17 U.S.C. § 109 — Limitations on exclusive rights: Effect of

Page 34 TITLE 17—COPYRIGHTS § 109 record 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’’. Subsec. (b). Pub. L. 105–304, § 404(2), substituted ‘‘three copies or phonorecords’’ for ‘‘a copy or phonorecord’’, struck out ‘‘in facsimile form’’ after ‘‘duplicated’’, and substituted ‘‘if— ‘‘(1) the copy or phonorecord reproduced is cur- rently in the collections of the library or archives; and ‘‘(2) any such copy or phonorecord that is repro- duced 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.’’ for ‘‘if the copy or phonorecord reproduced is currently in the collections of the library or archives.’’ Subsec. (c). Pub. L. 105–304, § 404(3), substituted ‘‘three copies or phonorecords’’ for ‘‘a copy or phonorecord’’, struck out ‘‘in facsimile form’’ after ‘‘duplicated’’, in- serted ‘‘or if the existing format in which the work is stored has become obsolete,’’ after ‘‘stolen,’’, sub- stituted ‘‘if— ‘‘(1) the library or archives has, after a reasonable effort, determined that an unused replacement can- not be obtained at a fair price; and ‘‘(2) any such copy or phonorecord that is repro- duced in digital format is not made available to the public in that format outside the premises of the li- brary or archives in lawful possession of such copy.’’ for ‘‘if the library or archives has, after a reasonable ef- fort, determined that an unused replacement cannot be obtained at a fair price.’’, and inserted concluding pro- visions. Subsecs. (h), (i). Pub. L. 105–298 added subsec. (h) and redesignated former subsec. (h) as (i). 1997—Subsec. (e). Pub. L. 105–80 substituted ‘‘fair price’’ for ‘‘pair price’’ in introductory provisions. 1992—Subsec. (i). Pub. L. 102–307 struck out subsec. (i), which read as follows: ‘‘Five years from the effec- tive date of this Act, and at five-year intervals there- after, the Register of Copyrights, after consulting with representatives of authors, book and periodical pub- lishers, and other owners of copyrighted materials, and with representatives of library users and librarians, shall submit to the Congress a report setting forth the extent to which this section has achieved the intended statutory balancing of the rights of creators, and the needs of users. The report should also describe any problems that may have arisen, and present legislative or other recommendations, if warranted.’’ Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1998 AMENDMENTS Pub. L. 105–304, title IV, § 407, Oct. 28, 1998, 112 Stat. 2905, provided that: ‘‘Except as otherwise provided in this title [enacting section 4001 of Title 28, Judiciary and Judicial Procedure, amending this section, sections 112, 114, 701, and 801 to 803 of this title, section 5314 of Title 5, Government Organization and Employees, and section 3 of Title 35, Patents, and enacting provisions set out as notes under sections 112 and 114 of this title], this title and the amendments made by this title shall take effect on the date of the enactment of this Act [Oct. 28, 1998].’’ Pub. L. 105–298, title I, § 106, Oct. 27, 1998, 112 Stat. 2829, provided that: ‘‘This title [amending this section and sections 203 and 301 to 304 of this title, enacting provisions set out as a note under section 101 of this title, and amending provisions set out as notes under sections 101 and 304 of this title] and the amendments made by this title shall take effect on the date of the enactment of this Act [Oct. 27, 1998].’’ § 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 phono- record 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 sec- tion 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 oth- erwise 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 com- puter 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 lend- ing. Nothing in the preceding sentence shall apply to the rental, lease, or lending of a phono- record for nonprofit purposes by a nonprofit li- brary 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 in- stitution or to faculty, staff, and students does not constitute rental, lease, or lending for direct or indirect commercial purposes under this sub- section. (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 com- puter that is designed for playing video games and may be designed for other purposes. (C) Nothing in this subsection affects any pro- vision 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 li- brary has affixed to the packaging containing the program a warning of copyright in accord- ance with requirements that the Register of Copyrights shall prescribe by regulation. Page 35 TITLE 17—COPYRIGHTS § 109 (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 