Chapter 12 Endnotes_Copyright Law of the United States of America and Related Laws Contained in Title 17 of the United States Code, Circular 92

Produced by George Davis

and

Related Laws Contained in Title 17 of the *United States Code*

Circular 92

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Contents

+ The Constitutional Provision Respecting Copyright

+ Preface

+ Chapter 1 - Subject Matter and Scope of Copyright

+ Chapter 2 - Copyright Ownership and Transfer

+ Chapter 3 - Duration of Copyright

+ Chapter 4 - Copyright Notice, Deposit, and Registration

+ Chapter 5 - Copyright Infringement and Remedies

+ Chapter 6 - Manufacturing Requirements and Importation

+ Chapter 7 - Copyright Office

+ Chapter 8 - Copyright Arbitration Royalty Panels

+ Chapter 9 - Protection of Semiconductor Chip Products

+ Chapter 10 - Digital Audio Recording Devices and Media

+ Chapter 11 - Sound Recordings and Music Videos

+ Chapter 12 - Copyright Protection and Management Systems

+ Chapter 13 - Protection of Original Designs

+ Appendix I. Transitional and Supplementary Provisions of the

+ Appendix II. Berne Convention Implementation Act of 1988

+ Appendix III. Uruguay Round Agreements Act

+ Appendix IV. GATT/Trade-Related Aspects of Intellectual Property

Rights (TRIPs) Agreement, Part II, Section 6:

Layout-Designs (Topographies) of Integrated Circuits

+ Appendix V. Additional Provisions of the Digital Millennium

+ Appendix VI. Definition of "Berne Convention Work"

+ Appendix VII. Selected Provisions of the U.S. Code Relating to

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The Constitutional Provision Respecting Copyright

The Congress shall have Power ... To promote the Progress of Science and

useful Arts, by securing for limited Times to Authors and Inventors the

exclusive Right to their respective Writings and Discoveries

(United States Constitution, Article I, Section 8)

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Preface

This volume contains the text of title 17 of the *United States Code*,

including all amendments enacted through the end of the second session

of the 106th Congress in 2000. It includes the Copyright Act of 1976 and

all subsequent amendments to copyright law; the Semiconductor Chip

Protection Act of 1984, as amended; and the Vessel Hull Design

Protection Act, as amended. The Copyright Office is responsible for

registering claims under all three.

The United States copyright law is contained in chapters 1 through 8 and

10 through 12 of title 17 of the *United States Code.* The Copyright Act

of 1976, which provides the basic framework for the current copyright

law, was enacted on October 19, 1976 as Pub. L. No. 94-553, 90 Stat.

2541. Listed below in chronological order of their enactment are

subsequent amendments to copyright law.

Chapters 9 and 13 of title 17 contain statutory design protection that

is independent of copyright protection. Chapter 9 of title 17 is the

Semiconductor Chip Protection Act of 1984 (SCPA), as amended. On

November 8, 1984, the SCPA was enacted as title III of Pub. L. No.

98-620, 98 Stat. 3335, 3347. Chapter 13 of title 17 is the Vessel Hull

Design Protection Act (VHDPA). It was enacted on October 28, 1998 as

title V of the Digital Millennium Copyright Act (DMCA), Pub. L. No.

105-304, 112 Stat. 2860, 2905. Subsequent amendments to the SCPA and the

VHDPA are also included in the list below, in chronological order of

their enactment.

For transitional and supplementary copyright provisions that were

enacted as part of the Copyright Act of 1976 and the DMCA, but which do

not amend title 17, see the Appendix.

Statutory Enactments Contained in Title 17 of the *United States Code*

+ [Copyright Act of 1976], Pub. L. No. 94-553, 90 Stat. 2541 (for the

general revision of copyright law, title 17 of the *United States Code*,

and for other purposes), October 19, 1976.

+ Legislative Branch Appropriation Act, 1978, Pub. L. No. 95-94, 91

Stat. 653, 682 (amending Sec. 203 and 708, title 17, *United States Code*,

regarding the deposit of moneys by the Register of Copyrights in the

Treasury of the United States), enacted August 5, 1977.

+ [Copyright Amendments], Pub. L. No. 95-598, 92 Stat. 2549, 2676

(amending Sec. 201(e), title 17, *United States Code*, to permit

involuntary transfer under the Bankruptcy Law), enacted November 6, 1978.

+ [Copyright Amendments], Pub. L. No. 96-517, 94 Stat. 3015, 3028

(amending Sec. 101 and 117, title 17, *United States Code*, regarding

computer programs), enacted December 12, 1980.

+ Piracy and Counterfeiting Amendments Act of 1982, Pub. L. No.

97-180, 96 Stat. 91, 93 (amending Sec. 506(a), title 17, *United States

Code* and title 18 of the *United States Code*), enacted May 24, 1982.

+ [Copyright Amendments], Pub. L. No. 97-215, 96 Stat. 178 (amending

the manufacturing clause in chapter 6, title 17, *United States Code*),

enacted July 13, 1982.

