New Yorkers For Fair Use

© Copyright for the Digital Millennium
This is a major excerpt of the Statutory foundation of the Fair Use Doctrine. One thing to remember in examing this section is that Fair Use is a Constitutional Guarantee. The courts created Fair Use, and Congress can not limit your Fair Use rights. Many of these statutes in Court fail because Congress really can not define Fair Use less restrictively than the Supreme Court since it is the Court which legally defined Fair Use as a Constitutional Guaranteed Doctrine.

The entire Statute can be found at Cornel University

Sec. 107. Limitations on exclusive rights: Fair use 


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 The fact that a work is unpublished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. 


Sec. 108. Limitations on exclusive rights: Reproduction by libraries and
archives 

    (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 copyright 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). 

Sec. 109. Limitations on exclusive rights: Effect of transfer of particular copy or phonorecord 

    (a) Notwithstanding the provisions of section 106(3), the owner of a particular copy or phonorecord lawfully made under
    this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or
    otherwise dispose of the possession of that copy or phonorecord. 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. 


Sec. 110. Limitations on exclusive rights: Exemption of certain performances and displays 


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

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

    (2) performance of a nondramatic literary or musical work or 
    display of a work, by or in the course of a transmission, if - 
        (A) the performance or display is a regular part of the 
        systematic instructional activities of a governmental body or a 
        nonprofit educational institution; and 
        (B) the performance or display is directly related and of 
        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 - 
        (A) [1] a direct charge is made to see or hear the 
        transmission; or 
        [1] So in original. Probably should be ''(i)''. 
        (B) [2] the transmission thus received is further 
        transmitted to the public; 
        [2] So in original. Probably should be ''(ii)''. 
        (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 one 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. 
US Code as of: 01/05/99

