Complete Home & Office Legal Guide/Complete Home and Office Legal Guide (Chestnut) (1993).ISO/stat/fed/17ch1_3.asc

Text File | 1993-08-26 | 30.5 KB | 570 lines

/*  We continue on with Chapter 1 of the Copyright Code. Section
117 is specifically about computers!*/

S 114. Scope of exclusive rights in sound recordings

(a) The exclusive rights of the owner of copyright in a sound
recording are limited to the rights specified by clauses (1),
(2), and (3) of section 106 [17 USC S 106 (1)-(3)], and do not
include any right of performance under section 106(4) [17 USC  S
106(4)].

(b) The exclusive right of the owner of copyright in a sound
recording under clause (1) of section 106 [17 USC S 106(1)] is
limited to the right to duplicate the sound recording in the form
of phonorecords, or of copies of motion pictures and other
audiovisual works, that directly or indirectly recapture the
actual sounds fixed in the recording. The exclusive right of the
owner of copyright in a sound recording under clause (2) of
section 106 [17 USC S 106(2)] is limited to the right to prepare
a derivative work in which the actual sounds fixed in  the sound
recording are rearranged, remixed, or otherwise altered in
sequence  or quality.  The exclusive rights of the owner of
copyright in sound recording under clauses (1) and (2) of section
106 [17 USC S 106(1)  and (2)] do not extend to the making of
duplication of another sound recording that consists entirely of
an independent fixation of other sounds, even though such sounds
imitate or simulate those in the copyrighted sound recording. The
exclusive rights of the owner of copyright in a sound recording
under clause (1), (2), and (3) of section 106  [17  USC S
106(1)-(3)]  do not apply to sound recordings included in
educational television and radio programs (as defined in section
397 of title 47) [47 USC S 397] distributed or transmitted  by or
through public  broadcasting  entities (as defined  by section
118(g) [17 USC S 118(g)]), Provided, That copies or phonorecords
of said programs are not commercially distributed by or through
public broadcasting entities to the general public.

(c) This section does not limit or impair the exclusive right to
perform publicly, by means of a phonorecord, any of the works
specified by section 106(4) [17 USC S 106(4)].

(d) On January 3, 1978, the Register of Copyrights, after
consulting with representatives of owners of copyrighted
materials, representatives of the broadcasting, recording, motion
picture, entertainment industries, and arts organizations,
representatives of organized labor and performers of copyrighted
materials, shall submit to the Congress a report setting forth
recommendations as to whether this section should be amended to
provide for performers and copyright owners of copyrighted
material any performance rights in such material. The report
should describe the status of such rights in foreign countries,
the views of major interested parties, and specific legislative
or other recommendations, if any.

S  115. Scope of exclusive rights in nondramatic musical works:
Compulsory license for making and distributing phonorecords

In the case of nondramatic musical works, the exclusive rights
provided by clauses (1) and (3) of section 106 [17 USC  S
106(1)-(3)], to make and to distribute  phonorecords of such
works, are subject to compulsory licensing under the conditions
specified by this section.

(a) Availability and scope of compulsory license.  (1)  When
phonorecords of a nondramatic  musical  work have  been
distributed to the public in the United States under the
authority of the copyright owner, any other person may,  by
complying with the provisions of this  section,  obtain  a
compulsory license to make and distribute  phonorecords  of the
work.  A person may obtain a compulsory license only  if his or
her primary purpose in making  phonorecords is to distribute them
to the public for private use.  A person may not obtain a
compulsory license for use of the work in the making of
phonorecords duplicating a sound recording fixed by  another,
unless: (i) such sound  recording was fixed lawfully; and (ii)
the making of the phonorecords was authorized  by the owner of
copyright in the sound  recording, or, if the sound recording was
fixed before February  15, 1972, by any person who fixed the
sound recording  pursuant to an express license from the owner of
the copyright in the musical  work or pursuant to a valid
compulsory license  for use of such work in a sound recording.

(2) A compulsory license includes the privilege of making  a
musical arrangement of the work to the extent necessary  to
conform it to the style or manner of interpretation of  the
performance  involved, but the arrangement shall not  change the
basic melody or fundamental character of the work,  and shall not
be subject to protection as  a  derivative  work under this title
[17 USC SS 101 et seq.], except with  the express consent of the
copyright owner.

