Chapter 1

Subject Matter and Scope of Copyright

  + 101. Definitions
  + 102. Subject matter of copyright: In general
  + 103. Subject matter of copyright: Compilations and derivative works
  + 104. Subject matter of copyright: National origin
  + 104A. Copyright in restored works
  + 105. Subject matter of copyright: United States Government works
  + 106. Exclusive rights in copyrighted works
  + 106A. Rights of certain authors to attribution and integrity
  + 107. Limitations on exclusive rights: Fair use
  + 108. Limitations on exclusive rights: Reproduction by libraries and archives
  + 109. Limitations on exclusive rights: Effect of transfer of
         particular copy or phonorecord
  + 110. Limitations on exclusive rights: Exemption of certain performances and displays
  + 111. Limitations on exclusive rights: Secondary transmissions
  + 112. Limitations on exclusive rights: Ephemeral recordings
  + 113. Scope of exclusive rights in pictorial, graphic, and sculptural works
  + 114. Scope of exclusive rights in sound recordings
  + 115. Scope of exclusive rights in nondramatic musical works:
         Compulsory license for making and distributing phonorecords
  + 116. Negotiated licenses for public performances by means of coin-
         operated phonorecord players
  + 117. Limitations on exclusive rights: Computer programs [1]
  + 118. Scope of exclusive rights: Use of certain works in connection
         with noncommercial broadcasting
  + 119. Limitations on exclusive rights: Secondary transmissions of
         superstations and network stations for private home viewing
  + 120. Scope of exclusive rights in architectural works
  + 121. Limitations on exclusive rights: reproduction for blind or
         other people with disabilities
  + 122. Limitations on exclusive rights; secondary transmissions by
         satellite carriers within local market


Section 101. Definitions [2]

Except as otherwise provided in this title, as used in this title, the
following terms and their variant forms mean the following:

An "anonymous work" is a work on the copies or phonorecords of which no
natural person is identified as author.

An "architectural work" is the design of a building as embodied in any
tangible medium of expression, including a building, architectural
plans, or drawings. The work includes the overall form as well as the
arrangement and composition of spaces and elements in the design, but
does not include individual standard features. [3]

"Audiovisual works" are works that consist of a series of related images
which are intrinsically intended to be shown by the use of machines or
devices such as projectors, viewers, or electronic equipment, together
with accompanying sounds, if any, regardless of the nature of the
material objects, such as films or tapes, in which the works are
embodied.

The "Berne Convention" is the Convention for the Protection of Literary
and Artistic Works, signed at Berne, Switzerland, on September 9, 1886,
and all acts, protocols, and revisions thereto. [4]

The "best edition" of a work is the edition, published in the United
States at any time before the date of deposit, that the Library of
Congress determines to be most suitable for its purposes.

A person's "children" are that person's immediate offspring, whether
legitimate or not, and any children legally adopted by that person.

A "collective work" is a work, such as a periodical issue, anthology, or
encyclopedia, in which a number of contributions, constituting separate
and independent works in themselves, are assembled into a collective whole.

A "compilation" is a work formed by the collection and assembling of
preexisting materials or of data that are selected, coordinated, or
arranged in such a way that the resulting work as a whole constitutes an
original work of authorship. The term "compilation" includes collective works.

"Copies" are material objects, other than phonorecords, in which a work
is fixed by any method now known or later developed, and from which the
work can be perceived, reproduced, or otherwise communicated, either
directly or with the aid of a machine or device. The term "copies"
includes the material object, other than a phonorecord, in which the
work is first fixed.

"Copyright owner", with respect to any one of the exclusive rights
comprised in a copyright, refers to the owner of that particular right.

A work is "created" when it is fixed in a copy or phonorecord for the
first time; where a work is prepared over a period of time, the portion
of it that has been fixed at any particular time constitutes the work as
of that time, and where the work has been prepared in different
versions, each version constitutes a separate work.

A "derivative work" is a work based upon one or more preexisting works,
such as a translation, musical arrangement, dramatization,
fictionalization, motion picture version, sound recording, art
reproduction, abridgment, condensation, or any other form in which a
work may be recast, transformed, or adapted. A work consisting of
editorial revisions, annotations, elaborations, or other modifications,
which, as a whole, represent an original work of authorship, is a
"derivative work".

A "device", "machine", or "process" is one now known or later developed.

A "digital transmission" is a transmission in whole or in part in a
digital or other non-analog format. [5]

To "display" a work means to show a copy of it, either directly or by
means of a film, slide, television image, or any other device or process
or, in the case of a motion picture or other audiovisual work, to show
individual images nonsequentially.

An "establishment" is a store, shop, or any similar place of business
open to the general public for the primary purpose of selling goods or
services in which the majority of the gross square feet of space that is
nonresidential is used for that purpose, and in which nondramatic
musical works are performed publicly. [6]

A "food service or drinking establishment" is a restaurant, inn, bar,
tavern, or any other similar place of business in which the public or
patrons assemble for the primary purpose of being served food or drink,
in which the majority of the gross square feet of space that is
nonresidential is used for that purpose, and in which nondramatic
musical works are performed publicly. [7]

The term "financial gain" includes receipt, or expectation of receipt,
of anything of value, including the receipt of other copyrighted works. [8]

A work is "fixed" in a tangible medium of expression when its embodiment
in a copy or phonorecord, by or under the authority of the author, is
sufficiently permanent or stable to permit it to be perceived,
reproduced, or otherwise communicated for a period of more than
transitory duration. A work consisting of sounds, images, or both, that
are being transmitted, is "fixed" for purposes of this title if a
fixation of the work is being made simultaneously with its transmission.

The "Geneva Phonograms Convention" is the Convention for the Protection
of Producers of Phonograms Against Unauthorized Duplication of Their
Phonograms, concluded at Geneva, Switzerland, on October 29, 1971. [9]

The "gross square feet of space" of an establishment means the entire
interior space of that establishment, and any adjoining outdoor space
used to serve patrons, whether on a seasonal basis or otherwise. [10]

The terms "including" and "such as" are illustrative and not limitative.

An "international agreement" is-

(1) the Universal Copyright Convention;
(2) the Geneva Phonograms Convention;
(3) the Berne Convention;
(4) the WTO Agreement;
(5) the WIPO Copyright Treaty; [11]
(6) the WIPO Performances and Phonograms Treaty; [12] and
(7) any other copyright treaty to which the United States is a party. [13]

A "joint work" is a work prepared by two or more authors with the
intention that their contributions be merged into inseparable or
interdependent parts of a unitary whole.

"Literary works" are works, other than audiovisual works, expressed in
words, numbers, or other verbal or numerical symbols or indicia,
regardless of the nature of the material objects, such as books,
periodicals, manuscripts, phonorecords, film, tapes, disks, or cards, in
which they are embodied.

"Motion pictures" are audiovisual works consisting of a series of
related images which, when shown in succession, impart an impression of
motion, together with accompanying sounds, if any.

To "perform" a work means to recite, render, play, dance, or act it,
either directly or by means of any device or process or, in the case of
a motion picture or other audiovisual work, to show its images in any
sequence or to make the sounds accompanying it audible.

A "performing rights society" is an association, corporation, or other
entity that licenses the public performance of nondramatic musical works
on behalf of copyright owners of such works, such as the American
Society of Composers, Authors and Publishers (ASCAP), Broadcast Music,
Inc. (BMI), and SESAC, Inc. [14]

"Phonorecords" are material objects in which sounds, other than those
accompanying a motion picture or other audiovisual work, are fixed by
any method now known or later developed, and from which the sounds can
be perceived, reproduced, or otherwise communicated, either directly or
with the aid of a machine or device. The term "phonorecords" includes
the material object in which the sounds are first fixed.

"Pictorial, graphic, and sculptural works" include two-dimensional and
three-dimensional works of fine, graphic, and applied art, photographs,
prints and art reproductions, maps, globes, charts, diagrams, models,
and technical drawings, including architectural plans. Such works shall
include works of artistic craftsmanship insofar as their form but not
their mechanical or utilitarian aspects are concerned; the design of a
useful article, as defined in this section, shall be considered a
pictorial, graphic, or sculptural work only if, and only to the extent
that, such design incorporates pictorial, graphic, or sculptural
features that can be identified separately from, and are capable of
existing independently of, the utilitarian aspects of the article. [15]

For purposes of section 513, a "proprietor" is an individual,
corporation, partnership, or other entity, as the case may be, that owns
an establishment or a food service or drinking establishment, except
that no owner or operator of a radio or television station licensed by
the Federal Communications Commission, cable system or satellite
carrier, cable or satellite carrier service or programmer, provider of
online services or network access or the operator of facilities
therefor, telecommunications company, or any other such audio or
audiovisual service or programmer now known or as may be developed in
the future, commercial subscription music service, or owner or operator
of any other transmission service, shall under any circumstances be
deemed to be a proprietor. [16]

A "pseudonymous work" is a work on the copies or phonorecords of which
the author is identified under a fictitious name.

"Publication" is the distribution of copies or phonorecords of a work to
the public by sale or other transfer of ownership, or by rental, lease,
or lending. The offering to distribute copies or phonorecords to a group
of persons for purposes of further distribution, public performance, or
public display, constitutes publication. A public performance or display
of a work does not of itself constitute publication.

To perform or display a work "publicly" means-

(1) to perform or display it at a place open to the public or at any
place where a substantial number of persons outside of a normal circle
of a family and its social acquaintances is gathered; or

(2) to transmit or otherwise communicate a performance or display of the
work to a place specified by clause (1) or to the public, by means of
any device or process, whether the members of the public capable of
receiving the performance or display receive it in the same place or in
separate places and at the same time or at different times.

"Registration", for purposes of sections 205(c)(2), 405, 406, 410(d),
411, 412, and 506(e), means a registration of a claim in the original or
the renewed and extended term of copyright. [17]

"Sound recordings" are works that result from the fixation of a series
of musical, spoken, or other sounds, but not including the sounds
accompanying a motion picture or other audiovisual work, regardless of
the nature of the material objects, such as disks, tapes, or other
phonorecords, in which they are embodied.

"State" includes the District of Columbia and the Commonwealth of Puerto
Rico, and any territories to which this title is made applicable by an
Act of Congress.

A "transfer of copyright ownership" is an assignment, mortgage,
exclusive license, or any other conveyance, alienation, or hypothecation
of a copyright or of any of the exclusive rights comprised in a
copyright, whether or not it is limited in time or place of effect, but
not including a nonexclusive license.

A "transmission program" is a body of material that, as an aggregate,
has been produced for the sole purpose of transmission to the public in
sequence and as a unit.

To "transmit" a performance or display is to communicate it by any
device or process whereby images or sounds are received beyond the place
from which they are sent.

A "treaty party" is a country or intergovernmental organization other
than the United States that is a party to an international agreement. [18]

The "United States", when used in a geographical sense, comprises the
several States, the District of Columbia and the Commonwealth of Puerto
Rico, and the organized territories under the jurisdiction of the United
States Government.

For purposes of section 411, a work is a "United States work" only if:

(1) in the case of a published work, the work is first published-

(A) in the United States;

(B) simultaneously in the United States and another treaty party or
parties, whose law grants a term of copyright protection that is the
same as or longer than the term provided in the United States;

(C) simultaneously in the United States and a foreign nation that is not
a treaty party; or

(D) in a foreign nation that is not a treaty party, and all of the
authors of the work are nationals, domiciliaries, or habitual residents
of, or in the case of an audiovisual work legal entities with
headquarters in, the United States;

(2) in the case of an unpublished work, all the authors of the work are
nationals, domiciliaries, or habitual residents of the United States,
or, in the case of an unpublished audiovisual work, all the authors are
legal entities with headquarters in the United States; or

(3) in the case of a pictorial, graphic, or sculptural work incorporated
in a building or structure, the building or structure is located in the
United States. [19]

A "useful article" is an article having an intrinsic utilitarian
function that is not merely to portray the appearance of the article or
to convey information. An article that is normally a part of a useful
article is considered a "useful article".

The author's "widow" or "widower" is the author's surviving spouse under
the law of the author's domicile at the time of his or her death,
whether or not the spouse has later remarried.

