/* BBS LEGAL GUIDE COMMENTARY: Here's the beginning of the

copyright code, remember that the definitions are critical to

understanding the statute as a whole.*/

CHAPTER 1. SUBJECT MATTER AND SCOPE OF COPYRIGHT

Section

101. Definitions

102. Subject matter of copyright: In general

103. Subject matter of copyright: Compilations and derivative

works

104. Subject matter of copyright: National origin

105. Subject matter of copyright: United States Government works

106. Exclusive rights in copyrighted works

107. Limitations on exclusive rights: Fair use

108. Limitations on exclusive rights: Reproduction by libraries

and archives

109. Limitations on exclusive rights: Effect of transfer of

particular copy or phonorecord

110. Limitations on exclusive rights: Exemption of certain

performances and displays

111. Limitations on exclusive rights: Secondary transmissions

112. Limitations on exclusive rights: Ephemeral recordings

113. Scope of exclusive rights in pictorial, graphic, and

sculptural works

114. Scope of exclusive rights in sound recordings

115. Scope of exclusive rights in nondramatic musical works:

Compulsory license for making and distributing

phonorecords

116. Scope of exclusive rights in nondramatic musical works:

Public performances by means of coin-operated phonorecord

players

117. Scope of exclusive rights: Use in conjunction with

computers and similar information systems

118. Scope of exclusive rights: Use of certain works in

connection with noncommercial broadcasting

SUBJECT MATTER AND SCOPE

S 101. Definitions

As used in this title [17 USC SS 101 et seq.], the following

terms and their variant forms mean the following:

An "anonymous work" is a work on the copies or phonorecords of

which no natural person is identified as author.

An "architectural work" is the design of a building as embodied

in any tangible medium of expression, including a building,

architectural plans, or drawings. The work includes the overall

form as well as the arrangement and composition of spaces and

elements in the design, but does not include individual standard

features

"Audiovisual works" are works that consist of a series of related

images which are intrinsically intended to be shown by the use of

machines or devices such as projectors, viewers, or electronic

equipment, together with accompanying sounds, if any, regardless

of the nature of the material objects, such as films or tapes, in

which the works are embodied.

The "best edition" of a work is the edition, published in the

United States at any time before the date of deposit, that the

Library of Congress determines to be most suitable for its

purposes.

The "Berne Convention" is the Convention for the Protection of

Literary and Artistic Works, signed at Berne, Switzerland, on

September 9, 1886, and all acts, protocols, and revisions

thereto.

A work is a "Berne Convention work" if--

(1) in the case of an unpublished work, one or more of the

authors is a national of a nation adhering to the Berne

Convention, or in the case of a published work, one or more of the

authors is a national of a nation adhering to the Berne

Convention on the date of first publication;

(2) the work was first published in a nation adhering to the

Berne Convention, or was simultaneously first published in a

nation adhering to the Berne Convention and in a foreign nation

that does not adhere to the Berne Convention;

(3) in the case of an audiovisual work--

(A) if one of more of the authors is a legal

entity,that author has its headquarters in a nation adhering to

the Berne Convention; or

(B) if one or more of the authors is an individual,

that author is domiciled, or has his or her habitual residence

in, a nation adhering to the Berne Convention;

(4) in the case of pictorial, graphic, or sculptural work that is

incorporated in a building or other structure, the building or

structure, the building or structure is located in a nation

adhering to the Berne Convention;

(5) in the case of an architectural work embodied in a building,

such building is erected in a country adhering to the Berne

Convention.

For purposes of paragraph (1), an author who is domiciled in or

has his or her habitual residence in, a nation adhering to the

Berne Convention is considered to be a national of that nation. For

purposes of paragraph (2), a work is considered to have been

simultaneously published in two or more nation if its dates of

publication are within 30 days of one another.

A person's "children" are that person's immediate offspring,

whether legitimate or not, and any children legally adopted by

that person.

A "collective work" is a work, such as a periodical issue,

anthology, or encyclopedia, in which a number of contributions,

constituting separate and independent works in themselves, are

assembled into a collective whole.

A "compilation" is a work formed by the collection and assembling

of preexisting materials or of data that are selected,

coordinated, or arranged in such a way that the resulting work as

a whole constitutes an original work of authorship. The term

"compilation" includes collective works.

A "computer program" is a set of statements or instructions to be

used directly or indirectly in a computer in order to bring about

a certain result.

"Copies" are material objects, other than phonorecords, in which

a work is fixed by any method now known or later developed, and

from which the work can be perceived, reproduced, or otherwise

communicated, either directly or with the aid of a machine or

device. The term "copies" includes the material object, other

than a phonorecord, in which the work is first fixed.

