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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 The fact that a work is unpublished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.
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