The "WIPO Copyright Treaty" is the WIPO Copyright Treaty concluded at
Geneva, Switzerland, on December 20, 1996. [20]

The "WIPO Performances and Phonograms Treaty" is the WIPO Performances
and Phonograms Treaty concluded at Geneva, Switzerland, on December 20,
1996. [21]

A "work of visual art" is-

(1) a painting, drawing, print or sculpture, existing in a single copy,
in a limited edition of 200 copies or fewer that are signed and
consecutively numbered by the author, or, in the case of a sculpture, in
multiple cast, carved, or fabricated sculptures of 200 or fewer that are
consecutively numbered by the author and bear the signature or other
identifying mark of the author; or

(2) a still photographic image produced for exhibition purposes only,
existing in a single copy that is signed by the author, or in a limited
edition of 200 copies or fewer that are signed and consecutively
numbered by the author.

A work of visual art does not include-

(A)(i) any poster, map, globe, chart, technical drawing, diagram, model,
applied art, motion picture or other audiovisual work, book, magazine,
newspaper, periodical, data base, electronic information service,
electronic publication, or similar publication;

(ii) any merchandising item or advertising, promotional, descriptive,
covering, or packaging material or container;

(iii) any portion or part of any item described in clause (i) or (ii);

(B) any work made for hire; or

(C) any work not subject to copyright protection under this title. [22]

A "work of the United States Government" is a work prepared by an
officer or employee of the United States Government as part of that
person's official duties.

A "work made for hire" is-

(1) a work prepared by an employee within the scope of his or her employment; or

(2) a work specially ordered or commissioned for use as a contribution
to a collective work, as a part of a motion picture or other audiovisual
work, as a translation, as a supplementary work, as a compilation, as an
instructional text, as a test, as answer material for a test, or as an
atlas, if the parties expressly agree in a written instrument signed by
them that the work shall be considered a work made for hire. For the
purpose of the foregoing sentence, a "supplementary work" is a work
prepared for publication as a secondary adjunct to a work by another
author for the purpose of introducing, concluding, illustrating,
explaining, revising, commenting upon, or assisting in the use of the
other work, such as forewords, afterwords, pictorial illustrations,
maps, charts, tables, editorial notes, musical arrangements, answer
material for tests, bibliographies, appendixes, and indexes, and an
"instructional text" is a literary, pictorial, or graphic work prepared
for publication and with the purpose of use in systematic instructional activities.

In determining whether any work is eligible to be considered a work made
for hire under paragraph (2), neither the amendment contained in section
1011(d) of the Intellectual Property and Communications Omnibus Reform
Act of 1999, as enacted by section 1000(a)(9) of Public Law 106-113, nor
the deletion of the words added by that amendment--

(A) shall be considered or otherwise given any legal significance, or

(B) shall be interpreted to indicate congressional approval or
disapproval of, or acquiescence in, any judicial determination,

by the courts or the Copyright Office. Paragraph (2) shall be
interpreted as if both section 2(a)(1) of the Work Made For Hire and
Copyright Corrections Act of 2000 and section 1011(d) of the
Intellectual Property and Communications Omnibus Reform Act of 1999, as
enacted by section 1000(a)(9) of Public Law 106-113, were never enacted,
and without regard to any inaction or awareness by the Congress at any
time of any judicial determinations. [23]

The terms "WTO Agreement" and "WTO member country" have the meanings
given those terms in paragraphs (9) and (10), respectively, of section 2
of the Uruguay Round Agreements Act. {24}

A "computer program" is a set of statements or instructions to be used
directly or indirectly in a computer in order to bring about a certain
result. [25]


Section 102. Subject matter of copyright: In general [26]

(a) Copyright protection subsists, in accordance with this title, in
original works of authorship fixed in any tangible medium of expression,
now known or later developed, from which they can be perceived,
reproduced, or otherwise communicated, either directly or with the aid
of a machine or device. Works of authorship include the following categories:

(1) literary works;
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8) architectural works.
(b) In no case does copyright protection for an original work of
authorship extend to any idea, procedure, process, system, method of
operation, concept, principle, or discovery, regardless of the form in
which it is described, explained, illustrated, or embodied in such work.


Section 103. Subject matter of copyright: Compilations and derivative works

(a) The subject matter of copyright as specified by section 102 includes
compilations and derivative works, but protection for a work employing
preexisting material in which copyright subsists does not extend to any
part of the work in which such material has been used unlawfully.

(b) The copyright in a compilation or derivative work extends only to
the material contributed by the author of such work, as distinguished
from the preexisting material employed in the work, and does not imply
any exclusive right in the preexisting material. The copyright in such
work is independent of, and does not affect or enlarge the scope,
duration, ownership, or subsistence of, any copyright protection in the
preexisting material.


Section 104. Subject matter of copyright: National origin [27]

(a) Unpublished Works.  The works specified by sections 102 and 103,
while unpublished, are subject to protection under this title without
regard to the nationality or domicile of the author.

(b) Published Works.  The works specified by sections 102 and 103, when
published, are subject to protection under this title if-

(1) on the date of first publication, one or more of the authors is a
national or domiciliary of the United States, or is a national,
domiciliary, or sovereign authority of a treaty party, or is a stateless
person, wherever that person may be domiciled; or

(2) the work is first published in the United States or in a foreign
nation that, on the date of first publication, is a treaty party; or

(3) the work is a sound recording that was first fixed in a treaty party; or

(4) the work is a pictorial, graphic, or sculptural work that is
incorporated in a building or other structure, or an architectural work
that is embodied in a building and the building or structure is located
in the United States or a treaty party; or

(5) the work is first published by the United Nations or any of its
specialized agencies, or by the Organization of American States; or

(6) the work comes within the scope of a Presidential proclamation.
Whenever the President finds that a particular foreign nation extends,
to works by authors who are nationals or domiciliaries of the United
States or to works that are first published in the United States,
copyright protection on substantially the same basis as that on which
the foreign nation extends protection to works of its own nationals and
domiciliaries and works first published in that nation, the President
may by proclamation extend protection under this title to works of which
one or more of the authors is, on the date of first publication, a
national, domiciliary, or sovereign authority of that nation, or which
was first published in that nation. The President may revise, suspend,
or revoke any such proclamation or impose any conditions or limitations
on protection under a proclamation.

For purposes of paragraph (2), a work that is published in the United
States or a treaty party within 30 days after publication in a foreign
nation that is not a treaty party shall be considered to be first
published in the United States or such treaty party, as the case may be.

(c) Effect of Berne Convention.  No right or interest in a work eligible
for protection under this title may be claimed by virtue of, or in
reliance upon, the provisions of the Berne Convention, or the adherence
of the United States thereto. Any rights in a work eligible for
protection under this title that derive from this title, other Federal
or State statutes, or the common law, shall not be expanded or reduced
by virtue of, or in reliance upon, the provisions of the Berne
Convention, or the adherence of the United States thereto.

(d) Effect of Phonograms Treaties.  Notwithstanding the provisions of
subsection (b), no works other than sound recordings shall be eligible
for protection under this title solely by virtue of the adherence of the
United States to the Geneva Phonograms Convention or the WIPO
Performances and Phonograms Treaty. [28]


Section 104A. Copyright in restored works [29]

(a) Automatic Protection and Term.-

(1) Term.-

(A) Copyright subsists, in accordance with this section, in restored
works, and vests automatically on the date of restoration.

(B) Any work in which copyright is restored under this section shall
subsist for the remainder of the term of copyright that the work would
have otherwise been granted in the United States if the work never
entered the public domain in the United States.

(2) Exception.  Any work in which the copyright was ever owned or
administered by the Alien Property Custodian and in which the restored
copyright would be owned by a government or instrumentality thereof, is
not a restored work.

(b) Ownership of Restored Copyright.  A restored work vests initially in
the author or initial rightholder of the work as determined by the law
of the source country of the work.

(c) Filing of Notice of Intent to Enforce Restored Copyright Against
Reliance Parties.  On or after the date of restoration, any person who
owns a copyright in a restored work or an exclusive right therein may
file with the Copyright Office a notice of intent to enforce that
person's copyright or exclusive right or may serve such a notice
directly on a reliance party. Acceptance of a notice by the Copyright
Office is effective as to any reliance parties but shall not create a
presumption of the validity of any of the facts stated therein. Service
on a reliance party is effective as to that reliance party and any other
reliance parties with actual knowledge of such service and of the
contents of that notice.

(d) Remedies for Infringement of Restored Copyrights.-

(1) Enforcement of Copyright in Restored Works in the Absence of a
Reliance Party.  As against any party who is not a reliance party, the
remedies provided in chapter 5 of this title shall be available on or
after the date of restoration of a restored copyright with respect to an
act of infringement of the restored copyright that is commenced on or
after the date of restoration.

(2) Enforcement of Copyright in Restored Works as Against Reliance
Parties.  As against a reliance party, except to the extent provided in
paragraphs (3) and (4), the remedies provided in chapter 5 of this title
shall be available, with respect to an act of infringement of a restored
copyright, on or after the date of restoration of the restored copyright
if the requirements of either of the following subparagraphs are met:

(A)(i) The owner of the restored copyright (or such owner's agent) or
the owner of an exclusive right therein (or such owner's agent) files
with the Copyright Office, during the 24-month period beginning on the
date of restoration, a notice of intent to enforce the restored
copyright; and

(ii)(I) the act of infringement commenced after the end of the 12-month
period beginning on the date of publication of the notice in the Federal Register;

(II) the act of infringement commenced before the end of the 12-month
period described in subclause (I) and continued after the end of that
12-month period, in which case remedies shall be available only for
infringement occurring after the end of that 12-month period; or

(III) copies or phonorecords of a work in which copyright has been
restored under this section are made after publication of the notice of
intent in the Federal Register.

(B)(i) The owner of the restored copyright (or such owner's agent) or
the owner of an exclusive right therein (or such owner's agent) serves
upon a reliance party a notice of intent to enforce a restored
copyright; and

(ii)(I) the act of infringement commenced after the end of the 12-month
period beginning on the date the notice of intent is received;

(II) the act of infringement commenced before the end of the 12-month
period described in subclause (I) and continued after the end of that
12-month period, in which case remedies shall be available only for the
infringement occurring after the end of that 12-month period; or

(III) copies or phonorecords of a work in which copyright has been
restored under this section are made after receipt of the notice of
intent.

In the event that notice is provided under both subparagraphs (A) and
(B), the 12-month period referred to in such subparagraphs shall run
from the earlier of publication or service of notice.

(3) Existing Derivative Works.-

(A) In the case of a derivative work that is based upon a restored work
and is created-

(i) before the date of the enactment of the Uruguay Round Agreements
Act, if the source country of the restored work is an eligible country
on such date, or

(ii) before the date on which the source country of the restored work
becomes an eligible country, if that country is not an eligible country
on such date of enactment, a reliance party may continue to exploit that
derivative work for the duration of the restored copyright if the
reliance party pays to the owner of the restored copyright reasonable
compensation for conduct which would be subject to a remedy for
infringement but for the provisions of this paragraph.

(B) In the absence of an agreement between the parties, the amount of
such compensation shall be determined by an action in United States
district court, and shall reflect any harm to the actual or potential
market for or value of the restored work from the reliance party's
continued exploitation of the work, as well as compensation for the
relative contributions of expression of the author of the restored work
and the reliance party to the derivative work.

(4) Commencement of Infringement for Reliance Parties.  For purposes of
section 412, in the case of reliance parties, infringement shall be
deemed to have commenced before registration when acts which would have
constituted infringement had the restored work been subject to copyright
were commenced before the date of restoration.

(e) Notices of Intent to Enforce a Restored Copyright.-

(1) Notices of Intent Filed With the Copyright Office.-

(A)(i) A notice of intent filed with the Copyright Office to enforce a
restored copyright shall be signed by the owner of the restored
copyright or the owner of an exclusive right therein, who files the
notice under subsection (d)(2)(A)(i) (hereafter in this paragraph
referred to as the "owner"), or by the owner's agent, shall identify the
title of the restored work, and shall include an English translation of
the title and any other alternative titles known to the owner by which
the restored work may be identified, and an address and telephone number
at which the owner may be contacted. If the notice is signed by an
agent, the agency relationship must have been constituted in a writing
signed by the owner before the filing of the notice. The Copyright
Office may specifically require in regulations other information to be
included in the notice, but failure to provide such other information
shall not invalidate the notice or be a basis for refusal to list the
restored work in the Federal Register.

(ii) If a work in which copyright is restored has no formal title, it
shall be described in the notice of intent in detail sufficient to identify it.

