17 U.S.C. § 112 — Limitations on exclusive rights: Ephemeral

Page 58 TITLE 17—COPYRIGHTS § 112 ‘‘(c) TRANSFER OF APPROPRIATIONS.—All unexpended balances of appropriations made to the Copyright Roy- alty Tribunal, as of the effective date of this Act, are transferred on such effective date to the Copyright Of- fice for use by the Copyright Office for the purposes for which such appropriations were made.’’ EFFECTIVE DATE OF 1990 AMENDMENT Pub. L. 101–318, § 3(e)(1), July 3, 1990, 104 Stat. 289, pro- vided that: ‘‘The amendments made by subsections (a) and (b) [amending this section and section 801 of this title] shall be effective as of August 27, 1986.’’ EFFECTIVE DATE OF 1988 AMENDMENT Amendment by Pub. L. 100–667 effective Jan. 1, 1989, see section 206 of Pub. L. 100–667, set out as an Effective Date note under section 119 of this title. SAVINGS PROVISION Pub. L. 111–175, title III, § 306, May 27, 2010, 124 Stat. 1257, provided that: ‘‘(a) IN GENERAL.—Nothing in this Act [see Short Title of 2010 Amendment note set out under section 101 of this title], title 17, United States Code, the Commu- nications Act of 1934 [47 U.S.C. 151 et seq.], regulations promulgated by the Register of Copyrights under this title or title 17, United States Code, or regulations pro- mulgated by the Federal Communications Commission under this Act or the Communications Act of 1934 shall be construed to prevent a multichannel video program- ming distributor from retransmitting a performance or display of a work pursuant to an authorization granted by the copyright owner or, if within the scope of its au- thorization, its licensee. ‘‘(b) LIMITATION.—Nothing in subsection (a) shall be construed to affect any obligation of a multichannel video programming distributor under section 325(b) of the Communications Act of 1934 [47 U.S.C. 325(b)] to ob- tain the authority of a television broadcast station be- fore retransmitting that station’s signal.’’ SEVERABILITY Pub. L. 113–200, title III, § 301, Dec. 4, 2014, 128 Stat. 2067, provided that: ‘‘If any provision of this Act [see Short Title of 2014 Amendment note set out under sec- tion 609 of Title 47, Telecommunications], an amend- ment made by this Act, or the application of such pro- vision or amendment to any person or circumstance is held to be unconstitutional, the remainder of this Act, the amendments made by this Act, and the application of such provision or amendment to any person or cir- cumstance shall not be affected thereby.’’ Pub. L. 111–175, title IV, § 401, May 27, 2010, 124 Stat. 1258, provided that: ‘‘If any provision of this Act [see Short Title of 2010 Amendment note set out under sec- tion 101 of this title], an amendment made by this Act, or the application of such provision or amendment to any person or circumstance is held to be unconstitu- tional, the remainder of this Act, the amendments made by this Act, and the application of such provision or amendment to any person or circumstance shall not be affected thereby.’’ CONSTRUCTION Pub. L. 111–175, title I, § 108, May 27, 2010, 124 Stat. 1245, provided that: ‘‘Nothing in section 111, 119, or 122 of title 17, United States Code, including the amend- ments made to such sections by this title, shall be con- strued to affect the meaning of any terms under the Communications Act of 1934 [47 U.S.C. 151 et seq.], ex- cept to the extent that such sections are specifically cross-referenced in such Act or the regulations issued thereunder.’’ § 112. Limitations on exclusive rights: Ephemeral recordings (a)(1) Notwithstanding the provisions of sec- tion 106, and except in the case of a motion pic- ture or other audiovisual work, it is not an in- fringement of copyright for a transmitting orga- nization entitled to transmit to the public a per- formance or display of a work, under a license, including a statutory license under section 114(f), or transfer of the copyright or under the limitations on exclusive rights in sound record- ings specified by section 114(a), or for a trans- mitting organization that is a broadcast radio or television station licensed as such by the Fed- eral Communications Commission and that makes a broadcast transmission of a perform- ance of a sound recording in a digital format on a nonsubscription basis, to make no more than one copy or phonorecord of a particular trans- mission program embodying the performance or display, if— (A) the copy or phonorecord is retained and used solely by the transmitting organization that made it, and no further copies or phonorecords are reproduced from it; and (B) the copy or phonorecord is used solely for the transmitting organization’s own trans- missions within its local service area, or for purposes of archival preservation or security; and (C) unless preserved exclusively for archival purposes, the copy or phonorecord is destroyed within six months from the date the trans- mission program was first transmitted to the public. (2) In a case in which a transmitting organiza- tion entitled to make a copy or phonorecord under paragraph (1) in connection with the transmission to the public of a performance or display of a work is prevented from making such copy or phonorecord by reason of the applica- tion by the copyright owner of technical meas- ures that prevent the reproduction of the work, the copyright owner shall make available