17 U.S.C. § 117 — Limitations on exclusive rights: Computer

Page 106 TITLE 17—COPYRIGHTS [§ 116A 1 See References in Text note below. EFFECTIVE DATE Section effective Mar. 1, 1989, with any cause of ac- tion arising under this title before such date being gov- erned by provisions as in effect when cause of action arose, see section 13 of Pub. L. 100–568, set out as an Ef- fective Date of 1988 Amendment note under section 101 of this title. [§ 116A. Renumbered § 116] § 117. Limitations on exclusive rights: Computer programs (a) MAKING OF ADDITIONAL COPY OR ADAPTA- TION BY OWNER OF COPY.—Notwithstanding the provisions of section 106, it is not an infringe- ment for the owner of a copy of a computer pro- gram to make or authorize the making of an- other copy or adaptation of that computer pro- gram provided: (1) that such a new copy or adaptation is cre- ated as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other man- ner, or (2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that contin- ued possession of the computer program should cease to be rightful. (b) LEASE, SALE, OR OTHER TRANSFER OF ADDI- TIONAL COPY OR ADAPTATION.—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 part of the lease, sale, or other transfer of all rights in the program. Adaptations so prepared may be trans- ferred only with the authorization of the copy- right owner. (c) MACHINE MAINTENANCE OR REPAIR.—Not- withstanding the provisions of section 106, it is not an infringement for the owner or lessee of a machine to make or authorize the making of a copy of a computer program if such copy is made solely by virtue of the activation of a ma- chine that lawfully contains an authorized copy of the computer program, for purposes only of maintenance or repair of that machine, if— (1) such new copy is used in no other manner and is destroyed immediately after the main- tenance or repair is completed; and (2) with respect to any computer program or part thereof that is not necessary for that ma- chine to be activated, such program or part thereof is not accessed or used other than to make such new copy by virtue of the activa- tion of the machine. (d) DEFINITIONS.—For purposes of this sec- tion— (1) the ‘‘maintenance’’ of a machine is the servicing of the machine in order to make it work in accordance with its original specifica- tions and any changes to those specifications authorized for that machine; and (2) the ‘‘repair’’ of a machine is the restoring of the machine to the state of working in ac- cordance with its original specifications and any changes to those specifications authorized for that machine. (Pub. L. 94–553, title I, § 101, Oct. 19, 1976, 90 Stat. 2565; Pub. L. 96–517, § 10(b), Dec. 12, 1980, 94 Stat. 3028; Pub. L. 105–304, title III, § 302, Oct. 28, 1998, 112 Stat. 2887.) HISTORICAL AND REVISION NOTES HOUSE REPORT NO. 94–1476 As the program for general revision of the copyright law has evolved, it has become increasingly apparent that in one major area the problems are not suffi- ciently developed for a definitive legislative solution. This is the area of computer uses of copyrighted works: the use of a work ‘‘in conjunction with automatic sys- tems capable of storing, processing, retrieving, or transferring information.’’ The Commission on New Technological Uses is, among other things, now en- gaged in making a thorough study of the emerging pat- terns in this field and it will, on the basis of its find- ings, recommend definitive copyright provisions to deal with the situation. Since it would be premature to change existing law on computer uses at present, the purpose of section 117 is to preserve the status quo. It is intended neither to cut off any rights that may now exist, nor to create new rights that might be denied under the Act of 1909 or under common law principles currently applicable. The provision deals only with the exclusive rights of a copyright owner with respect to computer uses, that is, the bundle of rights specified for other types of uses in section 106 and qualified in sections 107 through 116 and 118. With respect to the copyright-ability of com- puter programs, the ownership of copyrights in them, the term of protection, and the formal requirements of the remainder of the bill, the new statute would apply. Under section 117, an action for infringement of a copyrighted work by means of a computer would nec- essarily be a federal action brought under the new title 17. The court, in deciding the scope of exclusive rights in the computer area, would first need to determine the applicable law, whether State statutory or common law or the Act of 1909. Having determined what law was ap- plicable, its decision would depend upon its interpreta- tion of what that law was on the point on the day be- fore the effective date of the new statute. Editorial Notes AMENDMENTS 1998—Pub. L. 105–304 designated existing provisions as subsecs. (a) and (b), inserted headings, and added sub- secs. (c) and (d). 1980—Pub. L. 96–517 substituted provision respecting limitations on exclusive rights in connection with com- puter programs for prior provision enunciating scope of exclusive rights and use of the work in conjunction with computers and similar information systems and declaring owner of copyright in a work without 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 informa- tion, or in conjunction with any similar device, ma- chine, or process, than those afforded to works under the law, whether this title or the common law or stat- utes of a State, in effect on Dec. 31, 1977, as held appli- cable and construed by the court in an action brought under this title. § 118. Scope of exclusive rights: Use of certain works in connection with noncommercial broadcasting (a) The exclusive rights provided by section 106 shall, with respect to the works specified by subsection (b) and the activities specified by subsection (d),1 be subject to the conditions and limitations prescribed by this section. (b) Notwithstanding any provision of the anti- trust laws, any owners of copyright in published