(iii) Minor errors or omissions may be corrected by further notice at
any time after the notice of intent is filed. Notices of corrections for
such minor errors or omissions shall be accepted after the period
established in subsection (d)(2)(A)(i). Notices shall be published in
the Federal Register pursuant to subparagraph (B).

(B)(i) The Register of Copyrights shall publish in the Federal Register,
commencing not later than 4 months after the date of restoration for a
particular nation and every 4 months thereafter for a period of 2 years,
lists identifying restored works and the ownership thereof if a notice
of intent to enforce a restored copyright has been filed.

(ii) Not less than 1 list containing all notices of intent to enforce
shall be maintained in the Public Information Office of the Copyright
Office and shall be available for public inspection and copying during
regular business hours pursuant to sections 705 and 708.

(C) The Register of Copyrights is authorized to fix reasonable fees
based on the costs of receipt, processing, recording, and publication of
notices of intent to enforce a restored copyright and corrections thereto.

(D)(i) Not later than 90 days before the date the Agreement on
Trade-Related Aspects of Intellectual Property referred to in section
101(d) (15) of the Uruguay Round Agreements Act enters into force with
respect to the United States, the Copyright Office shall issue and
publish in the Federal Register regulations governing the filing under
this subsection of notices of intent to enforce a restored copyright.

(ii) Such regulations shall permit owners of restored copyrights to file
simultaneously for registration of the restored copyright.

(2) Notices of Intent Served on a Reliance Party.-

(A) Notices of intent to enforce a restored copyright may be served on a
reliance party at any time after the date of restoration of the restored
copyright.

(B) Notices of intent to enforce a restored copyright served on a
reliance party shall be signed by the owner or the owner's agent, shall
identify the restored work and the work in which the restored work is
used, if any, in detail sufficient to identify them, and shall include
an English translation of the title, any other alternative titles known
to the owner by which the work may be identified, the use or uses to
which the owner objects, and an address and telephone number at which
the reliance party may contact the owner. If the notice is signed by an
agent, the agency relationship must have been constituted in writing and
signed by the owner before service of the notice.

(3) Effect of Material False Statements.  Any material false statement
knowingly made with respect to any restored copyright identified in any
notice of intent shall make void all claims and assertions made with
respect to such restored copyright.

(f) Immunity From Warranty and Related Liability.-

(1) In General.  Any person who warrants, promises, or guarantees that
a work does not violate an exclusive right granted in section 106 shall
not be liable for legal, equitable, arbitral, or administrative relief
if the warranty, promise, or guarantee is breached by virtue of the
restoration of copyright under this section, if such warranty, promise,
or guarantee is made before January 1, 1995.

(2) Performances.  No person shall be required to perform any act if
such performance is made infringing by virtue of the restoration of
copyright under the provisions of this section, if the obligation to
perform was undertaken before January 1, 1995.

(g) Proclamation of Copyright Restoration.  Whenever the President finds
that a particular foreign nation extends, to works by authors who are
nationals or domiciliaries of the United States, restored copyright
protection on substantially the same basis as provided under this
section, the President may by proclamation extend restored protection
provided under this section to any work

(1) of which one or more of the authors is, on the date of first
publication, a national, domiciliary, or sovereign authority of that nation; or

(2) which was first published in that nation.

The President may revise, suspend, or revoke any such proclamation or
impose any conditions or limitations on protection under such a
proclamation.

(h) Definitions.  For purposes of this section and section 109(a):

(1) The term "date of adherence or proclamation" means the earlier of
the date on which a foreign nation which, as of the date the WTO
Agreement enters into force with respect to the United States, is not a
nation adhering to the Berne Convention or a WTO member country, becomes-

(A) a nation adhering to the Berne Convention;

(B) a WTO member country;

(C) a nation adhering to the WIPO Copyright Treaty;  [30]

(D) a nation adhering to the WIPO Performances and Phonograms Treaty; [31]
or

(E) subject to a Presidential proclamation under subsection (g).

(2) The "date of restoration" of a restored copyright is-

(A) January 1, 1996, if the source country of the restored work is a
nation adhering to the Berne Convention or a WTO member country on such
date, or

(B) the date of adherence or proclamation, in the case of any other
source country of the restored work.

(3) The term "eligible country" means a nation, other than the United States, that

(A) becomes a WTO member country after the date of the enactment of the
Uruguay Round Agreements Act;

(B) on such date of enactment is, or after such date of enactment
becomes, a nation adhering to the Berne Convention;

(C) adheres to the WIPO Copyright Treaty;  [32]

(D) adheres to the WIPO Performances and Phonograms Treaty; [33] or

(E) after such date of enactment becomes subject to a proclamation under
subsection (g).

(4) The term "reliance party" means any person who-

(A) with respect to a particular work, engages in acts, before the
source country of that work becomes an eligible country, which would
have violated section 106 if the restored work had been subject to
copyright protection, and who, after the source country becomes an
eligible country, continues to engage in such acts;

(B) before the source country of a particular work becomes an eligible
country, makes or acquires 1 or more copies or phonorecords of that
work; or

(C) as the result of the sale or other disposition of a derivative work
covered under subsection (d)(3), or significant assets of a person
described in subparagraph (A) or (B), is a successor, assignee, or
licensee of that person.

(5) The term "restored copyright" means copyright in a restored work
under this section.

(6) The term "restored work" means an original work of authorship that-

(A) is protected under subsection (a);

(B) is not in the public domain in its source country through expiration
of term of protection;

(C) is in the public domain in the United States due to-

(i) noncompliance with formalities imposed at any time by United States
copyright law, including failure of renewal, lack of proper notice, or
failure to comply with any manufacturing requirements;

(ii) lack of subject matter protection in the case of sound recordings
fixed before February 15, 1972; or

(iii) lack of national eligibility;

(D) has at least one author or rightholder who was, at the time the work
was created, a national or domiciliary of an eligible country, and if
published, was first published in an eligible country and not published
in the United States during the 30-day period following publication in
such eligible country; and

(E) if the source country for the work is an eligible country solely by
virtue of its adherence to the WIPO Performances and Phonograms Treaty,
is a sound recording. [34]

(7) The term "rightholder" means the person-

(A) who, with respect to a sound recording, first fixes a sound
recording with authorization, or

(B) who has acquired rights from the person described in subparagraph
(A) by means of any conveyance or by operation of law.

(8) The "source country" of a restored work is-

(A) a nation other than the United States;

(B) in the case of an unpublished work-

(i) the eligible country in which the author or rightholder is a
national or domiciliary, or, if a restored work has more than 1 author
or rightholder, of which the majority of foreign authors or rightholders
are nationals or domiciliaries; or

(ii) if the majority of authors or rightholders are not foreign, the
nation other than the United States which has the most significant
contacts with the work; and

(C) in the case of a published work-

(i) the eligible country in which the work is first published, or

(ii) if the restored work is published on the same day in 2 or more
eligible countries, the eligible country which has the most significant
contacts with the work.


Section 105. Subject matter of copyright: United States Government works [35]

Copyright protection under this title is not available for any work of
the United States Government, but the United States Government is not
precluded from receiving and holding copyrights transferred to it by
assignment, bequest, or otherwise.


Section 106. Exclusive rights in copyrighted works [36]

Subject to sections 107 through 121, the owner of copyright under this
title has the exclusive rights to do and to authorize any of the following:

(1) to reproduce the copyrighted work in copies or phonorecords;

(2) to prepare derivative works based upon the copyrighted work;

(3) to distribute copies or phonorecords of the copyrighted work to the
public by sale or other transfer of ownership, or by rental, lease, or
lending;

(4) in the case of literary, musical, dramatic, and choreographic works,
pantomimes, and motion pictures and other audiovisual works, to perform
the copyrighted work publicly;

(5) in the case of literary, musical, dramatic, and choreographic works,
pantomimes, and pictorial, graphic, or sculptural works, including the
individual images of a motion picture or other audiovisual work, to
display the copyrighted work publicly; and

(6) in the case of sound recordings, to perform the copyrighted work
publicly by means of a digital audio transmission.


Section 106A. Rights of certain authors to attribution and integrity [37]

(a) Rights of Attribution and Integrity.   Subject to section 107 and
independent of the exclusive rights provided in section 106, the author
of a work of visual art

(1) shall have the right-

(A) to claim authorship of that work, and

(B) to prevent the use of his or her name as the author of any work of
visual art which he or she did not create;

(2) shall have the right to prevent the use of his or her name as the
author of the work of visual art in the event of a distortion,
mutilation, or other modification of the work which would be prejudicial
to his or her honor or reputation; and

(3) subject to the limitations set forth in section 113(d), shall have the right-

(A) to prevent any intentional distortion, mutilation, or other
modification of that work which would be prejudicial to his or her honor
or reputation, and any intentional distortion, mutilation, or
modification of that work is a violation of that right, and

(B) to prevent any destruction of a work of recognized stature, and any
intentional or grossly negligent destruction of that work is a violation
of that right.

(b) Scope and Exercise of Rights.  Only the author of a work of visual
art has the rights conferred by subsection (a) in that work, whether or
not the author is the copyright owner. The authors of a joint work of
visual art are coowners of the rights conferred by subsection (a) in
that work.

(c) Exceptions.-  (1) The modification of a work of visual art which is
the result of the passage of time or the inherent nature of the
materials is not a distortion, mutilation, or other modification
described in subsection (a)(3)(A).

(2) The modification of a work of visual art which is the result of
conservation, or of the public presentation, including lighting and
placement, of the work is not a destruction, distortion, mutilation, or
other modification described in subsection (a)(3) unless the
modification is caused by gross negligence.

(3) The rights described in paragraphs (1) and (2) of subsection (a)
shall not apply to any reproduction, depiction, portrayal, or other use
of a work in, upon, or in any connection with any item described in
subparagraph (A) or (B) of the definition of "work of visual art" in
section 101, and any such reproduction, depiction, portrayal, or other
use of a work is not a destruction, distortion, mutilation, or other
modification described in paragraph (3) of subsection (a).

(d) Duration of Rights.-  (1) With respect to works of visual art created
on or after the effective date set forth in section 610(a) of the Visual
Artists Rights Act of 1990, the rights conferred by subsection (a) shall
endure for a term consisting of the life of the author.

(2) With respect to works of visual art created before the effective
date set forth in section 610(a) of the Visual Artists Rights Act of
1990, but title to which has not, as of such effective date, been
transferred from the author, the rights conferred by subsection (a)
shall be coextensive with, and shall expire at the same time as, the
rights conferred by section 106.

(3) In the case of a joint work prepared by two or more authors, the
rights conferred by subsection (a) shall endure for a term consisting of
the life of the last surviving author.

(4) All terms of the rights conferred by subsection (a) run to the end
of the calendar year in which they would otherwise expire.

(e) Transfer and Waiver.-  (1) The rights conferred by subsection (a) may
not be transferred, but those rights may be waived if the author
expressly agrees to such waiver in a written instrument signed by the
author. Such instrument shall specifically identify the work, and uses
of that work, to which the waiver applies, and the waiver shall apply
only to the work and uses so identified. In the case of a joint work
prepared by two or more authors, a waiver of rights under this paragraph
made by one such author waives such rights for all such authors.

(2) Ownership of the rights conferred by subsection (a) with respect to
a work of visual art is distinct from ownership of any copy of that
work, or of a copyright or any exclusive right under a copyright in that
work. Transfer of ownership of any copy of a work of visual art, or of a
copyright or any exclusive right under a copyright, shall not constitute
a waiver of the rights conferred by subsection (a). Except as may
otherwise be agreed by the author in a written instrument signed by the
author, a waiver of the rights conferred by subsection (a) with respect
to a work of visual art shall not constitute a transfer of ownership of
any copy of that work, or of ownership of a copyright or of any
exclusive right under a copyright in that work.


Section 107. Limitations on exclusive rights: Fair use [38]

Notwithstanding the provisions of sections 106 and 106A, the fair use of
a copyrighted work, including such use by reproduction in copies or
phonorecords or by any other means specified by that section, for
purposes such as criticism, comment, news reporting, teaching (including
multiple copies for classroom use), scholarship, or research, is not an
infringement of copyright. In determining whether the use made of a work
in any particular case is a fair use the factors to be considered shall include-

(1) the purpose and character of the use, including whether such use is
of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the
copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the
copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of
fair use if such finding is made upon consideration of all the above factors.