to the transmitting organization the necessary means for permitting the making of such copy or pho- norecord as permitted under that paragraph, if it is technologically feasible and economically reasonable for the copyright owner to do so. If the copyright owner fails to do so in a timely manner in light of the transmitting organiza- tion’s reasonable business requirements, the transmitting organization shall not be liable for a violation of section 1201(a)(1) of this title for engaging in such activities as are necessary to make such copies or phonorecords as permitted under paragraph (1) of this subsection. (b) Notwithstanding the provisions of section 106, it is not an infringement of copyright for a governmental body or other nonprofit organiza- tion entitled to transmit a performance or dis- play of a work, under section 110(2) or under the limitations on exclusive rights in sound record- ings specified by section 114(a), to make no more than thirty copies or phonorecords of a par- ticular transmission program embodying the performance or display, if— (1) no further copies or phonorecords are re- produced from the copies or phonorecords made under this clause; and (2) except for one copy or phonorecord that may be preserved exclusively for archival pur- poses, the copies or phonorecords are de- stroyed within seven years from the date the transmission program was first transmitted to the public. Page 59 TITLE 17—COPYRIGHTS § 112 (c) Notwithstanding the provisions of section 106, it is not an infringement of copyright for a governmental body or other nonprofit organiza- tion to make for distribution no more than one copy or phonorecord, for each transmitting or- ganization specified in clause (2) of this sub- section, of a particular transmission program embodying a performance of a nondramatic mu- sical work of a religious nature, or of a sound re- cording of such a musical work, if— (1) there is no direct or indirect charge for making or distributing any such copies or phonorecords; and (2) none of such copies or phonorecords is used for any performance other than a single transmission to the public by a transmitting organization entitled to transmit to the public a performance of the work under a license or transfer of the copyright; and (3) except for one copy or phonorecord that may be preserved exclusively for archival pur- poses, the copies or phonorecords are all de- stroyed within one year from the date the transmission program was first transmitted to the public. (d) Notwithstanding the provisions of section 106, it is not an infringement of copyright for a governmental body or other nonprofit organiza- tion entitled to transmit a performance of a work under section 110(8) to make no more than ten copies or phonorecords embodying the per- formance, or to permit the use of any such copy or phonorecord by any governmental body or nonprofit organization entitled to transmit a performance of a work under section 110(8), if— (1) any such copy or phonorecord is retained and used solely by the organization that made it, or by a governmental body or nonprofit or- ganization entitled to transmit a performance of a work under section 110(8), and no further copies or phonorecords are reproduced from it; and (2) any such copy or phonorecord is used solely for transmissions authorized under sec- tion 110(8), or for purposes of archival preser- vation or security; and (3) the governmental body or nonprofit orga- nization permitting any use of any such copy or phonorecord by any governmental body or nonprofit organization under this subsection does not make any charge for such use. (e) STATUTORY LICENSE.—(1) A transmitting organization entitled to transmit to the public a performance of a sound recording under the lim- itation on exclusive rights specified by section 114(d)(1)(C)(iv) or under a statutory license in accordance with section 114(f) is entitled to a statutory license, under the conditions specified by this subsection, to make no more than 1 pho- norecord of the sound recording (unless the terms and conditions of the statutory license allow for more), if the following conditions are satisfied: (A) The phonorecord is retained and used solely by the transmitting organization that made it, and no further phonorecords are re- produced from it. (B) The phonorecord is used solely for the transmitting organization’s own transmissions originating in the United States under a statu- tory license in accordance with section 114(f) or the limitation on exclusive rights specified by section 114(d)(1)(C)(iv). (C) Unless preserved exclusively for purposes of archival preservation, the phonorecord is destroyed within 6 months from the date the sound recording was first transmitted to the public using the phonorecord. (D) Phonorecords of the sound recording have been distributed to the public under the authority of the copyright owner or the copy- right owner authorizes the transmitting enti- ty to transmit the sound recording, and the transmitting entity makes the phonorecord under this subsection from a phonorecord law- fully made and acquired under the authority of the copyright owner. (2) Notwithstanding any provision of the anti- trust laws, any copyright owners of sound re- cordings and any transmitting organizations en- titled to a statutory license under this