(b)  Notice of intention to obtain compulsory license. (1) Any
person who wishes to obtain a compulsory license under this
section  shall, before or within thirty days  after making, and
before distributing any phonorecords of the work, serve notice of
intention to do so on the copyright owner. If the registration or
other public records of the Copyright Office do  not identify the
copyright owner and include an  address at  which  notice can be
served, it shall be  sufficient to file  the notice of intention
in the Copyright Office.  The notice  shall comply, in form,
content, and manner of service, with requirements that the
Register of Copyrights shall prescribe by regulation.

(2)  Failure to serve or file the notice required by  clause
(1) forecloses the possibility of a compulsory license  and,
in  the absence of a negotiated license, renders the  making
and  distribution  of  phonorecords actionable  as  acts  of
infringement  under  section 501 [17 USC S 501]  and  fully
subject to the remedies provided by sections 502 through 506
and 509 [17 USC SS 502-506, 509].

(c) Royalty payable under compulsory license. (1) To be entitled
to receive royalties under a compulsory license, the copyright
owner must be identified in the registration or other public
records of the Copyright Office. The owner is entitled to
royalties for phonorecords made and  distributed  after  being
so identified, but is  not  entitled  to recover for any
phonorecords previously made and distributed.

(2)  Except as provided by clause (1), the royalty  under  a
compulsory  license shall be payable for  every  phonorecord made
and distributed in accordance with the  license.   For this
purpose, a phonorecord is considered "distributed"  if the person
exercising the compulsory license has voluntarily and permanently
parted with its possession.  With respect to each work embodied
in the phonorecord, the royalty shall  be either two and
three-fourth cents, or one-half of one  cent per minute of
playing time or fraction  thereof,  whichever amount is larger.

(3) Royalty payments shall be made on or before the twentieth
day of each month and shall include all  royalties  for the month
next preceding. Each monthly payment shall be made under oath and
shall comply with requirements that  the Register of Copyrights
shall prescribe by regulation. The Register shall  also
prescribe regulations  under which detailed cumulative annual
statements of account, certified by  a certified public
accountant, shall be filed for every compulsory license under
this section. The  regulations covering  both the  monthly and
the  annual  statements  of account  shall prescribe the form,
content, and  manner  of certification with respect to the number
of records made and the number of records distributed. (4)  If
the copyright owner does not  receive  the  monthly payment  and
monthly and annual statements of  account  when due, the owner
may give written notice to the licensee that, unless  the default
is remedied within thirty days from  the date of the notice, the
compulsory license will be automati- cally  terminated.   Such
termination  renders  either  the making or the distribution, or
both, of all phonorecords for which  the royalty has not been
paid, actionable as acts  of infringement  under  section 501 [17
USC S 501]  and  fully subject to the remedies provided by
sections 502 through 506 and 509 [17 USC SS 502-506, 509].

S  116.  Scope of exclusive rights in nondramatic musical  works:
Public Performances by means of coin-operated phonorecord players

(a) Limitation on exclusive right. In the case of a nondramatic
musical work embodied in a phonorecord, the exclusive right under
clause (4) of section 106 [17 USC S 106(4)] to perform the work
publicly by means of a coin-operated phonorecord player is
limited as follows:

(1) The proprietor of the establishment in which the  public
performance takes place is not liable for infringement  with
respect to such public performance unless --

(A) such proprietor is the operator of the  phonorecord
player; or

(B) such proprietor refuses or fails, within one month after
receipt by registered or certified mail of a request, at a time
during which the certificate required by clause (1)(C) of
subsection (b)  is  not affixed to the phonorecord player, by the
copyright owner, to make full disclosure,  by  registered or
certified mail, of the identity of the operator of the
phonorecord player.

(2) The operator of the coin-operated phonorecord player may
obtain a compulsory license to perform the work publicly  on that
phonorecord player by filing the application,  affixing the
certificate, and paying the royalties provided by subsection (b).