"Copyright owner", with respect to any one of the exclusive

rights comprised in a copyright, refers to the owner of that

particular right.

A work is "created" when it is fixed in a copy or phonorecord for

the first time; where a work is prepared over a period of time,

the portion of it that has been fixed at any particular time

constitutes the work as of that time, and where the work has been

prepared in different versions, each version constitutes a

separate work.

The "country of origin" of a Berne Convention work, for purposes of

section 411, is the United States if--

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

published--

(A) in the United States;

(B) simultaneously in the United States and another nation or

nations adhering to the Berne Convention, who law grants a term of

copyright protection that is the same or longer than the term

provided in the United States;

(C) simultaneously in the United States and a foreign nation

that does not adhere to the Berne Convention; or

(D) in a foreign nation that does not adhere to the Berne

Convention, and all of the authors of the work are national,

domicilaries, or habitual resident of,or in the case of an

audiovisual work legal entities with headquarters in, the United

States; or

(2) in the case of an unpublished work, all the authors of the

work are nationals, domiciliaries, or habitual residents of the

United States, or in the case of an unpublished audiovisual work,

all authors are legal entities with headquarters in the United

States; or,

(3) in the case of a pictorial, graphic, or sculptural work

incorporated in a building or structure is located in the United

States.

For the purposes of section411, the "country of origin" of nay

other Berne Convention work is not the United States.

A "derivative work" is a work based upon one or more preexisting

works, such as a translation, musical arrangement, dramatization,

fictionalization, motion picture version, sound recording, art

reproduction, abridgment, condensation, or any other form in

which a work may be recast, transformed, or adapted. A work

consisting of editorial revisions, annotations, elaborations, or

other modifications which, as a whole, represent an original work

of authorship, is a "derivative work".

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

developed.

To "display" a work means to show a copy of it, either directly

or by means of a film, slide, television image, or any other

device or process or, in the case of a motion picture or other

audiovisual work, to show individual images nonsequentially.

A work is "fixed" in a tangible medium of expression when its

embodiment in a copy or phonorecord, by or under the authority of

the author, is sufficiently permanent or stable to permit it to

be perceived, reproduced, or otherwise communicated for a period

of more than transitory duration. A work consisting of sounds,

images, or both, that are being transmitted, is "fixed" for

purposes of this title [17 USC SS 101 et seq.] if a fixation of

the work is being made simultaneously with its transmission.

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

limitative.

A "joint work" is a work prepared by two or more authors with the

intention that their contributions be merged into inseparable or

interdependent parts of a unitary whole.

/* Often this can be a problem with employees when there are not

formal contracts, or if a friend helps out with some coding or

writing. In short, if someone contributes to a work he will either

own the part that he wrote or will own the whole thing with the

other author as a "joint work." The only exception to this rule

is when the person is actually a salaried employee. Otherwise

you need a written contract if someone who helps you is not

going to be considered a joint author.*/

"Literary works" are works, other than audiovisual works,

expressed in words, numbers, or other verbal or numerical

symbols or indicia, regardless of the nature of the material

objects, such as books, periodicals, manuscripts, phonorecords,

film, tapes, disks, or cards, in which they are embodied.

"Motion pictures" are audiovisual works consisting of a series of

related images which, when shown in succession, impart an

impression of motion, together with accompanying sounds, if any.

To "perform" a work means to recite, render, play, dance, or act

it, either directly or by means of any device or process or, in

the case of a motion picture or other audiovisual work, to show

its images in any sequence or to make the sounds accompanying it

audible.

"Phonorecords" are material objects in which sounds, other than

those accompanying a motion picture or other audiovisual work,

are fixed by any method now known or later developed, and from

which the sounds can be perceived, reproduced, or otherwise

communicated, either directly or with the aid of a machine or

device. The term "phonorecords" includes the material object in

which the sounds are first fixed.

"Pictorial, graphic, and sculptural works" include two-

dimensional and three-dimensional works of fine, graphic, and

applied art, photographs, prints and art reproductions, maps,

globes, charts, diagrams, models and technical drawings,

including architectural plans. Such works shall include works of

artistic craftsmanship insofar as their form but not their

mechanical or utilitarian aspects are concerned; the design of a

useful article, as defined in this section, shall be considered a

pictorial, graphic, or sculptural work only if, and only to the

extent that, such design incorporates pictorial, graphic, or

sculptural features that can be identified separately from, and

are capable of existing independently of, the utilitarian aspects

of the article.

A "pseudonymous work" is a work on the copies or phonorecords of

which the author is identified under a fictitious name.