sub- section may negotiate and agree upon royalty rates and license terms and conditions for mak- ing phonorecords of such sound recordings under this section and the proportionate division of fees paid among copyright owners, and may des- ignate common agents to negotiate, agree to, pay, or receive such royalty payments. (3) Proceedings under chapter 8 shall deter- mine reasonable rates and terms of royalty pay- ments for the activities specified by paragraph (1) during the 5-year period beginning on Janu- ary 1 of the second year following the year in which the proceedings are to be commenced, or such other period as the parties may agree. Such rates shall include a minimum fee for each type of service offered by transmitting organizations. Any copyright owners of sound recordings or any transmitting organizations entitled to a statutory license under this subsection may sub- mit to the Copyright Royalty Judges licenses covering such activities with respect to such sound recordings. The parties to each proceeding shall bear their own costs. (4) The schedule of reasonable rates and terms determined by the Copyright Royalty Judges shall, subject to paragraph (5), be binding on all copyright owners of sound recordings and trans- mitting organizations entitled to a statutory li- cense under this subsection during the 5-year pe- riod specified in paragraph (3), or such other pe- riod as the parties may agree. Such rates shall include a minimum fee for each type of service offered by transmitting organizations. The Copyright Royalty Judges shall establish rates that most clearly represent the fees that would have been negotiated in the marketplace be- tween a willing buyer and a willing seller. In de- termining such rates and terms, the Copyright Royalty Judges shall base their decision on eco- nomic, competitive, and programming informa- tion presented by the parties, including— (A) whether use of the service may sub- stitute for or may promote the sales of phonorecords or otherwise interferes with or enhances the copyright owner’s traditional streams of revenue; and (B) the relative roles of the copyright owner and the transmitting organization in the copy- righted work and the service made available to the public with respect to relative creative Page 60 TITLE 17—COPYRIGHTS § 112 contribution, technological contribution, cap- ital investment, cost, and risk. In establishing such rates and terms, the Copy- right Royalty Judges may consider the rates and terms under voluntary license agreements described in paragraphs (2) and (3). The Copy- right Royalty Judges shall also establish re- quirements by which copyright owners may re- ceive reasonable notice of the use of their sound recordings under this section, and under which records of such use shall be kept and made avail- able by transmitting organizations entitled to obtain a statutory license under this subsection. (5) License agreements voluntarily negotiated at any time between 1 or more copyright owners of sound recordings and 1 or more transmitting organizations entitled to obtain a statutory li- cense under this subsection shall be given effect in lieu of any decision by the Librarian of Con- gress or determination by the Copyright Roy- alty Judges. (6)(A) Any person who wishes to make a pho- norecord of a sound recording under a statutory license in accordance with this subsection may do so without infringing the exclusive right of the copyright owner of the sound recording under section 106(1)— (i) by complying with such notice require- ments as the Copyright Royalty Judges shall prescribe by regulation and by paying royalty fees in accordance with this subsection; or (ii) if such royalty fees have not been set, by agreeing to pay such royalty fees as shall be determined in accordance with this sub- section. (B) Any royalty payments in arrears shall be made on or before the 20th day of the month next succeeding the month in which the royalty fees are set. (7) If a transmitting organization entitled to make a phonorecord under this subsection is prevented from making such phonorecord by reason of the application by the copyright owner of technical measures that prevent the repro- duction of the sound recording, the copyright owner shall make available to the transmitting organization the necessary means for permitting the making of such phonorecord as permitted under this subsection, if it is technologically feasible and economically reasonable for the copyright owner to do so. If the copyright owner fails to do so in a timely manner in light of the transmitting organization’s reasonable business requirements, the transmitting organization shall not be liable for a violation of section 1201(a)(1) of this title for engaging in such ac- tivities as are necessary to make such phonorecords as permitted under this sub- section. (8) Nothing in this subsection annuls, limits, impairs, or otherwise affects in any way the ex- istence or value of any of the exclusive rights of the copyright owners in a sound recording, ex- cept as otherwise provided in this subsection, or in a musical work, including the exclusive rights to reproduce and distribute a sound re- cording or musical work, including by means of a digital phonorecord delivery, under sections 106(1), 106(3), and 115, and the right to perform publicly a sound recording