+ [Copyright Amendments], Pub. L. No. 97-366, 96 Stat. 1759 (amending

Sec. 110 and Sec. 708, title 17, *United States Code*, regarding the

redesignation of registration fees as filing fees, and the exemption

from copyright liability of certain performances of nondramatic literary

or musical works), enacted October 25, 1982.

+ Record Rental Amendment of 1984, Pub. L. No. 98-450, 98 Stat. 1727

(amending Sec. 109 and Sec. 115, title 17, *United States Code*, with

respect to rental, lease or lending of sound recordings), enacted

October 4, 1984.

+ Semiconductor Chip Protection Act of 1984, title III of Pub. L. No.

98-620, 98 Stat. 3335, 3347 (adding chapter 9, title 17, *United States

Code*, to provide design protection for semiconductor chips), November

8, 1984.

+ [Copyright Amendments], Pub. L. No. 99-397, 100 Stat. 848 (amending

Sec. 111 and Sec. 801, title 17, *United States Code*, to clarify the

definition of the local service area of a primary transmitter in the

case of a low power television station), enacted on August 27, 1986.

+ [Amendments to the Semiconductor Chip Protection Act of 1984], Pub.

L. No. 100-159, 101 Stat. 899 (amending chapter 9, title 17, *United

States Code*, regarding protection extended to semiconductor chip

products of foreign entities), enacted November 9, 1987.

+ Berne Convention Implementation Act of 1988, Pub. L. No. 100-568,

102 Stat. 2853, enacted October 31, 1988. (See the Appendix for certain

provisions of this Act that do not amend title 17 of the *United States

Code.*)

+ [Copyright Amendments], Pub. L. No. 100-617, 102 Stat. 3194

(extending for an additional eight-year period certain provisions of

title 17, *United States Code*, relating to the rental of sound

recordings and for other purposes), enacted November 5, 1988.

+ Satellite Home Viewer Act of 1988, title II of Pub. L. No. 100-667,

102 Stat. 3935, 3949, enacted November 16, 1988.

+ Judicial Improvements and Access to Justice Act, Pub. L. No.

100-702, 102 Stat. 4642, 4672 (amending Sec. 912, title 17, *United States

Code*), enacted November 19, 1988.

+ Copyright Fees and Technical Amendments Act of 1989, Pub. L. No.

101-318, 104 Stat. 287, enacted on July 3, 1990.

+ Copyright Royalty Tribunal Reform and Miscellaneous Pay Act of 1989,

Pub. L. No. 101-319, 104 Stat. 290, enacted July 3, 1990.

+ Copyright Remedy Clarification Act, Pub. L. No. 101-553, 104 Stat.

2749, enacted November 15, 1990.

+ Visual Artists Rights Act of 1990, title VI of the Judicial

Improvements Act of 1990, Pub. L. No. 101-650, 104 Stat. 5089, 5128,

enacted December 1, 1990.

+ Architectural Works Copyright Protection Act, title VII of the

Judicial Improvements Act of 1990, Pub. L. No. 101-650, 104 Stat. 5089,

5133, enacted December 1, 1990.

+ Computer Software Rental Amendments Act of 1990, title VIII of the

Judicial Improvements Act of 1990, Pub. L. No. 101-650, 104 Stat 5089,

5134, enacted December 1, 1990.

+ Semiconductor International Protection Extension Act of 1991, Pub.

L. No. 102-64, 105 Stat. 320 (amending chapter 9, title 17, *United

States Code*, regarding protection extended to semiconductor chip

products of foreign entities), enacted June 28, 1991.

+ Copyright Amendments Act of 1992, Pub. L. No. 102-307, 106 Stat.

264, 272 (amending title 17 of the *United States Code*, by deleting

subsection 108(i) in its entirety), enacted June 26, 1992.

+ Copyright Renewal Act of 1992, title I of the Copyright Amendments

Act of 1992, Pub. L. No. 102-307, 106 Stat. 264, enacted June 26, 1992.

+ [Copyright Amendments], Pub. L. No. 102-492, 106 Stat. 3145

(amending Sec. 107, title 17, *United States Code*, regarding unpublished

works), enacted October 24, 1992.

+ [Copyright Amendments], Pub. L. No. 102-561, 106 Stat. 4233

(amending Sec. 2319, title 18, *United States Code*, regarding criminal

penalties for copyright infringement), enacted October 28, 1992.

+ Audio Home Recording Act of 1992, Pub. L. No. 102-563, 106 Stat.

4237 (amending title 17 of the *United States Code* by adding a new

chapter 10), enacted October 28, 1992.

+ North American Free Trade Agreement Implementation Act, Pub. L. No.

103-182, 107 Stat. 2057, 2114 and 2115 (amending Sec. 109, title 17,

*United States Code*, and adding a new Sec. 104A), enacted December 8,

1993.

+ Copyright Royalty Tribunal Reform Act of 1993, Pub. L. No. 103-198,

107 Stat. 2304 (amending, *inter alia*, chapter 8, title 17, *United

States Code*), enacted December 17, 1993.

+ Satellite Home Viewer Act of 1994, Pub. L. No. 103-369, 108 Stat.

3477 (amending, *inter alia*, Sec. 111 and Sec. 119, title 17, *United

States Code*, relating to the definition of a local service area of a

primary transmitter), enacted October 18, 1994.