"Publication" is the distribution of copies or phonorecords of a

work to the public by sale or other transfer of ownership, or by

rental, lease, or lending. The offering to distribute copies or

phonorecords to a group of persons for purposes of further

distribution, public performance, or public display, constitutes

publication. A public performance or display of a work does not

of itself constitute publication.

To perform or display a work "publicly" means --

(1) to perform or display it at a place open to the public or

at any place where a substantial number of persons outside of a

normal circle of a family and its social acquaintances is

gathered; or

(2) to transmit or otherwise communicate a performance or

display of the work to a place specified by clause (1) or to the

public, by means of any device or process, whether the members

of the public capable of receiving the performance or display

receive it in the same place or in separate places and at the

same time or at different times.

"Sound recordings" are works that result from the fixation of a

series of musical, spoken, or other sounds, but not including the

sounds accompanying a motion picture or other audiovisual work,

regardless of the nature of the material objects, such as disks,

tapes, or other phonorecords, in which they are embodied.

"State" includes the District of Columbia and the Commonwealth of

Puerto Rico, and any territories to which this title [17 USC SS

101 et se.] is made applicable by an Act of Congress.

A "transfer of copyright ownership" is an assignment, mortgage,

exclusive license, or any other conveyance, alienation, or

hypothecation of a copyright or of any of the exclusive rights

comprised in a copyright, whether or not it is limited in time

or place of effect, but not including a nonexclusive license.

/* Hypothecation is when the owner pledges property for the debt

of another.*/

A "transmission program" is a body of material that, as an

aggregate, has been produced for the sole purpose of transmission

to the public in sequence and as a unit.

To "transmit" a performance or display is to communicate it by

any device or process whereby images or sounds are received

beyond the place from which they are sent.

The "United States", when used in a geographical sense, comprises

the several States, the District of Columbia and the Commonwealth

of Puerto Rico, and the organized territories under the

jurisdiction of the United States Government.

A "useful article" is an article having an intrinsic utilitarian

function that is not merely to portray the appearance of the

article or to convey information. An article that is normally a

part of a useful article is considered a "useful article".

The author's "widow" or "widower" is the author's surviving

spouse under the law of the author's domicile at the time of his

or her death, whether or not the spouse has later remarried.

A "work of visual art" is--

(1) a painting, drawing, print, or sculpture, existing in a

single copy, in a limited edition of 200 copies or fewer that are

signed and consecutively numbered by the author, or, in the case

of a sculpture, in multiple cast, carved, or fabricated

sculptures of 200 or fewer that are consecutively numbered by

the author and bear the signature or other identifying mark of

the author; or

(2) a still photographic image produced for exhibition

purposes only, existing in a single copy that is signed by the

author, or in a limited edition of 200 copies or fewer that are

signed and consecutively numbered by the author.

A work of visual art does not include--

(A)(i) any poster, map, glove, chart, technical

drawing,diagram, model, applied art, motion picture or other

audio-visual work, book, magazine, newspaper, periodical, data

base, electronic information service, electronic publication, or

similar publication;

(ii) any merchandising item or advertising, promotional,

descriptive, covering, or packaging material, or

similar publication;

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

(i) or (ii);

(B) any work made for hire; or

(C) any work not subject to copyright protection under this

title.

A "work of the United States Government" is a work prepared by an

officer or employee of the United States Government as part of

that person's official duties.

A "work made for hire" is --

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

employment; or

(2) a work specially ordered or commissioned for use as a

contribution to a collective work, as a part of a motion picture

or other audiovisual work, as a translation, as a supplementary

work, as a compilation, an as instructional text, as a test, an

answer material for a test, or as an atlas, if the parties

expressly agree in a written instrument signed by them that the

work shall be considered a work made for hire. For the purpose

of the foregoing sentence, a "supplementary work" is a work

prepared for publication as a secondary adjunct to a work by

another author for the purpose of introducing, concluding,

illustrating, explaining, revising, commenting upon, or assisting

in the use of the other work, such as forewords, afterwords,

pictorial illustrations, maps, charts, tables, editorial notes,

musical arrangements, answer material for tests, bibliographies,

appendixes, and indexes, and an "instructional text" is a

literary, pictorial, or graphic work prepared for publication and

with the purpose of use in systematic instructional activities.