or musical work, in- cluding by means of a digital audio trans- mission, under sections 106(4) and 106(6). (f)(1) Notwithstanding the provisions of sec- tion 106, and without limiting the application of subsection (b), it is not an infringement of copy- right for a governmental body or other non- profit educational institution entitled under section 110(2) to transmit a performance or dis- play to make copies or phonorecords of a work that is in digital form and, solely to the extent permitted in paragraph (2), of a work that is in analog form, embodying the performance or dis- play to be used for making transmissions au- thorized under section 110(2), if— (A) such copies or phonorecords are retained and used solely by the body or institution that made them, and no further copies or phonorecords are reproduced from them, ex- cept as authorized under section 110(2); and (B) such copies or phonorecords are used solely for transmissions authorized under sec- tion 110(2). (2) This subsection does not authorize the con- version of print or other analog versions of works into digital formats, except that such conversion is permitted hereunder, only with re- spect to the amount of such works authorized to be performed or displayed under section 110(2), if— (A) no digital version of the work is avail- able to the institution; or (B) the digital version of the work that is available to the institution is subject to tech- nological protection measures that prevent its use for section 110(2). (g) The transmission program embodied in a copy or phonorecord made under this section is not subject to protection as a derivative work under this title except with the express consent of the owners of copyright in the preexisting works employed in the program. (Pub. L. 94–553, title I, § 101, Oct. 19, 1976, 90 Stat. 2558; Pub. L. 105–304, title IV, §§ 402, 405(b), Oct. 28, 1998, 112 Stat. 2888, 2899; Pub. L. 106–44, § 1(b), Aug. 5, 1999, 113 Stat. 221; Pub. L. 107–273, div. C, title III, § 13301(c)(1), Nov. 2, 2002, 116 Stat. 1912; Pub. L. 108–419, § 5(b), Nov. 30, 2004, 118 Stat. 2361.) HISTORICAL AND REVISION NOTES HOUSE REPORT NO. 94–1476 Section 112 of the bill concerns itself with a special problem that is not dealt with in the present statutes but is the subject of provisions in a number of foreign statutes and in the revisions of the Berne Convention since 1948. This is the problem of what are commonly called ‘‘ephemeral recordings’’: copies or phonorecords of a work made for purposes of later transmission by a broadcasting organization legally entitled to transmit the work. In other words, where a broadcaster has the privilege of performing or displaying a work either be- cause he is licensed or because the performance or dis- play is exempted under the statute, the question is whether he should be given the additional privilege of recording the performance or display to facilitate its transmission. The need for a limited exemption in these cases because of the practical exigencies of broad- casting has been generally recognized, but the scope of the exemption has been a controversial issue. Recordings for Licensed Transmissions. Under sub- section (a) of section 112, an organization that has ac- Page 61 TITLE 17—COPYRIGHTS § 112 quired the right to transmit any work (other than a motion picture or other audiovisual work), or that is free to transmit a sound recording under section 114, may make a single copy or phonorecord of a particular program embodying the work, if the copy or phono- record is used solely for the organization’s own trans- missions within its own area; after 6 months it must be destroyed or preserved solely for archival purposes. Organizations Covered.—The ephemeral recording privilege is given by subsection (a) to ‘‘a transmitting organization entitled to transmit to the public a per- formance or display of a work.’’ Assuming that the transmission meets the other conditions of the provi- sion, it makes no difference what type of public trans- mission the organization is making: commercial radio and television broadcasts, public radio and television broadcasts not exempted by section 110(2), pay-TV, closed circuit, background music, and so forth. How- ever, to come within the scope of subsection (a), the or- ganization must have the right to make the trans- mission ‘‘under a license or transfer of the copyright or under the limitations on exclusive rights in sound re- cordings specified by section 114(a).’’ Thus, except in the case of copyrighted sound recordings (which have no exclusive performing rights under the bill), the or- ganization must be a transferee or licensee (including compulsory licensee) of performing rights in the work in order to make an ephemeral recording of it. Some concern has been expressed by authors and pub- lishers lest the term ‘‘organization’’ be construed to in- clude a number of affiliated broadcasters who could ex- change the recording without restrictions. The term is intended to cover a broadcasting network, or a local broadcaster or individual transmitter; but, under clauses (1) and (2) of the subsection, the ephemeral re- cording must be ‘‘retained and used solely by the trans- mitting organization that made it,’’ and must be used solely for that organization’s own transmissions within its own area. Thus, an ephemeral recording made by one transmitter, whether it be a network or local broadcaster, could not be made available for use by an- other transmitter. Likewise, this subsection does not apply to those nonsimultaneous transmissions by cable systems not located within a boundary of the forty- eight contiguous States that are granted a compulsory license under section 111. Scope of the Privilege.