Sec. 111. Limitations on exclusive rights: Secondary transmissions 

    (a) Certain Secondary Transmissions Exempted. - The secondary transmission of a primary transmission embodying a
    performance or display of a work is not an infringement of copyright if - 
        (1) the secondary transmission is not made by a cable system, 
        and consists entirely of the relaying, by the management of a 
        hotel, apartment house, or similar establishment, 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 primary transmission embodying a performance or
    display of a work is actionable as an act of infringement under section 501, and is fully subject to the remedies provided
    by sections 502 through 506 and 509, if the primary transmission is not made for reception by the public at large but is
    controlled and limited to reception by particular members of the public: Provided, however, That such secondary
    transmission is not actionable as an act of infringement if - 
        (1) the primary transmission is made by a broadcast station 
        licensed by the Federal 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 primary transmission made by a 
        broadcast station licensed by the Federal Communications 
        Commission or by an appropriate governmental authority of Canada 
        or Mexico and embodying a performance or display of a work shall 
        be subject to compulsory licensing upon compliance with the 
        requirements of subsection (d) where the carriage of the signals 
        comprising the secondary transmission is permissible under the 
        rules, regulations, or authorizations of the Federal 
        Communications Commission. 
        (2) Notwithstanding the provisions of clause (1) of this 
        subsection, the willful or repeated secondary transmission to the 
        public by a cable system of a primary transmission made by a 
        broadcast station licensed by the Federal Communications 
        Commission or by an appropriate governmental authority of Canada 
        or Mexico and embodying a performance or display of a work is 
        actionable as an act of infringement under section 501, and is 
        fully subject to the remedies provided by sections 502 through 
        506 and 509, in the following cases: 
           (A) where the carriage of the signals comprising the 
           secondary transmission is not permissible under the rules, 
           regulations, or authorizations of the Federal Communications 
           Commission; or 
           (B) where the cable system has not deposited the statement of 
           account and royalty fee required by subsection (d). 
        (3) Notwithstanding the provisions of clause (1) of this 
        subsection and subject to the provisions of subsection (e) of 
        this section, the secondary transmission to the public by a cable 
        system of a primary transmission made by a broadcast station 
        licensed by the Federal Communications Commission or by an 
        appropriate governmental authority of Canada or Mexico and 
        embodying a performance or display of a work is actionable as an 
        act of infringement under section 501, and is fully subject to 
        the remedies provided by sections 502 through 506 and sections 
        509 and 510, if the content of the particular program in which 
        the performance or display is embodied, or any commercial 
        advertising or station announcements transmitted by the primary 
        transmitter during, or immediately before or after, the 
        transmission of such program, is in any way willfully altered by 
        the cable system through changes, deletions, or additions, except 
        for the alteration, deletion, or substitution of commercial 
        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 primary transmission made by a broadcast station 
        licensed by an appropriate governmental authority of Canada or 
        Mexico and embodying a performance or display of a work is 
        actionable as an act of infringement under section 501, and is 
        fully subject to the remedies provided by sections 502 through 
        506 and section 509, if (A) with respect to Canadian signals, the 
        community of the cable system is located more than 150 miles 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) Compulsory License for Secondary Transmissions by Cable Systems. - 
        (1) A cable system whose secondary transmissions have been 
        subject to compulsory licensing under subsection (c) shall, on a 
        semiannual basis, deposit with the Register of Copyrights, in 
        accordance with requirements that the Register shall 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 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 paragraphs (ii) through 
                   () 0.2 of 1 per centum of such gross receipts for the 
                   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); 
               (C) any such owner whose work was included in nonnetwork 
               programing consisting exclusively of aural signals carried by a 
               cable system in whole or in part beyond the local service area 
               of the primary transmitter of such programs. 
           (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 compulsory 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 compulsory licensing fees among them, 
               may lump their claims together and file them jointly or as a 
               single claim, or may designate a common agent to receive 
               payment on their behalf. 
               (B) After the first day of August of each year, the 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 programing 
        carried by a cable system in whole or in part beyond the local 
        service area of the primary transmitter of such programing. It 
        is computed by assigning a value of one to each independent 
        station and a value of one-quarter to each network station and 
        noncommercial educational station for the nonnetwork programing 
        so carried pursuant to the rules, regulations, and authorizations 
        of the Federal Communications Commission. The foregoing values 
        for independent, network, and noncommercial educational stations 
        are subject, however, to the following exceptions and 
        limitations. Where the rules and regulations of the Federal 
        Communications Commission require a cable system to omit the 
        further transmission of a particular program and such rules and 
        regulations also permit the substitution of another program 
        embodying a performance or display of a work in place of the 
        omitted transmission, or where such rules and regulations in 
        effect on the date of enactment of this Act permit a cable 
        system, at its election, to effect such deletion and substitution 
        of a 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 programing rules of the 
        Federal Communications Commission, or a station carried on a 
        part-time basis where full-time carriage is not possible because 
        the cable system lacks the activated channel capacity to 
        retransmit on a full-time basis all signals which it is 
        authorized to carry, the values for independent, network, and 
        noncommercial educational stations set forth above, as the case 
        may be, shall be multiplied by a fraction which is equal to the 
        ratio of the broadcast hours of such station carried by the cable 
        system to the total broadcast hours of the station. 
        A ''network station'' is a television broadcast station that is 
        owned or operated by, or affiliated with, one or more of the 
        television networks in the United States providing nationwide 
        transmissions, and that transmits a substantial part of the 
        programing supplied by such networks for a substantial part of 
        that station's typical broadcast day. 
        An ''independent station'' is a commercial television broadcast 
        station other than a network station. 
        A ''noncommercial educational station'' is a television station 
        that is a noncommercial educational broadcast station as defined 
        in section 397 of title 47. 
US Code as of: 01/05/99

Sec. 112. Limitations on exclusive rights: Ephemeral recordings 

    (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. 
           (3) [1] 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. 
           [1] So in original. No par. (2) has been enacted. 
           (4) 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 (2) 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. 
           (5) In the absence of license agreements negotiated under paragraph (3), during the 60-day period
           commencing 6 months after publication of the notice specified in paragraph (4), 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 (6), 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 (3) and (4). 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. 
           (6) 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. 
           (7) Publication of a notice of the initiation of voluntary negotiation proceedings as specified in paragraph (4)
           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 (4). The procedures specified
           in paragraph (5) 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 (4). The procedures specified in paragraph
           (5) shall be concluded in accordance with section 802. 
           (8) 
               (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. 
           (9) 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. 
           (10) 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 sections 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.