con- siders appropriate, the Register of Copyrights, after consultation with representatives of copy- right owners and librarians, shall submit to the Congress a report stating whether this para- graph has achieved its intended purpose of main- taining the integrity of the copyright system while providing nonprofit libraries the capa- bility to fulfill their function. Such report shall advise the Congress as to any information or recommendations that the Register of Copy- rights considers necessary to carry out the pur- poses 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 com- petition. (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 in- fringer of copyright under section 501 of this title and is subject to the remedies set forth in sections 502, 503, 504, and 505. Such violation shall not be a criminal offense under section 506 or cause such person to be subject to the crimi- nal 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 author- ity 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 copy- right owner, extend to any person who has ac- quired 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-oper- ated 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 dis- play that game in coin-operated equipment, ex- cept 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. (Pub. L. 94–553, title I, § 101, Oct. 19, 1976, 90 Stat. 2548; Pub. L. 98–450, § 2, Oct. 4, 1984, 98 Stat. 1727; Pub. L. 100–617, § 2, Nov. 5, 1988, 102 Stat. 3194; Pub. L. 101–650, title VIII, §§ 802, 803, Dec. 1, 1990, 104 Stat. 5134, 5135; Pub. L. 103–465, title V, § 514(b), Dec. 8, 1994, 108 Stat. 4981; Pub. L. 105–80, § 12(a)(5), Nov. 13, 1997, 111 Stat. 1534; Pub. L. 110–403, title II, § 209(a)(1), Oct. 13, 2008, 122 Stat. 4264.) HISTORICAL AND REVISION NOTES HOUSE REPORT NO. 94–1476 Effect on Further Disposition of Copy or Phono- record. Section 109(a) restates and confirms the prin- ciple that, where the copyright owner has transferred ownership of a particular copy or phonorecord of a work, the person to whom the copy or phonorecord is transferred is entitled to dispose of it by sale, rental, or any other means. Under this principle, which has been established by the court decisions and section 27 of the present law [section 27 of former title 17], the copyright owner’s exclusive right of public distribution would have no effect upon anyone who owns ‘‘a particular copy or phonorecord lawfully made under this title’’ and who wishes to transfer it to someone else or to de- stroy it. Thus, for example, the outright sale of an authorized copy of a book frees it from any copyright control over its resale price or other conditions of its future disposi- tion. A library that has acquired ownership of a copy is entitled to lend it under any conditions it chooses to impose. This does not mean that conditions on future disposition of copies or phonorecords, imposed by a contract between their buyer and seller, would be unen- forceable between the parties as a breach of contract, but it does mean that they could not be enforced by an action for infringement of copyright. Under section 202 however, the owner of the physical copy or phonorecord cannot reproduce or perform the copyrighted work pub- licly without the copyright owner’s consent. To come within the scope of section 109(a), a copy or phonorecord must have been ‘‘lawfully made under this title,’’ though not necessarily with the copyright own- er’s authorization. For example, any resale of an ille- gally ‘‘pirated’’ phonorecord would be an infringement, but the disposition of a phonorecord legally made under the compulsory licensing provisions of section 115 would not. Effect on Display of Copy. Subsection (b) of section 109 deals with the scope of the copyright owner’s exclu- sive right to control the public display of a particular ‘‘copy’’ of a work (including the original or prototype copy in which the work was first fixed). Assuming, for example, that a painter has sold the only copy of an original work of art without restrictions, would it be possible for him to restrain the new owner from dis- playing it publicly in galleries, shop windows, on a pro- jector, or on television? Section 109(b) adopts the general principle that the lawful owner of a copy of a work should be able to put his copy on public display without the consent of the copyright owner. As in cases arising under section 109(a), this does not mean that contractual restrictions on display between a buyer and seller would be unen- forceable as a matter of contract law. The exclusive right of public display granted by sec- tion 106(5) would not apply where the owner of a copy wishes to show it directly to the public, as in a gallery or display case, or indirectly, as through an opaque projector. Where the copy itself is intended for projec- tion, as in the case of a photographic slide, negative, or transparency, the public projection of a single image would be permitted as long as the viewers are ‘‘present at the place where the copy is located.’’ On the other hand, section 109(b) takes account of the potentialities of the new communications media, nota- bly television, cable and optical transmission devices, and information storage and retrieval devices, for re- placing printed copies with visual images. First of all, the public display of an image of a copyrighted work would not be exempted from copyright control if the copy from which the image was derived were outside the presence of the viewers. In other words, the display of a visual image of a copyrighted work would be an in- fringement if the image were transmitted by any meth- od (by closed or open circuit television, for example, or by a computer system) from one place to members of the public located elsewhere. Moreover, the exemption would extend only to public displays that are made ‘‘either directly or by the pro- Page 36 TITLE 17—COPYRIGHTS § 109 jection of no more than one image at a time.’’ Thus, even where the copy and the viewers are located at the same place, the simultaneous projection of multiple images of the work would not be exempted. For exam- ple, where each person in a lecture hall is supplied with a separate viewing apparatus, the copyright owner’s permission would generally be required in order to project an image of a work on each individual screen at the same time. The committee’s intention is to preserve the tradi- tional privilege of the owner of a copy to display it di- rectly, but to place reasonable restrictions on the abil- ity to display it indirectly in such a way that the copy- right owner’s market for reproduction and distribution of copies would be affected. Unless it constitutes a fair use under section 107, or unless one of the special provi- sions of section 110 or 111 is applicable, projection of more than one image at a time, or transmission of an image to the public over television or other commu- nication channels, would be an infringement for the same reasons that reproduction in copies would be. The concept of ‘‘the place where the copy is located’’ is gen- erally intended to refer to a situation in which the viewers are present in the same physical surroundings as the copy, even though they cannot see the copy di- rectly. Effect of Mere Possession of Copy or Phonorecord. Subsection (c) of section 109 qualifies the privileges specified in subsections (a) and (b) by making clear that they do not apply to someone who merely pos- sesses a copy or phonorecord without having acquired ownership of it. Acquisition of an object embodying a copyrighted work by rental, lease, loan, or bailment carries with it no privilege to dispose of the copy under section 109(a) or to display it publicly under section 109(b). To cite a familiar example, a person who has rented a print of a motion picture from the copyright owner would have no right to rent it to someone else without the owner’s permission. Burden of Proof in Infringement Actions. During the course of its deliberations on this section, the Commit- tee’s attention was directed to a recent court decision holding that the plaintiff in an infringement action had the burden of establishing that the allegedly infringing copies in the defendant’s possession were not lawfully made or acquired under section 27 of the present law [section 27 of former title 17]. American International Pictures, Inc. v. Foreman, 400 F.Supp. 928 (S.D.Alabama 1975). The Committee believes that the court’s decision, if followed, would place a virtually impossible burden on copyright owners. The decision is also inconsistent with the established legal principle that the burden of proof should not be placed upon a litigant to establish facts particularly within the knowledge of his adver- sary. The defendant in such actions clearly has the par- ticular knowledge of how possession of the particular copy was acquired, and should have the burden of pro- viding this evidence to the court. It is the intent of the Committee, therefore, that in an action to determine whether a defendant is entitled to the privilege estab- lished by section 109(a) and (b), the burden of proving whether a particular copy was lawfully made or ac- quired should rest on the defendant. Editorial Notes REFERENCES IN TEXT The date of the enactment of the Computer Software Rental Amendments Act of 1990, referred to in subsec. (b)(2)(B), is the date of enactment of Pub. L. 101–650, which was approved Dec. 1, 1990. The first section of the Clayton Act, referred to in subsec. (b)(3), is classified to section 12 of Title 15, Com- merce and Trade, and section 53 of Title 29, Labor. The term ‘‘antitrust laws’’ is defined in section 12 of Title 15. Section 5 of the Federal Trade Commission Act, re- ferred to in subsec. (b)(3), is classified to section 45 of Title 15. AMENDMENTS 2008—Subsec. (b)(4). Pub. L. 110–403 substituted ‘‘and 505’’ for ‘‘505, and 509’’. 