(b) Recordation of coin-operated phonorecord player, affixation
of certificate,  and royalty payable under  compulsory  license.
(1) Any operator who wishes to obtain a  compulsory license for
the public performance of works  on  a  coin- operated
phonorecord player shall fulfill the following requirements: (A)
Before or within one month after such  performances are made
available on a particular phonorecord  player, and during the
month of January in each succeeding year that  such  performances
are made  available  on  that particular phonorecord player, the
operator shall  file in   the   Copyright   Office,   in
accordance   with requirements  that  the Register of
Copyrights,  after consultation  with the Copyright Royalty
Tribunal  (if and  when  the Tribunal has  been  constituted),
shall prescribe by regulation, an application containing  the
name  and  address of the operator of  the  phonorecord player
and the manufacturer and serial number or  other explicit
identification of the phonorecord player,  and deposit  with the
Register of Copyrights a royalty  fee for  the calendar year of
$8 for that  particular  pho- norecord   player.   If  such
performances  are    made available  on a particular phonorecord
player  for  the first time after July 1 of any year, the royalty
fee to be  deposited for the remainder of that year  shall  be
$4. (B) Within twenty days of receipt of an application and a
royalty fee pursuant to subclause (A), the  Register of
Copyrights shall issue to the applicant a  certifi- cate for the
phonorecord player. (C)  On  or  before March 1 of the year  in
which  the certificate prescribed by subclause (B) of this
clause is  issued, or within ten days after the date of  issue of
the  certificate, the operator shall affix  to  the particular
phonorecord player, in a position where  it can be readily
examined by the public, the certificate, issued  by the Register
of Copyrights  under  subclause (B),  of the latest application
made by  such  operator under subclause (A) of this clause with
respect to that phonorecord player. (2)  Failure to file the
application, to affix the  certifi- cate,  or to pay the royalty
required by clause (1) of  this subsection  renders the public
performance actionable as  an act  of infringement under section
501 [17 USC S  501]  and fully  subject  to  the remedies
provided  by  sections  520 through 506 and 509 [17 USC SS
502-506, 509].

(c)  Distribution of royalties.  (1) 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 Copyright
Royalty Tribunal as  provided  by this  title  [17 USC SS 101 et
seq.].  The  Register shall submit to the  Copyright Royalty
Tribunal, on an annual basis,  a detailed statement of account
covering all fees received for the relevant period provided by
subsection (b).

(2)  During the month of January in each year, every person
claiming to be entitled to compulsory license fees under this
section shall file a claim with the Copyright Royalty Tribunal,
in accordance with requirements that the Tribunal shall prescribe
by regulation.  Such claim shall include  an agreement to accept
as final, except as provided in section 810 of this title [17 USC
S 810], the determination of  the Copyright Royalty Tribunal in
any controversy concerning the distribution of royalty fees
deposited under subclause  (A) of subsection (b)(1) of this
section to which the claimant is a party. Notwithstanding any
provisions of the antitrust laws, for purposes of this subsection
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.

(3) After the first day of October of each year, the Copyright
Royalty Tribunal shall determine whether there  exists a
controversy concerning the distribution of royalty fees deposited
under subclause (A) of subsection (b)(1). If the Tribunal
determines that no such controversy exists, it shall, after
deducting its reasonable administrative costs under  this
section, distribute such fees to  the  copyright owners entitled,
or to their designated agents.  If it finds that such a
controversy exists, it shall, pursuant to chapter 8 of this title
[17 USC SS 801 et  seq.],  conduct a proceeding to determine the
distribution of royalty fees. (4) The fees to be distributed
shall be divided as follows: (A)  to every copyright owner not
affiliated with a performing  rights society, the pro rata share
of the fees to be distributed to which such copyright owner
proves entitlement. (B)  to performing rights societies, the
remainder of the fees to be distributed in such pro rata shares
as they shall by agreement stipulate among themselves, or, if
they fail to agree, the pro rata share to which such performing
rights societies prove entitlement. (C) during the pendency of
any proceeding under this section, the Copyright Royalty Tribunal
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. (5) The Copyright Royalty Tribunal shall
promulgate regulations under which persons who can reasonably be
expected to have claims may, during the year in which
performances take place, without expense to or harassment  of
operators or proprietors of establishments in which phonorecord
players are located, have such access to such establishments and
to the phonorecord players located therein and such opportunity
to obtain information with respect thereto as may be reasonably
necessary to determine, by  sampling  procedures  or otherwise,
the proportion of contribution of the musical works of each such
person to the earnings of the phonorecord players  for which fees
shall have been deposited. Any person who alleges that he or she
has been denied the access permitted under the regulations
prescribed by the Copyright Royalty  Tribunal may bring an action
in the United States District Court for the District of Columbia
for the cancellation of the compulsory license of the phonorecord
player to  which such access has been denied, and the  court
shall have the power to declare the compulsory  license  thereof
invalid from the date of issue thereof.

