reports.
In addition to its publication of the reports of all final
determinations as provided in section 803(b), the Tribunal shall make
an annual report to the President and the Congress concerning the
Tribunal's work during the preceding fiscal year, including a detailed
fiscal statement of account.
Section 809. Effective date of final determinations.
Any final determination by the Tribunal under this chapter shall
become effective thirty days following its publication in the Federal
Register as provided in section 803(b), unless prior to that time an
appeal has been filed pursuant to section 810, to vacate, modify, or
correct such determination, and notice of such appeal has been served on
all parties who appeared before the Tribunal in the proceeding in
question. Where the proceeding involves the distribution of royalty
fees under sections 111 or 116, the Tribunal shall, upon the expiration of
such thirty-day period, distribute any royalty fees not subject to an
appeal filed pursuant to section 810.
Section 810. Judicial review.
Any final decision of the Tribunal in a proceeding under section 801(b)
may be appealed to the United States Court of Appeals, within thirty
days after its publication in the Federal Register by an aggrieved
party. The judicial review of the decision shall be had, in accordance
with chapter 7 of title 5, on the basis of the record before the Tribunal.
No court shall have jurisdiction to review a final decision of the
Tribunal except as provided in this section.
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