Section 108. Limitations on exclusive rights: Reproduction by libraries
and archives [39]

(a) Except as otherwise provided in this title and notwithstanding the
provisions of section 106, it is not an infringement of copyright for a
library or archives, or any of its employees acting within the scope of
their employment, to reproduce no more than one copy or phonorecord of a
work, except as provided in subsections (b) and (c), or to distribute
such copy or phonorecord, under the conditions specified by this section, if-

(1) the reproduction or distribution is made without any purpose of
direct or indirect commercial advantage;

(2) the collections of the library or archives are (i) open to the
public, or (ii) available not only to researchers affiliated with the
library or archives or with the institution of which it is a part, but
also to other persons doing research in a specialized field; and

(3) the reproduction or distribution of the work includes a notice of
copyright that appears on the copy or phonorecord that is reproduced
under the provisions of this section, or includes a legend stating that
the work may be protected by copy-right if no such notice can be found
on the copy or phonorecord that is reproduced under the provisions of
this section.

(b) The rights of reproduction and distribution under this section apply
to three copies or phonorecords of an unpublished work duplicated solely
for purposes of preservation and security or for deposit for research
use in another library or archives of the type described by clause (2)
of subsection (a), if-

(1) the copy or phonorecord reproduced is currently in the collections
of the library or archives; and

(2) any such copy or phonorecord that is reproduced in digital format is
not otherwise distributed in that format and is not made available to
the public in that format outside the premises of the library or archives.

(c) The right of reproduction under this section applies to three copies
or phonorecords of a published work duplicated solely for the purpose of
replacement of a copy or phonorecord that is damaged, deteriorating,
lost, or stolen, or if the existing format in which the work is stored
has become obsolete, if-

(1) the library or archives has, after a reasonable effort, determined
that an unused replacement cannot be obtained at a fair price; and

(2) any such copy or phonorecord that is reproduced in digital format is
not made available to the public in that format outside the premises of
the library or archives in lawful possession of such copy.

For purposes of this subsection, a format shall be considered obsolete
if the machine or device necessary to render perceptible a work stored
in that format is no longer manufactured or is no longer reasonably
available in the commercial marketplace.

(d) The rights of reproduction and distribution under this section apply
to a copy, made from the collection of a library or archives where the
user makes his or her request or from that of another library or
archives, of no more than one article or other contribution to a
copyrighted collection or periodical issue, or to a copy or phonorecord
of a small part of any other copyrighted work, if-

(1) the copy or phonorecord becomes the property of the user, and the
library or archives has had no notice that the copy or phonorecord would
be used for any purpose other than private study, scholarship, or
research; and

(2) the library or archives displays prominently, at the place where
orders are accepted, and includes on its order form, a warning of
copyright in accordance with requirements that the Register of
Copyrights shall prescribe by regulation.

(e) The rights of reproduction and distribution under this section apply
to the entire work, or to a substantial part of it, made from the
collection of a library or archives where the user makes his or her
request or from that of another library or archives, if the library or
archives has first determined, on the basis of a reasonable
investigation, that a copy or phonorecord of the copyrighted work cannot
be obtained at a fair price, if-

(1) the copy or phonorecord becomes the property of the user, and the
library or archives has had no notice that the copy or phonorecord would
be used for any purpose other than private study, scholarship, or research; and

(2) the library or archives displays prominently, at the place where
orders are accepted, and includes on its order form, a warning of
copyright in accordance with requirements that the Register of
Copyrights shall prescribe by regulation.

(f) Nothing in this section-

(1) shall be construed to impose liability for copyright infringement
upon a library or archives or its employees for the unsupervised use of
reproducing equipment located on its premises: *Provided*, That such
equipment displays a notice that the making of a copy may be subject to
the copyright law;

(2) excuses a person who uses such reproducing equipment or who requests
a copy or phonorecord under subsection (d) from liability for copyright
infringement for any such act, or for any later use of such copy or
phonorecord, if it exceeds fair use as provided by section 107;

(3) shall be construed to limit the reproduction and distribution by
lending of a limited number of copies and excerpts by a library or
archives of an audiovisual news program, subject to clauses (1), (2),
and (3) of subsection (a); or

(4) in any way affects the right of fair use as provided by section 107,
or any contractual obligations assumed at any time by the library or
archives when it obtained a copy or phonorecord of a work in its collections.

(g) The rights of reproduction and distribution under this section
extend to the isolated and unrelated reproduction or distribution of a
single copy or phonorecord of the same material on separate occasions,
but do not extend to cases where the library or archives, or its employee-

(1) is aware or has substantial reason to believe that it is engaging in
the related or concerted reproduction or distribution of multiple copies
or phonorecords of the same material, whether made on one occasion or
over a period of time, and whether intended for aggregate use by one or
more individuals or for separate use by the individual members of a group; or

(2) engages in the systematic reproduction or distribution of single or
multiple copies or phonorecords of material described in subsection (d):
*Provided*, That nothing in this clause prevents a library or archives
from participating in interlibrary arrangements that do not have, as
their purpose or effect, that the library or archives receiving such
copies or phonorecords for distribution does so in such aggregate
quantities as to substitute for a subscription to or purchase of such work.

(h)(1) For purposes of this section, during the last 20 years of any
term of copyright of a published work, a library or archives, including
a nonprofit educational institution that functions as such, may
reproduce, distribute, display, or perform in facsimile or digital form
a copy or phonorecord of such work, or portions thereof, for purposes of
preservation, scholarship, or research, if such library or archives has
first determined, on the basis of a reasonable investigation, that none
of the conditions set forth in subparagraphs (A), (B), and (C) of
paragraph (2) apply.

(2) No reproduction, distribution, display, or performance is authorized
under this subsection if=

(A) the work is subject to normal commercial exploitation;

(B) a copy or phonorecord of the work can be obtained at a reasonable
price; or

(C) the copyright owner or its agent provides notice pursuant to
regulations promulgated by the Register of Copyrights that either of the
conditions set forth in subparagraphs (A) and (B) applies.

(3) The exemption provided in this subsection does not apply to any
subsequent uses by users other than such library or archives.

(i) The rights of reproduction and distribution under this section do
not apply to a musical work, a pictorial, graphic or sculptural work, or
a motion picture or other audiovisual work other than an audiovisual
work dealing with news, except that no such limitation shall apply with
respect to rights granted by subsections (b) and (c), or with respect to
pictorial or graphic works published as illustrations, diagrams, or
similar adjuncts to works of which copies are reproduced or distributed
in accordance with subsections (d) and (e).


Section 109. Limitations on exclusive rights: Effect of transfer of
particular copy or phonorecord [40]

(a) Notwithstanding the provisions of section 106(3), the owner of a
particular copy or phonorecord lawfully made under this title, or any
person authorized by such owner, is entitled, without the authority of
the copyright owner, to sell or otherwise dispose of the possession of
that copy or phonorecord. Notwithstanding the preceding sentence, copies
or phonorecords of works subject to restored copyright under section
104A that are manufactured before the date of restoration of copyright
or, with respect to reliance parties, before publication or service of
notice under section 104A(e), may be sold or otherwise disposed of
without the authorization of the owner of the restored copyright for
purposes of direct or indirect commercial advantage only during the
12-month period beginning on-

(1) the date of the publication in the Federal Register of the notice of
intent filed with the Copyright Office under section 104A(d)(2)(A), or

(2) the date of the receipt of actual notice served under section
104A(d)(2)(B), whichever occurs first.

(b)(1)(A) Notwithstanding the provisions of subsection (a), unless
authorized by the owners of copyright in the sound recording or the
owner of copyright in a computer program (including any tape, disk, or
other medium embodying such program), and in the case of a sound
recording in the musical works embodied therein, neither the owner of a
particular phonorecord nor any person in possession of a particular copy
of a computer program (including any tape, disk, or other medium
embodying such program), may, for the purposes of direct or indirect
commercial advantage, dispose of, or authorize the disposal of, the
possession of that phonorecord or computer program (including any tape,
disk, or other medium embodying such program) by rental, lease, or
lending, or by any other act or practice in the nature of rental, lease,
or lending. Nothing in the preceding sentence shall apply to the rental,
lease, or lending of a phonorecord for nonprofit purposes by a nonprofit
library or nonprofit educational institution. The transfer of possession
of a lawfully made copy of a computer program by a nonprofit educational
institution to another nonprofit educational institution or to faculty,
staff, and students does not constitute rental, lease, or lending for
direct or indirect commercial purposes under this subsection.

(B) This subsection does not apply to-

(i) a computer program which is embodied in a machine or product and
which cannot be copied during the ordinary operation or use of the
machine or product; or

(ii) a computer program embodied in or used in conjunction with a
limited purpose computer that is designed for playing video games and
may be designed for other purposes.

(C) Nothing in this subsection affects any provision of chapter 9 of this title.

(2)(A) Nothing in this subsection shall apply to the lending of a
computer program for nonprofit purposes by a nonprofit library, if each
copy of a computer program which is lent by such library has affixed to
the packaging containing the program a warning of copyright in
accordance with requirements that the Register of Copyrights shall
prescribe by regulation.

(B) Not later than three years after the date of the enactment of the
Computer Software Rental Amendments Act of 1990, and at such times
thereafter as the Register of Copyrights considers appropriate, the
Register of Copyrights, after consultation with representatives of
copyright owners and librarians, shall submit to the Congress a report
stating whether this paragraph has achieved its intended purpose of
maintaining the integrity of the copyright system while providing
nonprofit libraries the capability to fulfill their function. Such
report shall advise the Congress as to any information or
recommendations that the Register of Copyrights considers necessary to
carry out the purposes of this subsection.

(3) Nothing in this subsection shall affect any provision of the
antitrust laws. For purposes of the preceding sentence, "antitrust laws"
has the meaning given that term in the first section of the Clayton Act
and includes section 5 of the Federal Trade Commission Act to the extent
that section relates to unfair methods of competition.

(4) Any person who distributes a phonorecord or a copy of a computer
program (including any tape, disk, or other medium embodying such
program) in violation of paragraph (1) is an infringer of copyright
under section 501 of this title and is subject to the remedies set forth
in sections 502, 503, 504, 505, and 509. Such violation shall not be a
criminal offense under section 506 or cause such person to be subject to
the criminal penalties set forth in section 2319 of title 18.

(c) Notwithstanding the provisions of section 106(5), the owner of a
particular copy lawfully made under this title, or any person authorized
by such owner, is entitled, without the authority of the copyright
owner, to display that copy publicly, either directly or by the
projection of no more than one image at a time, to viewers present at
the place where the copy is located.

(d) The privileges prescribed by subsections (a) and (c) do not, unless
authorized by the copyright owner, extend to any person who has acquired
possession of the copy or phonorecord from the copyright owner, by
rental, lease, loan, or otherwise, without acquiring ownership of it.

(e) Notwithstanding the provisions of sections 106(4) and 106(5), in the
case of an electronic audiovisual game intended for use in coin-operated
equipment, the owner of a particular copy of such a game lawfully made
under this title, is entitled, without the authority of the copyright
owner of the game, to publicly perform or display that game in coin-
operated equipment, except that this subsection shall not apply to any
work of authorship embodied in the audiovisual game if the copyright
owner of the electronic audiovisual game is not also the copyright owner
of the work of authorship.