+ Uruguay Round Agreements Act, Pub. L. No. 103-465, 108 Stat. 4809,

4973 (amending, *inter alia*, Sec. 104A, title 17, *United States Code*,

and adding a new chapter 11), enacted December 8, 1994. (See the

Appendix for the text of certain provisions of this Act that do not

amend title 17 of the *United States Code.*)

+ Digital Performance Right in Sound Recordings Act of 1995, Pub. L.

No. 104-39, 109 Stat. 336 (amending, *inter alia*, Sec. 114 and Sec. 115,

title 17, *United States Code*), enacted November 1, 1995.

+ Anticounterfeiting Consumer Protection Act of 1996, Pub. L. No.

104-153, 110 Stat. 1386, 1388 (amending Sec. 603(c), title 17, *United

States Code* and Sec. 2318, title 18, *United States Code*), enacted

July 2, 1996.

+ Legislative Branch Appropriations Act, 1997, Pub. L. No. 104-197,

110 Stat. 2394, 2416 (amending*, inter alia*, title 17 of the *United

States Code*, by adding a new Sec. 121 concerning the limitation on

exclusive copyrights for literary works in specialized format for the

blind and disabled), enacted September 16, 1996.

+ [Copyright Amendments and Amendments to the Semiconductor Chip

Protection Act of 1984], Pub. L. No. 105-80, 111 Stat. 1529 (making

technical amendments to certain provisions of title 17, *United States

Code*), enacted November 13, 1997.

+ No Electronic Theft (NET) Act, Pub. L. No. 105-147, 111 Stat. 2678,

enacted December 16, 1997.

+ Sonny Bono Copyright Term Extension Act, title I of Pub. L. No.

105-298, 112 Stat. 2827 (amending chapter 3, title 17, *United States

Code*, to extend the term of copyright protection for most works to life

plus 70 years), enacted October 27, 1998.

+ Fairness in Music Licensing Act of 1998, title II of Pub. L. No.

105-298, 112 Stat. 2827, 2830 (amending, *inter alia*, Sec. 110, title 17,

*United States Code*, and adding Sec. 513 to provide a music licensing

exemption for food service and drinking establishments), enacted October

27, 1998.

+ Digital Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat.

2860, 2887 (title IV amending Sec. 108, 112, 114, chapter 7 and chapter

8, title 17, *United States Code*), enacted October 28, 1998. (This Act

also contains four separate acts within titles I, II, III and V that

amended title 17 of the *United States Code.* These four acts are each

separately listed below. See the Appendix for additional provisions of

this Act that do not amend title 17 of the *United States Code.*)

+ WIPO Copyright and Performances and Phonograms Treaties

Implementation Act of 1998, title I of the Digital Millennium Copyright

Act, Pub. L. No. 105-304, 112 Stat. 2860, 2861 (amending title 17 of the

*United States Code*, *inter alia*, to add a new chapter 12 which

prohibits circumvention of copyright protection systems and provides

protection for copyright management information), enacted October 28,

1998.

+ Online Copyright Infringement Liability Limitation Act, title II of

the Digital Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat.

2860, 2877 (amending title 17 of the *United States Code*, to add a new

Sec. 512), enacted October 28, 1998.

+ Computer Maintenance Competition Assurance Act, title III of the

Digital Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat. 2860,

2886 (amending Sec. 117, title 17, *United States Code*), enacted October

28, 1998.

+ Vessel Hull Design Protection Act, title V of the Digital Millennium

13, title 17, *United States Code*, to provide design protection for

vessel hulls), enacted October 28, 1998.

+ [Copyright Amendments and Amendments to the Vessel Hull Design

Protection Act], Pub. L. No. 106-44, 113 Stat. 221 (making technical

corrections to title 17 of the *United States Code*), enacted August 5,

1999.

+ Satellite Home Viewer Improvement Act of 1999, title I of the

Intellectual Property and Communications Omnibus Reform Act of 1999,

Pub. L. No. 106-113, 113 Stat. 1501, app. I (amending chapters 1 and 5

of title 17 of the *United States Code* to replace the Satellite Home

Viewer Act of 1994 and amending chapters 12 and 13 of title 17), enacted

November 29, 1999.

+ Digital Theft Deterrence and Copyright Damages Improvement Act of

1999, Pub. L. No. 106-160, 113 Stat 1774, (amending chapter 5 of title

17 of the *United States Code* to increase statutory damages for

+ Work Made for Hire and Copyright Corrections Act of 2000, Pub. L.

No. 106-379, 114 Stat. 1444 (amending the definition of work made for

hire in title 17 of the *United States Code*, amending chapter 7 of

title 17, including changing the language regarding Copyright Office

fees, and making other technical and conforming amendments to title 17),

enacted October 27, 2000.

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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

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;

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

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

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,

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.

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

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.

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

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

(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

(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

(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

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.

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

(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

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;

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

(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;

(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

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

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;

(i) noncompliance with formalities imposed at any time by United States

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

(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]

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.

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

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

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.

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

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

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

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.

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

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.

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

(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

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)