Complete Home & Office Legal Guide/Complete Home and Office Legal Guide (Chestnut) (1993).ISO/stat/fed/17ch1.asc

Text File | 1993-08-26 | 24.1 KB | 530 lines

/*  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. */