—Subsection (a) permits the transmitting organization to make ‘‘no more than one copy or phonorecord of a particular transmission pro- gram embodying the performance or display.’’ A ‘‘transmission program’’ is defined in section 101 as a body of material produced for the sole purpose of trans- mission as a unit. Thus, under section 112(a), a trans- mitter could make only one copy or phonorecord of a particular ‘‘transmission program’’ containing a copy- righted work, but would not be limited as to the num- ber of times the work itself could be duplicated as part of other ‘‘transmission programs.’’ Three specific limitations on the scope of the ephem- eral recording privilege are set out in subsection (a), and unless all are met the making of an ‘‘ephemeral re- cording’’ becomes fully actionable as an infringement. The first requires that the copy or phonorecord be ‘‘re- tained and used solely by the transmitting organiza- tion that made it,’’ and that ‘‘no further copies or phonorecords are reproduced from it.’’ This means that a transmitting organization would have no privilege of exchanging ephemeral recordings with other transmit- ters or of allowing them to duplicate their own ephem- eral recordings from the copy or phonorecord it has made. There is nothing in the provision to prevent a transmitting organization from having an ephemeral recording made by means of facilities other than its own, although it would not be permissible for a person or organization other than a transmitting organization to make a recording on its own initiative for possible sale or lease to a broadcaster. The ephemeral recording privilege would extend to copies or phonorecords made in advance for later broadcast, as well as recordings of a program that are made while it is being transmitted and are intended for deferred transmission or preserva- tion. Clause (2) of section 112(a) provides that, to be ex- empt from copyright, the copy or phonorecord must be ‘‘used solely for the transmitting organization’s own transmissions within its local service area, or for pur- poses of archival preservation or security’’. The term ‘‘local service area’’ is defined in section 111(f). Clause (3) of section 112(a) provides that, unless pre- served exclusively for archival purposes, the copy or phonorecord of a transmission program must be de- stroyed within six months from the date the trans- mission program was first transmitted to the public. Recordings for Instructional Transmissions. Section 112(b) represents a response to the arguments of in- structional broadcasters and other educational groups for special recording privileges, although it does not go as far as these groups requested. In general, it permits a nonprofit organization that is free to transmit a per- formance or display of a work, under section 110(2) or under the limitations on exclusive rights in sound re- cordings specified by section 114(a), to make not more than thirty copies or phonorecords and to use the ephemeral recordings for transmitting purposes for not more than seven years after the initial transmission. Organizations Covered.—The privilege of making ephemeral recordings under section 112(b) extends to a ‘‘governmental body or other nonprofit organization entitled to transmit a performance or display of a work under section 110(2) or under the limitations on exclu- sive rights in sound recordings specified by section 114(a).’’ Aside from phonorecords of copyrighted sound recordings, the ephemeral recordings made by an in- structional broadcaster under subsection (b) must em- body a performance or display that meets all of the qualifications for exemption under section 110(2). Cop- ies or phonorecords made for educational broadcasts of a general cultural nature, or for transmission as part of an information storage and retrieval system, would not be exempted from copyright protection under section 112(b). Motion Pictures and Other Audiovisual Works.—Since the performance exemption provided by section 110(2) applies only to nondramatic literary and musical works, there was no need to exclude motion pictures and other audiovisual works explicitly from the scope of section 112(b). Another point stressed by the pro- ducers of educational films in this connection, how- ever, was that ephemeral recordings made by instruc- tional broadcasters are in fact audiovisual works that often compete for exactly the same market. They ar- gued that it is unfair to allow instructional broad- casters to reproduce multiple copies of films and tapes, and to exchange them with other broadcasters, without paying any copyright royalties, thereby directly injur- ing the market of producers of audiovisual works who now pay substantial fees to authors for the same uses. These arguments are persuasive and justify the placing of reasonable limits on the recording privilege. Scope of the Privilege.