1997—Subsec. (b)(2)(B). Pub. L. 105–80 substituted ‘‘Register of Copyrights considers appropriate’’ for ‘‘Register of Copyright considers appropriate’’. 1994—Subsec. (a). Pub. L. 103–465 inserted at end ‘‘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 reli- ance parties, before publication or service of notice under section 104A(e), may be sold or otherwise dis- posed 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 Reg- ister 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.’’ 1990—Subsec. (b)(1). Pub. L. 101–650, § 802(2), added par. (1) and struck out former par. (1) which read as follows: ‘‘Notwithstanding the provisions of subsection (a), un- less authorized by the owners of copyright in the sound recording and in the musical works embodied therein, the owner of a particular phonorecord may not, for pur- poses of direct or indirect commercial advantage, dis- pose of, or authorize the disposal of, the possession of that phonorecord 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.’’ Subsec. (b)(2), (3). Pub. L. 101–650, § 802(1), (2), added par. (2) and redesignated former pars. (2) and (3) as (3) and (4), respectively. Subsec. (b)(4). Pub. L. 101–650, § 802(3), added par. (4) and struck out former par. (4) which read as follows: ‘‘Any person who distributes a phonorecord in violation of clause (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 pen- alties set forth in section 2319 of title 18.’’ Pub. L. 101–650, § 802(1), redesignated par. (3) as (4). Subsec. (e). Pub. L. 101–650, § 803, added subsec. (e). 1988—Subsec. (d). Pub. L. 100–617 substituted ‘‘(a) and (c)’’ for ‘‘(a) and (b)’’ and ‘‘copyright’’ for ‘‘coyright’’. 1984—Subsecs. (b) to (d). Pub. L. 98–450 added subsec. (b) and redesignated existing subsecs. (b) and (c) as (c) and (d), respectively. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1990 AMENDMENT Pub. L. 101–650, title VIII, § 804, Dec. 1, 1990, 104 Stat. 5136, as amended by Pub. L. 103–465, title V, § 511, Dec. 8, 1994, 108 Stat. 4974, provided that: ‘‘(a) IN GENERAL.—Subject to subsection (b), this title [amending this section and enacting provisions set out as notes under sections 101 and 205 of this title] and the amendments made in section 802 [amending this sec- tion] shall take effect on the date of the enactment of this Act [Dec. 1, 1990]. The amendment made by section 803 [amending this section] shall take effect one year after such date of enactment. ‘‘(b) PROSPECTIVE APPLICATION.—Section 109(b) of title 17, United States Code, as amended by section 802 of this Act, shall not affect the right of a person in pos- session of a particular copy of a computer program, who acquired such copy before the date of the enact- ment of this Act [Dec. 1, 1990], to dispose of the posses- sion of that copy on or after such date of enactment in any manner permitted by section 109 of title 17, United Page 37 TITLE 17—COPYRIGHTS § 110 States Code, as in effect on the day before such date of enactment. ‘‘(c) TERMINATION.—The amendments made by section 803 shall not apply to public performances or displays that occur on or after October 1, 1995.’’ EFFECTIVE DATE OF 1984 AMENDMENT Pub. L. 98–450, § 4, Oct. 4, 1984, 98 Stat. 1728, as amend- ed by Pub. L. 100–617, § 1, Nov. 5, 1988, 102 Stat. 3194; Pub. L. 103–182, title III, § 332, Dec. 8, 1993, 107 Stat. 2114, provided that: ‘‘(a) The amendments made by this Act [amending this section and section 115 of this title and enacting provisions set out as a note under section 101 of this title] shall take effect on the date of the enactment of this Act [Oct. 4, 1984]. ‘‘(b) The provisions of section 109(b) of title 17, United States Code, as added by section 2 of this Act, shall not affect the right of an owner of a particular phonorecord of a sound recording, who acquired such ownership be- fore the date of the enactment of this Act [Oct. 4, 1984], to dispose of the possession of that particular phono- record on or after such date of enactment in any man- ner permitted by section 109 of title 17, United States Code, as in effect on the day before the date of the en- actment of this Act.’’ [Amendment by Pub. L. 103–182 to section 4 of Pub. L. 98–450, set out above, effective on the date the North American Free Trade Agreement enters into force with respect to the United States (Jan. 1, 1994), see section 335 of Pub. L. 103–182, formerly set out as an Effective Date of 1993 Amendment note under section 1052 of Title 15, Commerce and Trade.] EVALUATION OF IMPACT OF COPYRIGHT LAW AND AMENDMENTS ON ELECTRONIC COMMERCE AND TECH- NOLOGICAL DEVELOPMENT Pub. L. 105–304, title I, § 104, Oct. 28, 1998, 112 Stat. 2876, provided that: ‘‘(a) EVALUATION BY THE REGISTER OF COPYRIGHTS AND THE ASSISTANT SECRETARY FOR COMMUNICATIONS AND IN- FORMATION.—The Register of Copyrights and the Assist- ant Secretary for Communications and Information of the Department of Commerce shall jointly evaluate— ‘‘(1) the effects of the amendments made by this title [enacting chapter 12 of this title and amending sections 101, 104, 104A, 411, and 507 of this title] and the development of electronic commerce and associ- ated technology on the operation of sections 109 and 117 of title 17, United States Code; and ‘‘(2) the relationship between existing and emergent technology and the operation of sections 109 and 117 of title 17, United States Code. ‘‘(b) REPORT TO CONGRESS.—The Register of Copy- rights and the Assistant Secretary for Communications and Information of the Department of Commerce shall, not later than 24 months after the date of the enact- ment of this Act [Oct. 28, 1998], submit to the Congress a joint report on the evaluation conducted under sub- section (a), including any legislative recommendations the Register and the Assistant Secretary may have.’’ § 110. Limitations on exclusive rights: Exemption of certain performances and displays Notwithstanding the provisions of section 106, the following are not infringements of copy- right: (1) performance or display of a work by in- structors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place de- voted to instruction, unless, in the case of a motion picture or other audiovisual work, the performance, or the display of individual im- ages, 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) except with respect to a work produced or marketed primarily for performance or display as part of mediated instructional activities transmitted via digital networks, or a per- formance or display that is given by means of a copy or phonorecord that is not lawfully made and acquired under this title, and the transmitting government body or accredited nonprofit educational institution knew or had reason to believe was not lawfully made and acquired, the performance of a nondramatic literary or musical work or reasonable and limited portions of any other work, or display of a work in an amount comparable to that which is typically displayed in the course of a live classroom session, by or in the course of a transmission, if— (A) the performance or display is made by, at the direction of, or under the actual su- pervision of an instructor as an integral part of a class session offered as a regular part of the systematic mediated instructional ac- tivities of a governmental body or an accred- ited nonprofit educational institution; (B) the performance or display is directly related and of material assistance to the teaching content of the transmission; (C) the transmission is made solely for, and, to the extent technologically feasible, the reception of such transmission is limited to— (i) students officially enrolled in the course for which the transmission is made; or (ii) officers or employees of govern- mental bodies as a part of their official du- ties or employment; and (D) the transmitting body or institution— (i) institutes policies regarding copy- right, provides informational materials to faculty, students, and relevant staff mem- bers that accurately describe, and promote compliance with, the laws of the United States relating to copyright, and provides notice to students that materials used in connection with the course may be subject to copyright protection; and (ii) in the case of digital transmissions— (I) applies technological measures that reasonably prevent— (aa) retention of the work in acces- sible form by recipients of the trans- mission from the transmitting body or institution for longer than the class session; and (bb) unauthorized further dissemina- tion of the work in accessible form by such recipients to others; and (II) does not engage in conduct that could reasonably be expected to interfere with technological measures used by copyright owners to prevent such reten- tion or unauthorized further dissemina- tion; (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;