Section 110. Limitations on exclusive rights: Exemption of certain
performances and displays [41]

Notwithstanding the provisions of section 106, the following are not
infringements of copyright:

(1) performance or display of a work by instructors or pupils in the
course of face-to-face teaching activities of a nonprofit educational
institution, in a classroom or similar place devoted to instruction,
unless, in the case of a motion picture or other audiovisual work, the
performance, or the display of individual images, is given by means of a
copy that was not lawfully made under this title, and that the person
responsible for the performance knew or had reason to believe was not
lawfully made;

(2) performance of a nondramatic literary or musical work or display of
a work, by or in the course of a transmission, if-

(A) the performance or display is a regular part of the systematic
instructional activities of a governmental body or a nonprofit
educational institution; and

(B) the performance or display is directly related and of material
assistance to the teaching content of the transmission; and

(C) the transmission is made primarily for-

(i) reception in classrooms or similar places normally devoted to
instruction, or

(ii) reception by persons to whom the transmission is directed because
their disabilities or other special circumstances prevent their
attendance in classrooms or similar places normally devoted to
instruction, or

(iii) reception by officers or employees of governmental bodies as a
part of their official duties or employment;

(3) performance of a nondramatic literary or musical work or of a
dramatico-musical work of a religious nature, or display of a work, in
the course of services at a place of worship or other religious assembly;

(4) performance of a nondramatic literary or musical work otherwise than
in a transmission to the public, without any purpose of direct or
indirect commercial advantage and without payment of any fee or other
compensation for the performance to any of its performers, promoters, or
organizers, if-

(A) there is no direct or indirect admission charge; or

(B) the proceeds, after deducting the reasonable costs of producing the
performance, are used exclusively for educational, religious, or
charitable purposes and not for private financial gain, except where the
copyright owner has served notice of objection to the performance under
the following conditions;

(i) the notice shall be in writing and signed by the copyright owner or
such owner's duly authorized agent; and

(ii) the notice shall be served on the person responsible for the
performance at least seven days before the date of the performance, and
shall state the reasons for the objection; and

(iii) the notice shall comply, in form, content, and manner of service,
with requirements that the Register of Copyrights shall prescribe by regulation;

(5)(A) except as provided in subparagraph (B), communication of a
transmission embodying a performance or display of a work by the public
reception of the transmission on a single receiving apparatus of a kind
commonly used in private homes, unless-

(i) a direct charge is made to see or hear the transmission; or

(ii) the transmission thus received is further transmitted to the public;

(B) communication by an establishment of a transmission or
retransmission embodying a performance or display of a nondramatic
musical work intended to be received by the general public, originated
by a radio or television broadcast station licensed as such by the
Federal Communications Commission, or, if an audiovisual transmission,
by a cable system or satellite carrier, if-

(i) in the case of an establishment other than a food service or
drinking establishment, either the establishment in which the
communication occurs has less than 2,000 gross square feet of space
(excluding space used for customer parking and for no other purpose), or
the establishment in which the communication occurs has 2,000 or more
gross square feet of space (excluding space used for customer parking
and for no other purpose) and-

(I) if the performance is by audio means only, the performance is
communicated by means of a total of not more than 6 loudspeakers, of
which not more than 4 loudspeakers are located in any 1 room or
adjoining outdoor space; or

(II) if the performance or display is by audiovisual means, any visual
portion of the performance or display is communicated by means of a
total of not more than 4 audiovisual devices, of which not more than 1
audiovisual device is located in any 1 room, and no such audiovisual
device has a diagonal screen size greater than 55 inches, and any audio
portion of the performance or display is communicated by means of a
total of not more than 6 loudspeakers, of which not more than 4
loudspeakers are located in any 1 room or adjoining outdoor space;

(ii) in the case of a food service or drinking establishment, either the
establishment in which the communication occurs has less than 3,750
gross square feet of space (excluding space used for customer parking
and for no other purpose), or the establishment in which the
communication occurs has 3,750 gross square feet of space or more
(excluding space used for customer parking and for no other purpose)
and

(I) if the performance is by audio means only, the performance is
communicated by means of a total of not more than 6 loudspeakers, of
which not more than 4 loudspeakers are located in any 1 room or
adjoining outdoor space; or

(II) if the performance or display is by audiovisual means, any visual
portion of the performance or display is communicated by means of a
total of not more than 4 audiovisual devices, of which not more than 1
audiovisual device is located in any 1 room, and no such audiovisual
device has a diagonal screen size greater than 55 inches, and any audio
portion of the performance or display is communicated by means of a
total of not more than 6 loudspeakers, of which not more than 4
loudspeakers are located in any 1 room or adjoining outdoor space;

(iii) no direct charge is made to see or hear the transmission or
retransmission;

(iv) the transmission or retransmission is not further transmitted
beyond the establishment where it is received; and

(v) the transmission or retransmission is licensed by the copyright
owner of the work so publicly performed or displayed;

(6) performance of a nondramatic musical work by a governmental body or
a nonprofit agricultural or horticultural organization, in the course of
an annual agricultural or horticultural fair or exhibition conducted by
such body or organization; the exemption provided by this clause shall
extend to any liability for copyright infringement that would otherwise
be imposed on such body or organization, under doctrines of vicarious
liability or related infringement, for a performance by a
concessionnaire, business establishment, or other person at such fair or
exhibition, but shall not excuse any such person from liability for the performance;

(7) performance of a nondramatic musical work by a vending establishment
open to the public at large without any direct or indirect admission
charge, where the sole purpose of the performance is to promote the
retail sale of copies or phonorecords of the work, or of the audiovisual
or other devices utilized in such performance, and the performance is
not transmitted beyond the place where the establishment is located and
is within the immediate area where the sale is occurring;

(8) performance of a nondramatic literary work, by or in the course of a
transmission specifically designed for and primarily directed to blind
or other handicapped persons who are unable to read normal printed
material as a result of their handicap, or deaf or other handicapped
persons who are unable to hear the aural signals accompanying a
transmission of visual signals, if the performance is made without any
purpose of direct or indirect commercial advantage and its transmission
is made through the facilities of: (i) a governmental body; or (ii) a
noncommercial educational broadcast station (as defined in section 397
of title 47); or (iii) a radio subcarrier authorization (as defined in
47 CFR 73.293-73.295 and 73.593-73.595); or (iv) a cable system (as
defined in section 111 (f));

(9) performance on a single occasion of a dramatic literary work
published at least ten years before the date of the performance, by or
in the course of a transmission specifically designed for and primarily
directed to blind or other handicapped persons who are unable to read
normal printed material as a result of their handicap, if the
performance is made without any purpose of direct or indirect commercial
advantage and its transmission is made through the facilities of a radio
subcarrier authorization referred to in clause (8) (iii), *Provided*,
That the provisions of this clause shall not be applicable to more than
one performance of the same work by the same performers or under the
auspices of the same organization; and

(10) notwithstanding paragraph (4), the following is not an infringement
of copyright: performance of a nondramatic literary or musical work in
the course of a social function which is organized and promoted by a
nonprofit veterans' organization or a nonprofit fraternal organization
to which the general public is not invited, but not including the
invitees of the organizations, if the proceeds from the performance,
after deducting the reasonable costs of producing the performance, are
used exclusively for charitable purposes and not for financial gain. For
purposes of this section the social functions of any college or
university fraternity or sorority shall not be included unless the
social function is held solely to raise funds for a specific charitable purpose.

The exemptions provided under paragraph (5) shall not be taken into
account in any administrative, judicial, or other governmental
proceeding to set or adjust the royalties payable to copyright owners
for the public performance or display of their works. Royalties payable
to copyright owners for any public performance or display of their works
other than such performances or displays as are exempted under paragraph
(5) shall not be diminished in any respect as a result of such exemption.


Section 111. Limitations on exclusive rights: Secondary transmissions [42]

(a) Certain Secondary Transmissions Exempted.  The secondary transmission
of a performance or display of a work embodied in a primary transmission
is not an infringement of copyright if-

(1) the secondary transmission is not made by a cable system, and
consists entirely of the relaying, by the management of a hotel,
apartment house, or similar establishment, of signals transmitted by a
broadcast station licensed by the Federal Communications Commission,
within the local service area of such station, to the private lodgings
of guests or residents of such establishment, and no direct charge is
made to see or hear the secondary transmission; or

(2) the secondary transmission is made solely for the purpose and under
the conditions specified by clause (2) of section 110; or

(3) the secondary transmission is made by any carrier who has no direct
or indirect control over the content or selection of the primary
transmission or over the particular recipients of the secondary
transmission, and whose activities with respect to the secondary
transmission consist solely of providing wires, cables, or other
communications channels for the use of others: *Provided*, That the
provisions of this clause extend only to the activities of said carrier
with respect to secondary transmissions and do not exempt from liability
the activities of others with respect to their own primary or secondary
transmissions;

(4) the secondary transmission is made by a satellite carrier for
private home viewing pursuant to a statutory license under section 119;
or

(5) the secondary transmission is not made by a cable system but is made
by a governmental body, or other nonprofit organization, without any
purpose of direct or indirect commercial advantage, and without charge
to the recipients of the secondary transmission other than assessments
necessary to defray the actual and reasonable costs of maintaining and
operating the secondary transmission service.

(b) Secondary Transmission of Primary Transmission to Controlled Group.
Notwithstanding the provisions of subsections (a) and (c), the secondary
transmission to the public of a performance or display of a work
embodied in a primary transmission is actionable as an act of
infringement under section 501, and is fully subject to the remedies
provided by sections 502 through 506 and 509, if the primary
transmission is not made for reception by the public at large but is
controlled and limited to reception by particular members of the public:
*Provided*, however, That such secondary transmission is not actionable
as an act of infringement if-

(1) the primary transmission is made by a broadcast station licensed by
the Federal Communications Commission; and

(2) the carriage of the signals comprising the secondary transmission is
required under the rules, regulations, or authorizations of the Federal
Communications Commission; and

(3) the signal of the primary transmitter is not altered or changed in
any way by the secondary transmitter.

(c) Secondary Transmissions by Cable Systems.-

(1) Subject to the provisions of clauses (2), (3), and (4) of this
subsection and section 114(d), secondary transmissions to the public by
a cable system of a performance or display of a work embodied in a
primary transmission made by a broadcast station licensed by the Federal
Communications Commission or by an appropriate governmental authority of
Canada or Mexico shall be subject to statutory licensing upon compliance
with the requirements of subsection (d) where the carriage of the
signals comprising the secondary transmission is permissible under the
rules, regulations, or authorizations of the Federal Communications
Commission.

(2) Notwithstanding the provisions of clause (1) of this subsection, the
willful or repeated secondary transmission to the public by a cable
system of a primary transmission made by a broadcast station licensed by
the Federal Communications Commission or by an appropriate governmental
authority of Canada or Mexico and embodying a performance or display of
a work is actionable as an act of infringement under section 501, and is
fully subject to the remedies provided by sections 502 through 506 and
509, in the following cases:

(A) where the carriage of the signals comprising the secondary
transmission is not permissible under the rules, regulations, or
authorizations of the Federal Communications Commission; or

(B) where the cable system has not deposited the statement of account
and royalty fee required by subsection (d).

(3) Notwithstanding the provisions of clause (1) of this subsection and
subject to the provisions of subsection (e) of this section, the
secondary transmission to the public by a cable system of a performance
or display of a work embodied in a primary transmission made by a
broadcast station licensed by the Federal Communications Commission or
by an appropriate governmental authority of Canada or Mexico is
actionable as an act of infringement under section 501, and is fully
subject to the remedies provided by sections 502 through 506 and
sections 509 and 510, if the content of the particular program in which
the performance or display is embodied, or any commercial advertising or
station announcements transmitted by the primary transmitter during, or
immediately before or after, the transmission of such program, is in any
way willfully altered by the cable system through changes, deletions, or
additions, except for the alteration, deletion, or substitution of
commercial advertisements performed by those engaged in television
commercial advertising market research: *Provided*, That the research
company has obtained the prior consent of the advertiser who has
purchased the original commercial advertisement, the television station
broadcasting that commercial advertisement, and the cable system
performing the secondary transmission: *And provided further*, That such
commercial alteration, deletion, or substitution is not performed for
the purpose of deriving income from the sale of that commercial time.

(4) Notwithstanding the provisions of clause (1) of this subsection, the
secondary transmission to the public by a cable system of a performance
or display of a work embodied in a primary transmission made by a
broadcast station licensed by an appropriate governmental authority of
Canada or Mexico is actionable as an act of infringement under section
501, and is fully subject to the remedies provided by sections 502
through 506 and section 509, if (A) with respect to Canadian signals,
the community of the cable system is located more than 150 miles from
the United States-Canadian border and is also located south of the
forty-second parallel of latitude, or (B) with respect to Mexican
signals, the secondary transmission is made by a cable system which
received the primary transmission by means other than direct
interception of a free space radio wave emitted by such broadcast
television station, unless prior to April 15, 1976, such cable system
was actually carrying, or was specifically authorized to carry, the
signal of such foreign station on the system pursuant to the rules,
regulations, or authorizations of the Federal Communications Commission.