/*The work made for hire provision of the copyright code is

a major problem area. The U.S. Supreme Court has ruled that

unless someone is an employee in the traditional sense,

one from whom you withhold social security and withholding

and that works for a regular salary, are written agreement

is necessary for a work to be a work for hire. The owner

of a work for hire is the commissioning party.*/

S 102. Subject matter of copyright: In general

(a) Copyright protection subsists, in accordance with this title

[17 USC SS 101 et seq.], in original works of authorship fixed in

any tangible medium of expression, now known or later developed,

from which they can be perceived, reproduced, or otherwise

communicated, either directly or with the aid of a machine or

device. Works of authorship include the following categories:

(1) literary works;

(2) musical works, including any accompanying words;

(3) dramatic works, including any accompanying music;

(4) pantomimes and choreographic works;

(5) pictorial, graphic, and sculptural works;

(6) motion pictures and other audiovisual works; and

(7) sound recordings; and

(8) architectural works.

(b) In no case does copyright protection for an original work of

authorship extend to any idea, procedure, process, system, method

of operation, concept, principle, or discovery, regardless of the

form in which it is described, explained, illustrated, or

embodied in such work.

/* Why you can't copyright an algorithm.*/

S 103. Subject matter of copyright: Compilations and derivative

works

(a) The subject matter of copyright as specified by section 102

[17 USC S 102] includes compilations and derivative works, but

protection for a work employing preexisting material in which

copyright subsists does not extend to any part of the work in

which such material has been used unlawfully.

(b) The copyright in a compilation or derivative work extends

only to the material contributed by the author of such work, as

distinguished from the preexisting material employed in the work,

and does not imply any exclusive right in the preexisting

material. The copyright in such work is independent of, and does

not affect or enlarge the scope, duration, ownership, or

subsistence of, any copyright protection in the preexisting

material.

S 104. Subject matter of copyright. National origin

(a) Unpublished works.

The works specified by sections 102 and 103 [17 USC SS 103 and

103], while unpublished, are subject to protection under this

title [17 USC SS 101 et seq.] without regard to the nationality

or domicile of the author.

(b) Published works.

The works specified by sections 102 and 103 [17 USC SS 102 and

103], when published, are subject to protection under this title

[17 USC SS 101 et seq.] if --

(1) on the date of first publication, one or more of the authors

is a national or domiciliary of the United States, or is a

national, domiciliary, or sovereign authority of a foreign

nation that is a party to a copyright treaty to which the United

States is also a party, or is a stateless person, wherever that

person may be domiciled; or

(2) the work is first published in the United States or in a

foreign nation that, on the date of first publication, is a party

to the Universal Copyright Convention; or

(3) the work is first published by the United Nations or any of

its specialized agencies, or by the Organization of American

States; or

(4) the work is a Berne Convention work; or

(5) the work comes within the scope of a Presidential

proclamation. Whenever the President finds that a particular

foreign nation extends, to works by authors who are nationals or

domiciliaries of the United States or to works that are first

published in the United States, copyright protection on

substantially the same basis as that on which the foreign nation

extends protection to works of its own nationals and

domiciliaries and works first published in that nation, the

President may by proclamation extend protection under this title

[17 USC SS 101 et seq.] to works of which one or more of the

authors is, on the date of first publication, a national,

domiciliary, or sovereign authority of that nation, or which was

first published in that nation. The President may revise,

suspend, or revoke any such proclamation or impose any conditions

or limitations on protection under a proclamation.

S 105. Subject matter of copyright: United States Government

works

Copyright protection under this title [17 USC SS 101 et seq.] is

not available for any work of the United States Government, but

the United States Government is not precluded from receiving and

holding copyrights transferred to it by assignment, bequest, or

otherwise.

/* The United States has declared that works prepared by its

employees are free for use by anybody. Often governments will

claim copyrights.*/

S 106. Exclusive rights in copyrighted works

Subject to sections 107 through 120 [17 USC SS 107-118], the

owner of copyright under this title [17 USC SS 101 et seq.] has

the exclusive rights to do and to authorize any of the following:

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

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

(3) to distribute copies or phonorecords of the copyrighted work

to the public by sale or other transfer of ownership, or by

rental, lease, or lending;

(4) in the case of literary, musical, dramatic, and choreographic

works, pantomimes, and motion pictures and other audiovisual

works, to perform the copyrighted work publicly; and

(5) in the case of literary, musical, dramatic, and

choreographic works, pantomimes, and pictorial, graphic, or

sculptural works, including the individual images of a motion

picture or other audiovisual work, to display the copyrighted

work publicly.

/* Shareware consists of a partial waiver of the rights under

Section 106(1) and 106(3). The author allows others to reproduce

their program, and allows others to use "other transfers of

ownership" of copies. This section of the copyright code is why

$ 0 registration software still has copyright protection. The

"owner of copyright" still has the right to control their

software's reproduction. */