—Under subsection (b) an in- structional broadcaster may make ‘‘no more than thir- ty copies or phonorecords of a particular transmission program embodying the performance or display.’’ No further copies or phonorecords can be reproduced from those made under section 112(b), either by the nonprofit organization that made them or by anyone else. On the other hand, if the nonprofit organization does nothing directly or indirectly to authorize, induce, or encourage others to duplicate additional copies or phonorecords of an ephemeral recording in excess of the limit of thirty, it would not be held responsible as participating in the infringement in such a case, and the unauthorized copies would not be counted against the organization’s total of thirty. Unlike ephemeral recordings made under subsection (a), exchanges of recordings among instructional broad- casters are permitted. An organization that has made copies or phonorecords under subsection (b) may use one of them for purposes of its own transmissions that are exempted by section 110(2), and it may also transfer Page 62 TITLE 17—COPYRIGHTS § 112 the other 29 copies to other instructional broadcasters for use in the same way. As in the case of ephemeral recordings made under section 112(a), a copy or phonorecord made for instruc- tional broadcasting could be reused in any number of transmissions within the time limits specified in the provision. Because of the special problems of instruc- tional broadcasters resulting from the scheduling of courses and the need to prerecord well in advance of transmission, the period of use has been extended to seven years from the date the transmission program was first transmitted to the public. Religious Broadcasts.—Section 112(c) provides that it is not an infringement of copyright for certain non- profit organizations to make no more than one copy for each transmitting organization of a broadcast program embodying a performance of a nondramatic musical work of a religious nature or of a sound recording of such a musical work. In order for this exception to be applicable there must be no charge for the distribution of the copies, none of the copies may be used for any performance other than a single transmission by an or- ganization possessing a license to transmit a copy- righted work, and, other than for one copy that may be preserved for archival purposes, the remaining copies must be destroyed within one year from the date the program was first transmitted to the public. Despite objections by music copyright owners, the Committee found this exemption to be justified by the special circumstances under which many religious pro- grams are broadcast. These programs are produced on tape or disk for distribution by mail of one copy only to each broadcast station carrying the program. None of the programs are prepared for profit, and the pro- gram producer either pays the station to carry the pro- gram or furnishes it free of charge. The stations have performing licenses, so the copyright owners receive compensation. Following the performance, the tape is returned or the disk destroyed. It seems likely that, as has been alleged, to require a second payment for the mechanical reproduction under these circumstances would simply have the effect of driving some of the copyrighted music off the air. Ephemeral Recordings for Transmissions to Handi- capped Audiences. As a counterpart to its amendment of section 110(8), the Committee adopted a new provi- sion, subsection (d) of section 112, to provide an ephem- eral recording exemption in the case of transmissions to the blind and deaf. New subsection would permit the making of one recording of a performance exempted under section 110(8), and its retention for an unlimited period. It would not permit the making of further re- productions or their exchange with other organiza- tions. Copyright Status of Ephemeral Recordings. A pro- gram reproduced in an ephemeral recording made under section 112 in many cases will constitute a motion pic- ture, a sound recording, or some other kind of deriva- tive work, and will thus be potentially copyrightable under section 103. In section 112(e) it is provided that ephemeral recordings are not to be copyrightable as de- rivative works except with the consent of the owners of the copyrighted material employed in them. Editorial Notes AMENDMENTS 2004—Subsec. (e)(3). Pub. L. 108–419, § 5(b)(1), sub- stituted first sentence for former first sentence which read: ‘‘No later than 30 days after the date of the enact- ment of the Digital Millennium Copyright Act, the Li- brarian of Congress shall cause notice to be published in the Federal Register of the initiation of voluntary negotiation proceedings for the purpose of determining reasonable terms and rates of royalty payments for the activities specified by paragraph (1) of this subsection during the period beginning on the date of the enact- ment of such Act and ending on December 31, 2000, or such other date as the parties may agree.’’, substituted ‘‘Copyright Royalty Judges licenses’’ for ‘‘Librarian of Congress licenses’’ in third sentence, and struck out ‘‘negotiation’’ before ‘‘proceeding’’ in last sentence. Subsec. (e)(4). Pub. L. 108–419, § 5(b)(2), substituted first sentence for former first sentence which read: ‘‘In the absence of license agreements negotiated under paragraph (2), during the 60-day period commencing 6 months after publication