(d) Statutory License for Secondary Transmissions by Cable Systems. [43]

(1) A cable system whose secondary transmissions have been subject to
statutory licensing under subsection (c) shall, on a semiannual basis,
deposit with the Register of Copyrights, in accordance with requirements
that the Register shall prescribe by regulation-

(A) a statement of account, covering the six months next preceding,
specifying the number of channels on which the cable system made
secondary transmissions to its subscribers, the names and locations of
all primary transmitters whose transmissions were further transmitted by
the cable system, the total number of subscribers, the gross amounts
paid to the cable system for the basic service of providing secondary
transmissions of primary broadcast transmitters, and such other data as
the Register of Copyrights may from time to time prescribe by
regulation. In determining the total number of subscribers and the gross
amounts paid to the cable system for the basic service of providing
secondary transmissions of primary broadcast transmitters, the cable
system shall not include subscribers and amounts collected from
subscribers receiving secondary transmissions for private home viewing
pursuant to section 119. Such statement shall also include a special
statement of account covering any nonnetwork television programming that
was carried by the cable system in whole or in part beyond the local
service area of the primary transmitter, under rules, regulations, or
authorizations of the Federal Communications Commission permitting the
substitution or addition of signals under certain circumstances,
together with logs showing the times, dates, stations, and programs
involved in such substituted or added carriage; and

(B) except in the case of a cable system whose royalty is specified in
subclause (C) or (D), a total royalty fee for the period covered by the
statement, computed on the basis of specified percentages of the gross
receipts from subscribers to the cable service during said period for
the basic service of providing secondary transmissions of primary
broadcast transmitters, as follows:

(i) 0.675 of 1 per centum of such gross receipts for the privilege of
further transmitting any nonnetwork programming of a primary transmitter
in whole or in part beyond the local service area of such primary
transmitter, such amount to be applied against the fee, if any, payable
pursuant to paragraphs (ii) through (iv);

(ii) 0.675 of 1 per centum of such gross receipts for the first distant
signal equivalent;

(iii) 0.425 of 1 per centum of such gross receipts for each of the
second, third, and fourth distant signal equivalents;

(iv) 0.2 of 1 per centum of such gross receipts for the fifth distant
signal equivalent and each additional distant signal equivalent
thereafter; and

in computing the amounts payable under paragraph (ii) through (iv),
above, any fraction of a distant signal equivalent shall be computed at
its fractional value and, in the case of any cable system located partly
within and partly without the local service area of a primary
transmitter, gross receipts shall be limited to those gross receipts
derived from subscribers located without the local service area of such
primary transmitter; and

(C) if the actual gross receipts paid by subscribers to a cable system
for the period covered by the statement for the basic service of
providing secondary transmissions of primary broadcast transmitters
total $80,000 or less, gross receipts of the cable system for the
purpose of this subclause shall be computed by subtracting from such
actual gross receipts the amount by which $80,000 exceeds such actual
gross receipts, except that in no case shall a cable system's gross
receipts be reduced to less than $3,000. The royalty fee payable under
this subclause shall be 0.5 of 1 per centum, regardless of the number of
distant signal equivalents, if any; and

(D) if the actual gross receipts paid by subscribers to a cable system
for the period covered by the statement, for the basic service of
providing secondary transmissions of primary broadcast transmitters, are
more than $80,000 but less than $160,000, the royalty fee payable under
this subclause shall be

(i) 0.5 of 1 per centum of any gross receipts up to $80,000; and

(ii) 1 per centum of any gross receipts in excess of $80,000 but less
than $160,000, regardless of the number of distant signal equivalents, if any.

(2) The Register of Copyrights shall receive all fees deposited under
this section and, after deducting the reasonable costs incurred by the
Copyright Office under this section, shall deposit the balance in the
Treasury of the United States, in such manner as the Secretary of the
Treasury directs. All funds held by the Secretary of the Treasury shall
be invested in interest-bearing United States securities for later
distribution with interest by the Librarian of Congress in the event no
controversy over distribution exists, or by a copyright arbitration
royalty panel in the event a controversy over such distribution exists.

(3) The royalty fees thus deposited shall, in accordance with the
procedures provided by clause (4), be distributed to those among the
following copyright owners who claim that their works were the subject
of secondary transmissions by cable systems during the relevant
semiannual period:

(A) any such owner whose work was included in a secondary transmission
made by a cable system of a nonnetwork television program in whole or in
part beyond the local service area of the primary transmitter; and

(B) any such owner whose work was included in a secondary transmission
identified in a special statement of account deposited under clause (1)
(A); and

(C) any such owner whose work was included in nonnetwork programming
consisting exclusively of aural signals carried by a cable system in
whole or in part beyond the local service area of the primary
transmitter of such programs.

(4) The royalty fees thus deposited shall be distributed in accordance
with the following procedures:

(A) During the month of July in each year, every person claiming to be
entitled to statutory license fees for secondary transmissions shall
file a claim with the Librarian of Congress, in accordance with
requirements that the Librarian of Congress shall prescribe by
regulation. Notwithstanding any provisions of the antitrust laws, for
purposes of this clause any claimants may agree among themselves as to
the proportionate division of statutory licensing fees among them, may
lump their claims together and file them jointly or as a single claim,
or may designate a common agent to receive payment on their behalf.

(B) After the first day of August of each year, the Librarian of
Congress shall, upon the recommendation of the Register of Copyrights,
determine whether there exists a controversy concerning the distribution
of royalty fees. If the Librarian determines that no such controversy
exists, the Librarian shall, after deducting reasonable administrative
costs under this section, distribute such fees to the copyright owners
entitled to such fees, or to their designated agents. If the Librarian
finds the existence of a controversy, the Librarian shall, pursuant to
chapter 8 of this title, convene a copyright arbitration royalty panel
to determine the distribution of royalty fees.

(C) During the pendency of any proceeding under this subsection, the
Librarian of Congress shall withhold from distribution an amount
sufficient to satisfy all claims with respect to which a controversy
exists, but shall have discretion to proceed to distribute any amounts
that are not in controversy.

(e) Nonsimultaneous Secondary Transmissions by Cable Systems.-

(1) Notwithstanding those provisions of the second paragraph of
subsection (f) relating to nonsimultaneous secondary transmissions by a
cable system, any such transmissions are actionable as an act of
infringement under section 501, and are fully subject to the remedies
provided by sections 502 through 506 and sections 509 and 510, unless

(A) the program on the videotape is transmitted no more than one time to
the cable system's subscribers; and

(B) the copyrighted program, episode, or motion picture videotape,
including the commercials contained within such program, episode, or
picture, is transmitted without deletion or editing; and

(C) an owner or officer of the cable system

(i) prevents the duplication of the videotape while in the possession of the system,

(ii) prevents unauthorized duplication while in the possession of the
facility making the videotape for the system if the system owns or
controls the facility, or takes reasonable precautions to prevent such
duplication if it does not own or control the facility,

(iii) takes adequate precautions to prevent duplication while the tape
is being transported, and

(iv) subject to clause (2), erases or destroys, or causes the erasure or
destruction of, the videotape; and

(D) within forty-five days after the end of each calendar quarter, an
owner or officer of the cable system executes an affidavit attesting

(i) to the steps and precautions taken to prevent duplication of the
videotape, and

(ii) subject to clause (2), to the erasure or destruction of all
videotapes made or used during such quarter; and

(E) such owner or officer places or causes each such affidavit, and
affidavits received pursuant to clause (2) (C), to be placed in a file,
open to public inspection, at such system's main office in the community
where the transmission is made or in the nearest community where such
system maintains an office; and

(F) the nonsimultaneous transmission is one that the cable system would
be authorized to transmit under the rules, regulations, and
authorizations of the Federal Communications Commission in effect at the
time of the nonsimultaneous transmission if the transmission had been
made simultaneously, except that this subclause shall not apply to
inadvertent or accidental transmissions.

(2) If a cable system transfers to any person a videotape of a program
nonsimultaneously transmitted by it, such transfer is actionable as an
act of infringement under section 501, and is fully subject to the
remedies provided by sections 502 through 506 and 509, except that,
pursuant to a written, nonprofit contract providing for the equitable
sharing of the costs of such videotape and its transfer, a videotape
nonsimultaneously transmitted by it, in accordance with clause (1), may
be transferred by one cable system in Alaska to another system in
Alaska, by one cable system in Hawaii permitted to make such
nonsimultaneous transmissions to another such cable system in Hawaii, or
by one cable system in Guam, the Northern Mariana Islands, or the Trust
Territory of the Pacific Islands, to another cable system in any of
those three territories, if-

(A) each such contract is available for public inspection in the offices
of the cable systems involved, and a copy of such contract is filed,
within thirty days after such contract is entered into, with the
Copyright Office (which Office shall make each such contract available
for public inspection); and

(B) the cable system to which the videotape is transferred complies with
clause (1) (A), (B), (C) (i), (iii), and (iv), and (D) through (F); and

(C) such system provides a copy of the affidavit required to be made in
accordance with clause (1) (D) to each cable system making a previous
nonsimultaneous transmission of the same videotape.

(3) This subsection shall not be construed to supersede the exclusivity
protection provisions of any existing agreement, or any such agreement
hereafter entered into, between a cable system and a television
broadcast station in the area in which the cable system is located, or a
network with which such station is affiliated.

(4) As used in this subsection, the term "videotape", and each of its
variant forms, means the reproduction of the images and sounds of a
program or programs broadcast by a television broadcast station licensed
by the Federal Communications Commission, regardless of the nature of
the material objects, such as tapes or films, in which the reproduction
is embodied.

(f) Definitions.  As used in this section, the following terms and their
variant forms mean the following:

A "primary transmission" is a transmission made to the public by the
transmitting facility whose signals are being received and further
transmitted by the secondary transmission service, regardless of where
or when the performance or display was first transmitted.

A "secondary transmission" is the further transmitting of a primary
transmission simultaneously with the primary transmission, or
nonsimultaneously with the primary transmission if by a "cable system"
not located in whole or in part within the boundary of the forty-eight
contiguous States, Hawaii, or Puerto Rico: *Provided, however*, That a
nonsimultaneous further transmission by a cable system located in Hawaii
of a primary transmission shall be deemed to be a secondary transmission
if the carriage of the television broadcast signal comprising such
further transmission is permissible under the rules, regulations, or
authorizations of the Federal Communications Commission.

A "cable system" is a facility, located in any State, Territory, Trust
Territory, or Possession, that in whole or in part receives signals
transmitted or programs broadcast by one or more television broadcast
stations licensed by the Federal Communications Commission, and makes
secondary transmissions of such signals or programs by wires, cables,
microwave, or other communications channels to subscribing members of
the public who pay for such service. For purposes of determining the
royalty fee under subsection (d)(1), two or more cable systems in
contiguous communities under common ownership or control or operating
from one headend shall be considered as one system.

The "local service area of a primary transmitter", in the case of a
television broadcast station, comprises the area in which such station
is entitled to insist upon its signal being retransmitted by a cable
system pursuant to the rules, regulations, and authorizations of the
Federal Communications Commission in effect on April 15, 1976, or such
station's television market as defined in section 76.55(e) of title 47,
Code of Federal Regulations (as in effect on September 18, 1993), or any
modifications to such television market made, on or after September 18,
1993, pursuant to section 76.55(e) or 76.59 of title 47 of the Code of
Federal Regulations, or in the case of a television broadcast station
licensed by an appropriate governmental authority of Canada or Mexico,
the area in which it would be entitled to insist upon its signal being
retransmitted if it were a television broadcast station subject to such
rules, regulations, and authorizations. In the case of a low power
television station, as defined by the rules and regulations of the
Federal Communications Commission, the "local service area of a primary
transmitter" comprises the area within 35 miles of the transmitter site,
except that in the case of such a station located in a standard
metropolitan statistical area which has one of the 50 largest
populations of all standard metropolitan statistical areas (based on the
1980 decennial census of population taken by the Secretary of Commerce),
the number of miles shall be 20 miles. The "local service area of a
primary transmitter", in the case of a radio broadcast station,
comprises the primary service area of such station, pursuant to the
rules and regulations of the Federal Communications Commission.