(d)  Criminal penalties. Any person who knowingly makes a false
representation  of a material fact in an application filed under
clause (1)(A) of subsection (b), or who knowingly alters a
certificate  issued  under  clause  (1)(B)  of  subsection  (b)
or knowingly affixes such a certificate to a phonorecord player
other than the one it covers, shall be fined not more than
$2,500.

(e) Definitions. As used in this section, the  following  terms
and their variant forms mean the following:

(1)  A  "coin-operated phonorecord player" is a  machine  or
device that --

(A) is employed solely for the performance of nondramatic musical
works by means of phonorecords upon being activated by insertion
of coins,  currency, tokens, or other monetary units or their
equivalent;

(B) is located in an establishment making no direct or indirect
charge for admission; (C)  is accompanied by a list of the titles
of all  the musical  works available for performance on  it,
which list is affixed to the phonorecord player or posted  in the
establishment in a prominent position where it  can be readily
examined by the public; and (D) affords a choice of works
available for performance and permits the choice to be made by
the patrons of the establishment in which it is located.

(2)  An "operator" is any person who, alone or jointly with
others: (A) owns a coin-operated phonorecord player; or (B)  has
the power to make a coin-operated phonorecord player available
for placement in an establishment for purposes of public
performance; or (C) has the power to exercise primary control
over the selection of the musical works made available for public
performance on a coin-operated phonorecord player.


(3)  A  "performing rights society" is an association or
corporation that licenses the public performance of nondramatic
musical works on behalf of the copyright owners, such as the
American Society of Composers, Authors and Publishers, Broadcast
Music, Inc., and SESAC, Inc.

/* We begin with the original wording of this section; on Dec. 2,
1980, the Congress changed this section. The present wording of
this section follows second.*/

S 117. Scope  of exclusive rights:  Use  in  conjunction  with
computers and similar information systems [ORIGINAL TEXT, changed
on 12/12/80]

Notwithstanding the provisions of sections 106 through 116 and
118 [17 USC SS 106-116,118], this title [17 USC SS 101 et seq.]
does not afford to the owner of copyright in a work any greater
or lesser rights with respect to the use of the work in
conjunction  with  automatic  systems capable  of  storing,
processing, retrieving,  or transferring information, or in
conjunction  with any  similar device, machine, or process, than
those afforded  to works under the law, whether title 17 [17 USC
SS 101 et seq.] or the common law or statutes of a State, in
effect on December  31, 1977, as held applicable and construed by
a court in an action brought under this title [17 USC SS 101 et
seq.].

S 117. Scope of exlusive rights: Use in conjunction with
computers and similar information systems [PRESENT TEXT]

Notwithstanding the provisions of section 106, it is not an
infringement for the owner of a copy of a computer program to
make or authorize the making of another copy or adaptation of
that computer program provided:

(1) that such a new copy or adaptation is created as an
essential step to the utilization of the computer program
in conjunction with a machine and that it is used in no other
manner, or

(2) that such new copy or adaptation is for archival purposes
only and that all archival copies are destroyed in the event
that continued possession of the computer program should cease
to be rightful.

Any exact copies prepared in accordance with the provisions of
this section may be leased, sold, or otherwise transferred,
along with the copy from which such copies were prepared, only
as a part of the lease, sale, or other transfer of all rights
in the program. Adaptaions so prepared may be transferred only
with the authorization of the copyright owner.