of the notice specified in paragraph (3), and upon the filing of a petition in ac- cordance with section 803(a)(1), the Librarian of Con- gress shall, pursuant to chapter 8, convene a copyright arbitration royalty panel to determine and publish in the Federal Register a schedule of reasonable rates and terms which, subject to paragraph (5), shall be binding on all copyright owners of sound recordings and trans- mitting organizations entitled to a statutory license under this subsection during the period beginning on the date of the enactment of the Digital Millennium Copyright Act and ending on December 31, 2000, or such other date as the parties may agree.’’, and substituted ‘‘Copyright Royalty Judges’’ for ‘‘copyright arbitration royalty panel’’ in third and fourth sentences and in concluding provisions, ‘‘their decision’’ for ‘‘its deci- sion’’, ‘‘described’’ for ‘‘negotiated as provided’’, and ‘‘Copyright Royalty Judges shall also establish’’ for ‘‘Librarian of Congress shall also establish’’. Subsec. (e)(5). Pub. L. 108–419, § 5(b)(3), substituted ‘‘decision by the Librarian of Congress or determina- tion by the Copyright Royalty Judges’’ for ‘‘determina- tion by a copyright arbitration royalty panel or deci- sion by the Librarian of Congress’’. Subsec. (e)(6). Pub. L. 108–419, § 5(b)(4), redesignated par. (7) as (6) and struck out former par. (6) which re- lated to publication of notice of the initiation of vol- untary negotiation proceedings as specified in par. (3). Subsec. (e)(6)(A)(i). Pub. L. 108–419, § 5(b)(5), sub- stituted ‘‘Copyright Royalty Judges’’ for ‘‘Librarian of Congress’’. Subsec. (e)(7) to (9). Pub. L. 108–419, § 5(b)(4), redesig- nated pars. (8) and (9) as (7) and (8), respectively. Former par. (7) redesignated (6). 2002—Subsecs. (f), (g). Pub. L. 107–273 added subsec. (f) and redesignated former subsec. (f) as (g). 1999—Subsec. (e)(2). Pub. L. 106–44, § 1(b)(1), redesig- nated par. (3) as (2). Subsec. (e)(3). Pub. L. 106–44, § 1(b)(1), (2), redesignated par. (4) as (3) and substituted ‘‘(1)’’ for ‘‘(2)’’ in first sen- tence. Former par. (3) redesignated (2). Subsec. (e)(4). Pub. L. 106–44, § 1(b)(1), (3), redesignated par. (5) as (4), substituted ‘‘(2)’’ for ‘‘(3)’’, ‘‘(3)’’ for ‘‘(4)’’, and ‘‘(5)’’ for ‘‘(6)’’ in first sentence, and substituted ‘‘(2) and (3)’’ for ‘‘(3) and (4)’’ in penultimate sentence of concluding provisions. Former par. (4) redesignated (3). Subsec. (e)(5). Pub. L. 106–44, § 1(b)(1), redesignated par. (6) as (5). Former par. (5) redesignated (4). Subsec. (e)(6). Pub. L. 106–44, § 1(b)(1), (4), redesignated par. (7) as (6), substituted ‘‘(3)’’ for ‘‘(4)’’ wherever ap- pearing, and substituted ‘‘(4)’’ for ‘‘(5)’’ in two places. Former par. (6) redesignated (5). Subsec. (e)(7) to (10). Pub. L. 106–44, § 1(b)(1), redesig- nated pars. (8) to (10) as (7) to (9), respectively. Former par. (7) redesignated (6). 1998—Subsec. (a). Pub. L. 105–304, § 402, designated ex- isting provisions as par. (1), in introductory provisions inserted ‘‘, including a statutory license under section 114(f),’’ after ‘‘under a license’’ and ‘‘or for a transmit- ting organization that is a broadcast radio or television station licensed as such by the Federal Communica- tions Commission and that makes a broadcast trans- mission of a performance of a sound recording in a dig- ital format on a nonsubscription basis,’’ after ‘‘114(a),’’, redesignated former pars. (1) to (3) as subpars. (A) to (C), respectively, and added par. (2). Subsecs. (e), (f). Pub. L. 105–304, § 405(b), added subsec. (e) and redesignated former subsec. (e) as (f). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2004 AMENDMENT Amendment by Pub. L. 108–419 effective 6 months after Nov. 30, 2004, subject to transition provisions, see Page 63 TITLE 17—COPYRIGHTS § 113 section 6 of Pub. L. 108–419, set out as an Effective Date; Transition Provisions note under section 801 of this title. CONSTRUCTION OF 1998 AMENDMENT Pub. L. 105–304, title IV, § 405(c), Oct. 28, 1998, 112 Stat. 2902, provided that: ‘‘Nothing in this section [amending this section and sections 114 and 801 to 803 of this title and enacting provisions set out as notes under section 114 of this title] or the amendments made by this sec- tion shall affect the scope of section 112(a) of title 17, United States Code, or the entitlement of any person to an exemption thereunder.’’ § 113. Scope of exclusive rights in pictorial, graphic, and sculptural works (a) Subject to the provisions of subsections (b) and (c) of this section, the exclusive right to re- produce a copyrighted pictorial, graphic, or sculptural work in copies under section 106 in- cludes the right to reproduce the work in or on any kind of article, whether useful or otherwise. (b) This title does not afford, to the owner of copyright in a work that portrays a useful arti- cle as such, any greater or lesser rights with re- spect to the making, distribution, or display of the useful article so portrayed than those af- forded to such works under the law, whether title 17 or the common law or statutes of a State, in effect on December 31, 1977, as held ap- plicable and construed by a court in an action brought under this title. (c) In the case of a work lawfully reproduced in useful articles that have been offered for sale or other distribution to the public, copyright