A "distant signal equivalent" is the value assigned to the secondary
transmission of any nonnetwork television programming carried by a cable
system in whole or in part beyond the local service area of the primary
transmitter of such programming. It is computed by assigning a value of
one to each independent station and a value of one-quarter to each
network station and noncommercial educational station for the nonnetwork
programming so carried pursuant to the rules, regulations, and
authorizations of the Federal Communications Commission. The foregoing
values for independent, network, and noncommercial educational stations
are subject, however, to the following exceptions and limitations. Where
the rules and regulations of the Federal Communications Commission
require a cable system to omit the further transmission of a particular
program and such rules and regulations also permit the substitution of
another program embodying a performance or display of a work in place of
the omitted transmission, or where such rules and regulations in effect
on the date of enactment of this Act permit a cable system, at its
election, to effect such deletion and substitution of a nonlive program
or to carry additional programs not transmitted by primary transmitters
within whose local service area the cable system is located, no value
shall be assigned for the substituted or additional program; where the
rules, regulations, or authorizations of the Federal Communications
Commission in effect on the date of enactment of this Act permit a cable
system, at its election, to omit the further transmission of a
particular program and such rules, regulations, or authorizations also
permit the substitution of another program embodying a performance or
display of a work in place of the omitted transmission, the value
assigned for the substituted or additional program shall be, in the case
of a live program, the value of one full distant signal equivalent
multiplied by a fraction that has as its numerator the number of days in
the year in which such substitution occurs and as its denominator the
number of days in the year. In the case of a station carried pursuant to
the late-night or specialty programming rules of the Federal
Communications Commission, or a station carried on a part-time basis
where full-time carriage is not possible because the cable system lacks
the activated channel capacity to retransmit on a full-time basis all
signals which it is authorized to carry, the values for independent,
network, and noncommercial educational stations set forth above, as the
case may be, shall be multiplied by a fraction which is equal to the
ratio of the broadcast hours of such station carried by the cable system
to the total broadcast hours of the station.

A "network station" is a television broadcast station that is owned or
operated by, or affiliated with, one or more of the television networks
in the United States providing nationwide transmissions, and that
transmits a substantial part of the programming supplied by such
networks for a substantial part of that station's typical broadcast day.

An "independent station" is a commercial television broadcast station
other than a network station.

A "noncommercial educational station" is a television station that is a
noncommercial educational broadcast station as defined in section 397 of title 47.


Section 112. Limitations on exclusive rights: Ephemeral recordings [44]

(a)(1) Notwithstanding the provisions of section 106, and except in the
case of a motion picture or other audiovisual work, it is not an
infringement of copyright for a transmitting organization entitled to
transmit to the public a performance or display of a work, under a
license, including a statutory license under section 114(f), or transfer
of the copyright or under the limitations on exclusive rights in sound
recordings specified by section 114 (a) or for a transmitting
organization that is a broadcast radio or television station licensed as
such by the Federal Communications Commission and that makes a broadcast
transmission of a performance of a sound recording in a digital format
on a nonsubscription basis, to make no more than one copy or phonorecord
of a particular transmission program embodying the performance or display, if-

(A) the copy or phonorecord is retained and used solely by the
transmitting organization that made it, and no further copies or
phonorecords are reproduced from it; and

(B) the copy or phonorecord is used solely for the transmitting
organization's own transmissions within its local service area, or for
purposes of archival preservation or security; and

(C) unless preserved exclusively for archival purposes, the copy or
phonorecord is destroyed within six months from the date the
transmission program was first transmitted to the public.

(2) In a case in which a transmitting organization entitled to make a
copy or phonorecord under paragraph (1) in connection with the
transmission to the public of a performance or display of a work is
prevented from making such copy or phonorecord by reason of the
application by the copyright owner of technical measures that prevent
the reproduction of the work, the copyright owner shall make available
to the transmitting organization the necessary means for permitting the
making of such copy or phonorecord as permitted under that paragraph, if
it is technologically feasible and economically reasonable for the
copyright owner to do so. If the copyright owner fails to do so in a
timely manner in light of the transmitting organization's reasonable
business requirements, the transmitting organization shall not be liable
for a violation of section 1201(a)(1) of this title for engaging in such
activities as are necessary to make such copies or phonorecords as
permitted under paragraph (1) of this subsection.

(b) Notwithstanding the provisions of section 106, it is not an
infringement of copyright for a governmental body or other nonprofit
organization entitled to transmit a performance or display of a work,
under section 110(2) or under the limitations on exclusive rights in
sound recordings specified by section 114(a), to make no more than
thirty copies or phonorecords of a particular transmission program
embodying the performance or display, if

(1) no further copies or phonorecords are reproduced from the copies or
phonorecords made under this clause; and

(2) except for one copy or phonorecord that may be preserved exclusively
for archival purposes, the copies or phonorecords are destroyed within
seven years from the date the transmission program was first transmitted
to the public.

(c) Notwithstanding the provisions of section 106, it is not an
infringement of copyright for a governmental body or other nonprofit
organization to make for distribution no more than one copy or
phonorecord, for each transmitting organization specified in clause (2)
of this subsection, of a particular transmission program embodying a
performance of a nondramatic musical work of a religious nature, or of a
sound recording of such a musical work, if-

(1) there is no direct or indirect charge for making or distributing any
such copies or phonorecords; and

(2) none of such copies or phonorecords is used for any performance
other than a single transmission to the public by a transmitting
organization entitled to transmit to the public a performance of the
work under a license or transfer of the copyright; and

(3) except for one copy or phonorecord that may be preserved exclusively
for archival purposes, the copies or phonorecords are all destroyed
within one year from the date the transmission program was first
transmitted to the public.

(d) Notwithstanding the provisions of section 106, it is not an
infringement of copyright for a governmental body or other nonprofit
organization entitled to transmit a performance of a work under section
110(8) to make no more than ten copies or phonorecords embodying the
performance, or to permit the use of any such copy or phonorecord by any
governmental body or nonprofit organization entitled to transmit a
performance of a work under section 110(8), if-

(1) any such copy or phonorecord is retained and used solely by the
organization that made it, or by a governmental body or nonprofit
organization entitled to transmit a performance of a work under section
110(8), and no further copies or phonorecords are reproduced from it; and

(2) any such copy or phonorecord is used solely for transmissions
authorized under section 110(8), or for purposes of archival
preservation or security; and

(3) the governmental body or nonprofit organization permitting any use
of any such copy or phonorecord by any governmental body or nonprofit
organization under this subsection does not make any charge for such use.

(e) Statutory License.  (1) A transmitting organization entitled to
transmit to the public a performance of a sound recording under the
limitation on exclusive rights specified by section 114(d)(1)(C)(iv) or
under a statutory license in accordance with section 114(f) is entitled
to a statutory license, under the conditions specified by this
subsection, to make no more than 1 phonorecord of the sound recording
(unless the terms and conditions of the statutory license allow for
more), if the following conditions are satisfied:

(A) The phonorecord is retained and used solely by the transmitting
organization that made it, and no further phonorecords are reproduced from it.

(B) The phonorecord is used solely for the transmitting organization's
own transmissions originating in the United States under a statutory
license in accordance with section 114(f) or the limitation on exclusive
rights specified by section 114(d)(1)(C)(iv).

(C) Unless preserved exclusively for purposes of archival preservation,
the phonorecord is destroyed within 6 months from the date the sound
recording was first transmitted to the public using the phonorecord.

(D) Phonorecords of the sound recording have been distributed to the
public under the authority of the copyright owner or the copyright owner
authorizes the transmitting entity to transmit the sound recording, and
the transmitting entity makes the phonorecord under this subsection from
a phonorecord lawfully made and acquired under the authority of the
copyright owner.

(2) Notwithstanding any provision of the antitrust laws, any copyright
owners of sound recordings and any transmitting organizations entitled
to a statutory license under this subsection may negotiate and agree
upon royalty rates and license terms and conditions for making
phonorecords of such sound recordings under this section and the
proportionate division of fees paid among copyright owners, and may
designate common agents to negotiate, agree to, pay, or receive such
royalty payments.

(3) No later than 30 days after the date of the enactment of the Digital
Millennium Copyright Act, the Librarian of Congress shall cause notice
to be published in the Federal Register of the initiation of voluntary
negotiation proceedings for the purpose of determining reasonable terms
and rates of royalty payments for the activities specified by paragraph
(1) of this subsection during the period beginning on the date of the
enactment of such Act and ending on December 31, 2000, or such other
date as the parties may agree. Such rates shall include a minimum fee
for each type of service offered by transmitting organizations. Any
copyright owners of sound recordings or any transmitting organizations
entitled to a statutory license under this subsection may submit to the
Librarian of Congress licenses covering such activities with respect to
such sound recordings. The parties to each negotiation proceeding shall
bear their own costs.

(4) In the absence of license agreements negotiated under paragraph (2),
during the 60-day period commencing 6 months after publication of the
notice specified in paragraph (3), and upon the filing of a petition in
accordance with section 803(a)(1), the Librarian of Congress shall,
pursuant to chapter 8, convene a copyright arbitration royalty panel to
determine and publish in the Federal Register a schedule of reasonable
rates and terms which, subject to paragraph (5), shall be binding on all
copyright owners of sound recordings and transmitting organizations
entitled to a statutory license under this subsection during the period
beginning on the date of the enactment of the Digital Millennium
Copyright Act and ending on December 31, 2000, or such other date as the
parties may agree. Such rates shall include a minimum fee for each type
of service offered by transmitting organizations. The copyright
arbitration royalty panel shall establish rates that most clearly
represent the fees that would have been negotiated in the marketplace
between a willing buyer and a willing seller. In determining such rates
and terms, the copyright arbitration royalty panel shall base its
decision on economic, competitive, and programming information presented
by the parties, including-

(A) whether use of the service may substitute for or may promote the
sales of phonorecords or otherwise interferes with or enhances the
copyright owner's traditional streams of revenue; and

(B) the relative roles of the copyright owner and the transmitting
organization in the copyrighted work and the service made available to
the public with respect to relative creative contribution, technological
contribution, capital investment, cost, and risk.

In establishing such rates and terms, the copyright arbitration royalty
panel may consider the rates and terms under voluntary license
agreements negotiated as provided in paragraphs (2) and (3). The
Librarian of Congress shall also establish requirements by which
copyright owners may receive reasonable notice of the use of their sound
recordings under this section, and under which records of such use shall
be kept and made available by transmitting organizations entitled to
obtain a statutory license under this subsection.

(5) License agreements voluntarily negotiated at any time between 1 or
more copyright owners of sound recordings and 1 or more transmitting
organizations entitled to obtain a statutory license under this
subsection shall be given effect in lieu of any determination by a
copyright arbitration royalty panel or decision by the Librarian of Congress.

(6) Publication of a notice of the initiation of voluntary negotiation
proceedings as specified in paragraph (3) shall be repeated, in
accordance with regulations that the Librarian of Congress shall
prescribe, in the first week of January 2000, and at 2-year intervals
thereafter, except to the extent that different years for the repeating
of such proceedings may be determined in accordance with paragraph (3).
The procedures specified in paragraph (4) shall be repeated, in
accordance with regulations that the Librarian of Congress shall
prescribe, upon filing of a petition in accordance with section 803(a)
(1), during a 60-day period commencing on July 1, 2000, and at 2-year
intervals thereafter, except to the extent that different years for the
repeating of such proceedings may be determined in accordance with
paragraph (3). The procedures specified in paragraph (4) shall be
concluded in accordance with section 802.

(7)(A) Any person who wishes to make a phonorecord of a sound recording
under a statutory license in accordance with this subsection may do so
without infringing the exclusive right of the copyright owner of the
sound recording under section 106(1)

(i) by complying with such notice requirements as the Librarian of
Congress shall prescribe by regulation and by paying royalty fees in
accordance with this subsection; or

(ii) if such royalty fees have not been set, by agreeing to pay such
royalty fees as shall be determined in accordance with this subsection.

(B) Any royalty payments in arrears shall be made on or before the 20th
day of the month next succeeding the month in which the royalty fees are set.

(8) If a transmitting organization entitled to make a phonorecord under
this subsection is prevented from making such phonorecord by reason of
the application by the copyright owner of technical measures that
prevent the reproduction of the sound recording, the copyright owner
shall make available to the transmitting organization the necessary
means for permitting the making of such phonorecord as permitted under
this subsection, if it is technologically feasible and economically
reasonable for the copyright owner to do so. If the copyright owner
fails to do so in a timely manner in light of the transmitting
organization's reasonable business requirements, the transmitting
organization shall not be liable for a violation of section 1201(a)(1)
of this title for engaging in such activities as are necessary to make
such phonorecords as permitted under this subsection.

(9) Nothing in this subsection annuls, limits, impairs, or otherwise
affects in any way the existence or value of any of the exclusive rights
of the copyright owners in a sound recording, except as otherwise
provided in this subsection, or in a musical work, including the
exclusive rights to reproduce and distribute a sound recording or
musical work, including by means of a digital phonorecord delivery,
under section 106(1), 106(3), and 115, and the right to perform publicly
a sound recording or musical work, including by means of a digital audio
transmission, under sections 106(4) and 106(6).