/* This package contains all of the cases which we could find
that mention this section. What this section means is that back-
up copies of programs can be made, and that the original
purchaser can "adapt" the program, that is alter the object code
if needed, if it is needed for "an essential step in the use
of the program", whatever that means. (Sorry, little certainty
here!) Further, an adapted copy can only be used by the person
who created the adaptation. The section states a general rule
that computer programs may be sold in their entirety by an owner
to another. Of course this section refers to "owners" and on its
face it would seem that true leases of computer software would
not be covered. Much more problematic is "shrink wrap"
"licensing of computer programs." Cases that construe this
section are: Apple v. Formula, The Various Vault Software Cases,
GCA v. Chance, Micro-Sparc, Rand McNally. The Copyright tutorial
discusses this at length. */

S 118. Scope of exclusive rights: Use of certain works in
connection with noncommercial broadcasting

(a) The exclusive rights provided by section 106 [17 USC S  106]
shall, with respect to the works specified by subsection (b)  and
the  activities  specified by subsection (d), be subject  to  the
conditions and limitations prescribed by this section.

(b) Not later than thirty days after the Copyright Royalty
Tribunal has been constituted in accordance with section 802 [17
USC S 802], the Chairman of the Tribunal shall cause notice to be
published in the Federal Register of the initiation of
proceedings for the purpose of determining reasonable terms and
rates of royalty payments for the activities specified by
subsection (d)  with respect to  published nondramatic musical
works and published pictorial, graphic, and  sculptural works
during a period beginning as provided in clause  (3) of this
subsection and ending on December 31, 1982.  Copyright owners and
public broadcasting entities shall negotiate in good faith  and
cooperate fully with the Tribunal in an effort to reach
reasonable and expeditious results. Notwithstanding any provision
of the antitrust laws, any owners of copyright in works specified
by this subsection and any public broadcasting entities,
respectively,  may negotiate and agree upon the terms and rates
of royalty payments  and the proportionate division of fees paid
among various copyright owners, and may designate common agents
to negotiate, agree to, pay, or receive payments.

(1) Any owner of copyright in a work specified in this subsection
or any public broadcasting entity may, within one hundred and
twenty days after publication of the notice specified in this
subsection, submit to the Copyright Royalty Tribunal proposed
licenses covering such activities with respect to such works. The
Copyright Royalty Tribunal shall proceed on the basis of the
proposals submitted to it as  well as any other relevant
information. The Copyright Royalty Tribunal shall permit any
interested party to submit information relevant to such
proceedings.

(2) License agreements voluntarily negotiated at any time between
one or more copyright owners and one or more public broadcasting
entities shall be given effect in lieu of any determination by
the Tribunal:  Provided, That copies of such agreements are filed
in the Copyright Office within thirty days of execution in
accordance with regulations that the Register of Copyrights shall
prescribe.

(3) Within six months, but not earlier than one hundred  and
twenty days, from the date of publication of the notice specified
in this subsection the Copyright Royalty Tribunal shall make a
determination and publish in the Federal Register a schedule of
rates and terms which, subject  to clause (2) of this subsection,
shall be binding on all owners of copyright in works specified in
this subsection and public broadcasting entities, regardless of
whether or not such copyright owners and public broadcasting
entities have submitted proposals to the Tribunal. In
establishing such rates and terms the Copyright  Royalty Tribunal
may consider the rates for comparable circumstances under
voluntary  license  agreements  negotiated as provided in clause
(2) of this subsection. The Copyright Royalty Tribunal shall also
establish requirements by which copyright owners may  receive
reasonable notice of the use of their works under this section,
and under which records of such use shall be kept by public
broadcasting entities.

(4)  With respect to the period beginning on the effective date
of this title [17 USC SS 101 et seq.] and ending on the date of
publication of such rates and terms, this title [17 USC  SS 101
et seq.] shall not afford to owners of copyright  or public
broadcasting entities any greater or lesser rights with respect
to the activities  specified in subsection (d)  as applied  to
works specified in this subsection than those afforded under the
law in effect on December 31, 1977, as held applicable and
construed by a court in an action brought under this title [17
USC SS  101 et seq.].