does not include any right to prevent the mak- ing, distribution, or display of pictures or photo- graphs of such articles in connection with adver- tisements or commentaries related to the dis- tribution or display of such articles, or in con- nection with news reports. (d)(1) In a case in which— (A) a work of visual art has been incor- porated in or made part of a building in such a way that removing the work from the build- ing will cause the destruction, distortion, mu- tilation, or other modification of the work as described in section 106A(a)(3), and (B) the author consented to the installation of the work in the building either before the effective date set forth in section 610(a) of the Visual Artists Rights Act of 1990, or in a writ- ten instrument executed on or after such ef- fective date that is signed by the owner of the building and the author and that specifies that installation of the work may subject the work to destruction, distortion, mutilation, or other modification, by reason of its removal, then the rights conferred by paragraphs (2) and (3) of section 106A(a) shall not apply. (2) If the owner of a building wishes to remove a work of visual art which is a part of such building and which can be removed from the building without the destruction, distortion, mutilation, or other modification of the work as described in section 106A(a)(3), the author’s rights under paragraphs (2) and (3) of section 106A(a) shall apply unless— (A) the owner has made a diligent, good faith attempt without success to notify the author of the owner’s intended action affect- ing the work of visual art, or (B) the owner did provide such notice in writing and the person so notified failed, with- in 90 days after receiving such notice, either to remove the work or to pay for its removal. For purposes of subparagraph (A), an owner shall be presumed to have made a diligent, good faith attempt to send notice if the owner sent such notice by registered mail to the author at the most recent address of the author that was recorded with the Register of Copyrights pursu- ant to paragraph (3). If the work is removed at the expense of the author, title to that copy of the work shall be deemed to be in the author. (3) The Register of Copyrights shall establish a system of records whereby any author of a work of visual art that has been incorporated in or made part of a building, may record his or her identity and address with the Copyright Office. The Register shall also establish procedures under which any such author may update the in- formation so recorded, and procedures under which owners of buildings may record with the Copyright Office evidence of their efforts to comply with this subsection. (Pub. L. 94–553, title I, § 101, Oct. 19, 1976, 90 Stat. 2560; Pub. L. 101–650, title VI, § 604, Dec. 1, 1990, 104 Stat. 5130.) HISTORICAL AND REVISION NOTES HOUSE REPORT NO. 94–1476 Section 113 deals with the extent of copyright protec- tion in ‘‘works of applied art.’’ The section takes as its starting point the Supreme Court’s decision in Mazer v. Stein, 347 U.S. 201 (1954) [74 S.Ct. 460, 98 L.Ed. 630, re- hearing denied 74 S.Ct. 637, 347 U.S. 949, 98 L.Ed. 1096], and the first sentence of subsection (a) restates the basic principle established by that decision. The rule of Mazer, as affirmed by the bill, is that copyright in a pictorial, graphic, or sculptural work will not be af- fected if the work is employed as the design of a useful article, and will afford protection to the copyright owner against the unauthorized reproduction of his work in useful as well as nonuseful articles. The terms ‘‘pictorial, graphic, and sculptural works’’ and ‘‘useful article’’ are defined in section 101, and these definitions are discussed above in connection with section 102. The broad language of section 106(1) and of subsection (a) of section 113 raises questions as to the extent of copyright protection for a pictorial, graphic, or sculp- tural work that portrays, depicts, or represents an image of a useful article in such a way that the utili- tarian nature of the article can be seen. To take the ex- ample usually cited, would copyright in a drawing or model of an automobile give the artist the exclusive right to make automobiles of the same design? The 1961 Report of the Register of Copyrights stated, on the basis of judicial precedent, that ‘‘copyright in a pictorial, graphic, or sculptural work, portraying a use- ful article as such, does not extend to the manufacture of the useful article itself,’’ and recommended specifi- cally that ‘‘the distinctions drawn in this area by exist- ing court decisions’’ not be altered by the statute. The Register’s Supplementary Report, at page 48, cited a number of these decisions, and explained the insuper- able difficulty of finding ‘‘any statutory formulation that would express the distinction satisfactorily.’’ Sec- tion 113(b) reflects the Register’s conclusion that ‘‘the real need is to make clear that there is no intention to change the present law with respect to the scope of pro- tection in a work portraying a useful article as such.’’ Section 113(c) provides that it would not be an in- fringement of copyright, where a copyright work has been lawfully published as the design of useful articles, to make, distribute or display pictures of the articles