(f) The transmission program embodied in a copy or phonorecord made
under this section is not subject to protection as a derivative work
under this title except with the express consent of the owners of
copyright in the preexisting works employed in the program.


Section 113. Scope of exclusive rights in pictorial, graphic, and
sculptural works [45]

(a) Subject to the provisions of subsections (b) and (c) of this
section, the exclusive right to reproduce a copyrighted pictorial,
graphic, or sculptural work in copies under section 106 includes the
right to reproduce the work in or on any kind of article, whether useful
or otherwise.

(b) This title does not afford, to the owner of copyright in a work that
portrays a useful article as such, any greater or lesser rights with
respect to the making, distribution, or display of the useful article so
portrayed than those afforded to such works under the law, whether title
17 or the common law or statutes of a State, in effect on December 31,
1977, as held applicable and construed by a court in an action brought
under this title.

(c) In the case of a work lawfully reproduced in useful articles that
have been offered for sale or other distribution to the public,
copyright does not include any right to prevent the making,
distribution, or display of pictures or photographs of such articles in
connection with advertisements or commentaries related to the
distribution or display of such articles, or in connection with news reports.

(d)(1) In a case in which-

(A) a work of visual art has been incorporated in or made part of a
building in such a way that removing the work from the building will
cause the destruction, distortion, mutilation, or other modification of
the work as described in section 106A(a)(3), and

(B) the author consented to the installation of the work in the building
either before the effective date set forth in section 610(a) of the
Visual Artists Rights Act of 1990, or in a written instrument executed
on or after such effective date that is signed by the owner of the
building and the author and that specifies that installation of the work
may subject the work to destruction, distortion, mutilation, or other
modification, by reason of its removal,

then the rights conferred by paragraphs (2) and (3) of section 106A(a)
shall not apply.

(2) If the owner of a building wishes to remove a work of visual art
which is a part of such building and which can be removed from the
building without the destruction, distortion, mutilation, or other
modification of the work as described in section 106A(a)(3), the
author's rights under paragraphs (2) and (3) of section 106A(a) shall
apply unless-

(A) the owner has made a diligent, good faith attempt without success to
notify the author of the owner's intended action affecting the work of
visual art, or

(B) the owner did provide such notice in writing and the person so
notified failed, within 90 days after receiving such notice, either to
remove the work or to pay for its removal.

For purposes of subparagraph (A), an owner shall be presumed to have
made a diligent, good faith attempt to send notice if the owner sent
such notice by registered mail to the author at the most recent address
of the author that was recorded with the Register of Copyrights pursuant
to paragraph (3). If the work is removed at the expense of the author,
title to that copy of the work shall be deemed to be in the author.

(3) The Register of Copyrights shall establish a system of records
whereby any author of a work of visual art that has been incorporated in
or made part of a building, may record his or her identity and address
with the Copyright Office. The Register shall also establish procedures
under which any such author may update the information so recorded, and
procedures under which owners of buildings may record with the Copyright
Office evidence of their efforts to comply with this subsection.


Section 114. Scope of exclusive rights in sound recordings [46]

(a) The exclusive rights of the owner of copyright in a sound recording
are limited to the rights specified by clauses (1), (2), (3) and (6) of
section 106, and do not include any right of performance under section 106(4).

(b) The exclusive right of the owner of copyright in a sound recording
under clause (1) of section 106 is limited to the right to duplicate the
sound recording in the form of phonorecords or copies that directly or
indirectly recapture the actual sounds fixed in the recording. The
exclusive right of the owner of copyright in a sound recording under
clause (2) of section 106 is limited to the right to prepare a
derivative work in which the actual sounds fixed in the sound recording
are rearranged, remixed, or otherwise altered in sequence or quality.
The exclusive rights of the owner of copyright in a sound recording
under clauses (1) and (2) of section 106 do not extend to the making or
duplication of another sound recording that consists entirely of an
independent fixation of other sounds, even though such sounds imitate or
simulate those in the copyrighted sound recording. The exclusive rights
of the owner of copyright in a sound recording under clauses (1), (2),
and (3) of section 106 do not apply to sound recordings included in
educational television and radio programs (as defined in section 397 of
title 47) distributed or transmitted by or through public broadcasting
entities (as defined by section 118(g)): *Provided*, That copies or
phonorecords of said programs are not commercially distributed by or
through public broadcasting entities to the general public.

(c) This section does not limit or impair the exclusive right to perform
publicly, by means of a phonorecord, any of the works specified by
section 106(4).

(d) Limitations on Exclusive Right.   Notwithstanding the provisions of
section 106(6)-

(1) Exempt transmissions and retransmissions.  The performance of a sound
recording publicly by means of a digital audio transmission, other than
as a part of an interactive service, is not an infringement of section
106(6) if the performance is part of-

(A) a nonsubscription broadcast transmission;

(B) a retransmission of a nonsubscription broadcast transmission:
*Provided*, That, in the case of a retransmission of a radio station's
broadcast transmission-

(i) the radio station's broadcast transmission is not willfully or
repeatedly retransmitted more than a radius of 150 miles from the site
of the radio broadcast transmitter, however-

(I) the 150 mile limitation under this clause shall not apply when a
nonsubscription broadcast transmission by a radio station licensed by
the Federal Communications Commission is retransmitted on a non-
subscription basis by a terrestrial broadcast station, terrestrial
translator, or terrestrial repeater licensed by the Federal
Communications Commission; and

(II) in the case of a subscription retransmission of a non-subscription
broadcast retransmission covered by subclause (I), the 150 mile radius
shall be measured from the transmitter site of such broadcast retransmitter;

(ii) the retransmission is of radio station broadcast transmissions that are

(I) obtained by the retransmitter over the air;

(II) not electronically processed by the retransmitter to deliver
separate and discrete signals; and

(III) retransmitted only within the local communities served by the retransmitter;

(iii) the radio station's broadcast transmission was being retransmitted
to cable systems (as defined in section 111(f)) by a satellite carrier
on January 1, 1995, and that retransmission was being retransmitted by
cable systems as a separate and discrete signal, and the satellite
carrier obtains the radio station's broadcast transmission in an analog
format: *Provided*, That the broadcast transmission being retransmitted
may embody the programming of no more than one radio station; or

(iv) the radio station's broadcast transmission is made by a
noncommercial educational broadcast station funded on or after January
1, 1995, under section 396(k) of the Communications Act of 1934 (47
U.S.C. 396(k)), consists solely of noncommercial educational and
cultural radio programs, and the retransmission, whether or not
simultaneous, is a nonsubscription terrestrial broadcast retransmission; or

(C) a transmission that comes within any of the following categories-

(i) a prior or simultaneous transmission incidental to an exempt
transmission, such as a feed received by and then retransmitted by an
exempt transmitter: *Provided*, That such incidental transmissions do
not include any subscription transmission directly for reception by
members of the public;

(ii) a transmission within a business establishment, confined to its
premises or the immediately surrounding vicinity;

(iii) a retransmission by any retransmitter, including a multichannel
video programming distributor as defined in section 602(12) of the
Communications Act of 1934 (47 U.S.C. 522 (12)), of a transmission by a
transmitter licensed to publicly perform the sound recording as a part
of that transmission, if the retransmission is simultaneous with the
licensed transmission and authorized by the transmitter; or

(iv) a transmission to a business establishment for use in the ordinary
course of its business: *Provided*, That the business recipient does not
retransmit the transmission outside of its premises or the immediately
surrounding vicinity, and that the transmission does not exceed the
sound recording performance complement. Nothing in this clause shall
limit the scope of the exemption in clause (ii).

(2) Statutory licensing of certain transmissions.-

The performance of a sound recording publicly by means of a subscription
digital audio transmission not exempt under paragraph (1), an eligible
nonsubscription transmission, or a transmission not exempt under
paragraph (1) that is made by a preexisting satellite digital audio
radio service shall be subject to statutory licensing, in accordance
with subsection (f) if-

(A)(i) the transmission is not part of an interactive service;

(ii) except in the case of a transmission to a business establishment,
the transmitting entity does not automatically and intentionally cause
any device receiving the transmission to switch from one program channel
to another; and

(iii) except as provided in section 1002(e), the transmission of the
sound recording is accompanied, if technically feasible, by the
information encoded in that sound recording, if any, by or under the
authority of the copyright owner of that sound recording, that
identifies the title of the sound recording, the featured recording
artist who performs on the sound recording, and related information,
including information concerning the underlying musical work and its writer;

(B) in the case of a subscription transmission not exempt under
paragraph (1) that is made by a preexisting subscription service in the
same transmission medium used by such service on July 31, 1998, or in
the case of a transmission not exempt under paragraph (1) that is made
by a preexisting satellite digital audio radio service-

(i) the transmission does not exceed the sound recording performance
complement; and

(ii) the transmitting entity does not cause to be published by means of
an advance program schedule or prior announcement the titles of the
specific sound recordings or phonorecords embodying such sound
recordings to be transmitted; and

(C) in the case of an eligible nonsubscription transmission or a
subscription transmission not exempt under paragraph (1) that is made by
a new subscription service or by a preexisting subscription service
other than in the same transmission medium used by such service on July
31, 1998-

(i) the transmission does not exceed the sound recording performance
complement, except that this requirement shall not apply in the case of
a retransmission of a broadcast transmission if the retransmission is
made by a transmitting entity that does not have the right or ability to
control the programming of the broadcast station making the broadcast
transmission, unless-

(I) the broadcast station makes broadcast transmissions-

(aa) in digital format that regularly exceed the sound recording
performance complement; or

(bb) in analog format, a substantial portion of which, on a weekly
basis, exceed the sound recording performance complement; and

(II) the sound recording copyright owner or its representative has
notified the transmitting entity in writing that broadcast transmissions
of the copyright owner's sound recordings exceed the sound recording
performance complement as provided in this clause;

(ii) the transmitting entity does not cause to be published, or induce
or facilitate the publication, by means of an advance program schedule
or prior announcement, the titles of the specific sound recordings to be
transmitted, the phonorecords embodying such sound recordings, or, other
than for illustrative purposes, the names of the featured recording
artists, except that this clause does not disqualify a transmitting
entity that makes a prior announcement that a particular artist will be
featured within an unspecified future time period, and in the case of a
retransmission of a broadcast transmission by a transmitting entity that
does not have the right or ability to control the programming of the
broadcast transmission, the requirement of this clause shall not apply
to a prior oral announcement by the broadcast station, or to an advance
program schedule published, induced, or facilitated by the broadcast
station, if the transmitting entity does not have actual knowledge and
has not received written notice from the copyright owner or its
representative that the broadcast station publishes or induces or
facilitates the publication of such advance program schedule, or if such
advance program schedule is a schedule of classical music programming
published by the broadcast station in the same manner as published by
that broadcast station on or before September 30, 1998;

(iii) the transmission-

(I) is not part of an archived program of less than 5 hours duration;

(II) is not part of an archived program of 5 hours or greater in
duration that is made available for a period exceeding 2 weeks;

(III) is not part of a continuous program which is of less than 3 hours
duration; or

(IV) is not part of an identifiable program in which performances of
sound recordings are rendered in a predetermined order, other than an
archived or continuous program, that is transmitted at-

(aa) more than 3 times in any 2-week period that have been publicly
announced in advance, in the case of a program of less than 1 hour in
duration, or

(bb) more than 4 times in any 2-week period that have been publicly
announced in advance, in the case of a program of 1 hour or more in
duration, except that the requirement of this subclause shall not apply
in the case of a retransmission of a broadcast transmission by a
transmitting entity that does not have the right or ability to control
the programming of the broadcast transmission, unless the transmitting
entity is given notice in writing by the copyright owner of the sound
recording that the broadcast station makes broadcast transmissions that
regularly violate such requirement;

(iv) the transmitting entity does not knowingly perform the sound
recording, as part of a service that offers transmissions of visual
images contemporaneously with transmissions of sound recordings, in a
manner that is likely to cause confusion, to cause mistake, or to
deceive, as to the affiliation, connection, or association of the
copyright owner or featured recording artist with the transmitting
entity or a particular product or service advertised by the transmitting
entity, or as to the origin, sponsorship, or approval by the copyright
owner or featured recording artist of the activities of the transmitting
entity other than the performance of the sound recording itself;

(v) the transmitting entity cooperates to prevent, to the extent
feasible without imposing substantial costs or burdens, a transmission
recipient or any other person or entity from automatically scanning the
transmitting entity's t