(c) The initial procedure specified in subsection (b)  shall  be
repeated and concluded between June 30 and December 31, 1982, and
at five-year intervals thereafter, in accordance with regulations
that the Copyright Royalty Tribunal shall prescribe.

(d) Subject to the transitional provisions of subsection (b)(4),
and to the terms of any voluntary license agreements that have
been negotiated as provided by subsection (b)(2), a public
broadcasting entity may, upon compliance with the provisions of
this section, including the rates and terms established by the
Copyright Royalty Tribunal under subsection (b)(3), engage in the
following activities with respect to published nondramatic
musical works and published pictorial, graphic,  and  sculptural
works: (1) performance or display of work by or in the course of
a transmission  made by a noncommercial educational  broadcast
station referred to in subsection (g); and (2)  production of a
transmission program, reproduction  of copies  or phonorecords of
such a transmission program, and distribution  of  such copies or
phonorecords,  where  such production,  reproduction, or
distribution is made  by  a nonprofit institution or organization
solely for the purpose of transmissions specified in clause (1);
and (3) the making of reproductions by a governmental body or  a
nonprofit institution of a transmission program simultaneously
with its transmission as specified in clause (1), and the
performance or display of the contents of such program  under
the conditions specified by  clause  (1)  of section  110 [17 USC
S 110], but only if the  reproductions are used  for performances
or displays for a period  of  no more than  seven  days from the
date  of  the  transmission specified in clause (1), and are
destroyed before or at  the end of such period.  No person
supplying, in accordance with clause  (2),  a reproduction of a
transmission program to governmental  bodies or nonprofit
institutions under this clause shall have any liability as a
result of failure  of such body  or  institution to  destroy
such  reproduction: Provided, That it shall have notified such
body or  institution of  the requirement for such destruction
pursuant to this clause:  And provided further, That if such body
or institution itself  fails to destroy such reproduction it
shall be deemed to have infringed.

(e) Except as expressly provided in this subsection, this section
shall have no applicability to works other than those  specified
in subsection (b). (1)  Owners of copyright in nondramatic
literary  works  and public  broadcasting  entities  may, during
the  course  of voluntary    negotiations,     agree    among
themselves, respectively, as to the terms and rates of royalty
payments without liability under the antitrust laws.  Any such
terms and rates of royalty payments shall be effective upon
filing in the Copyright Office, in accordance with regulations
that the Register of Copyrights shall prescribe. (2)  On January
3, 1980, the Register of  Copyrights,  after consulting  with
authors and other owners of  copyright  in nondramatic  literary
works and their  representatives,  and with public broadcasting
entities and their representatives, shall  submit  to the
Congress a report  setting  forth  the extent  to which voluntary
licensing arrangements have  been reached  with  respect to the
use  of  nondramatic  literary works  by such broadcast stations.
The report  should  also describe  any  problems that may have
arisen,  and  present legislative or other recommendations, if
warranted.

(f) Nothing in this section shall be construed to permit,  beyond
the limits of fair use as provided by section 107  [17  USC  S
107], the unauthorized dramatization of a  nondramatic  musical
work, the production  of a transmission program  drawn  to  any
substantial extent  from a published compilation  of  pictorial,
graphic, or sculptural works, or the unauthorized  use  of  any
portion of an audiovisual work.

(g) As used in this section, the term "public broadcasting
entity" means a noncommercial educational broadcast station  as
defined in section  397 of title 47 [47 USC S 397] and any
nonprofit institution or organization engaged in the activities

Section 120. Scope of exclusive rights in architectural works

(a) Pictorial representations permitted.-- The copyright in an
architectural work that has been constructed does not include the
right to prevent the making, distributing, or public display or
pircutres, paintings, photographs, or other pictorial
representations of the work, if the building in which the work is
emboided is located in or ordinarily visible from a public place.

(b) Alterations to and destruction of buildings.--

Notwithstanding the provisions of section 106(2), the owners of a
building embodying an archetectural work may, without the consent
of the autor or copyright owner of the architectural work, make
or authorize themaking of alterations to such building, and
destroy or authorize the destruction of such building.