17 U.S.C. § 116 — Negotiated licenses for public perform-

Page 105 TITLE 17—COPYRIGHTS § 116 this Act [this section]. However, such parts made on or after January 1, 1978, constitute phonorecords and are otherwise subject to the provisions of said section 115 [this section].’’ § 116. Negotiated licenses for public perform- ances by means of coin-operated phono- record players (a) APPLICABILITY OF SECTION.—This section applies to any nondramatic musical work em- bodied in a phonorecord. (b) NEGOTIATED LICENSES.— (1) AUTHORITY FOR NEGOTIATIONS.—Any own- ers of copyright in works to which this section applies and any operators of coin-operated phonorecord players may negotiate and agree upon the terms and rates of royalty payments for the performance of such works and the pro- portionate division of fees paid among copy- right owners, and may designate common agents to negotiate, agree to, pay, or receive such royalty payments. (2) CHAPTER 8 PROCEEDING.—Parties not sub- ject to such a negotiation may have the terms and rates and the division of fees described in paragraph (1) determined in a proceeding in accordance with the provisions of chapter 8. (c) LICENSE AGREEMENTS SUPERIOR TO DETER- MINATIONS BY COPYRIGHT ROYALTY JUDGES.—Li- cense agreements between one or more copy- right owners and one or more operators of coin- operated phonorecord players, which are nego- tiated in accordance with subsection (b), shall be given effect in lieu of any otherwise applica- ble determination by the Copyright Royalty Judges. (d) DEFINITIONS.—As used in this section, the following terms 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 the 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 which is com- prised of the titles of all the musical works available for performance on it, and is af- fixed to the phonorecord player or posted in the establishment in a prominent position where it can be readily examined by the pub- lic; 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; (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 con- trol over the selection of the musical works made available for public performance on a coin-operated phonorecord player. (Added Pub. L. 100–568, § 4(a)(4), Oct. 31, 1988, 102 Stat. 2855, § 116A; renumbered § 116 and amended Pub. L. 103–198, § 3(b)(1), Dec. 17, 1993, 107 Stat. 2309; Pub. L. 105–80, § 5, Nov. 13, 1997, 111 Stat. 1531; Pub. L. 108–419, § 5(e), Nov. 30, 2004, 118 Stat. 2365.) Editorial Notes PRIOR PROVISIONS A prior section 116, Pub. L. 94–553, title I, § 101, Oct. 19, 1976, 90 Stat. 2562; Pub. L. 100–568, § 4(b)(1), Oct. 31, 1988, 102 Stat. 2857, related to scope of exclusive rights in nondramatic musical works and compulsory licenses for public performances by means of coin-operated pho- norecord players, prior to repeal by Pub. L. 103–198, § 3(a), Dec. 17, 1993, 107 Stat. 2309. AMENDMENTS 2004—Subsec. (b)(2). Pub. L. 108–419, § 5(e)(1), amended heading and text of par. (2) generally. Prior to amend- ment, text read as follows: ‘‘Parties not subject to such a negotiation may determine, by arbitration in accord- ance with the provisions of chapter 8, the terms and rates and the division of fees described in paragraph (1).’’ Subsec. (c). Pub. L. 108–419, § 5(e)(2), substituted ‘‘De- terminations by Copyright Royalty Judges’’ for ‘‘Copy- right Arbitration Royalty Panel Determinations’’ in heading and ‘‘the Copyright Royalty Judges’’ for ‘‘a copyright arbitration royalty panel’’ in text. 1997—Subsec. (b)(2). Pub. L. 105–80, § 5(1), amended par. (2) generally. Prior to amendment, par. (2) read as follows: ‘‘(2) ARBITRATION.—Parties to such a negotiation, within such time as may be specified by the Librarian of Congress by regulation, may determine the result of the negotiation by arbitration. Such arbitration shall be governed by the provisions of title 9, to the extent such title is not inconsistent with this section. The parties shall give notice to the Librarian of Congress of any determination reached by arbitration and any such determination shall, as between the parties to the arbi- tration, be dispositive of the issues to which it re- lates.’’ Subsec. (d). Pub. L. 105–80, § 5(2), added subsec. (d). 1993—Pub. L. 103–198, § 3(b)(1)(A), renumbered section 116A of this title as this section. Subsec. (b). Pub. L. 103–198, § 3(b)(1)(B), (C), redesig- nated subsec. (c) as (b), substituted ‘‘Librarian of Con- gress’’ for ‘‘Copyright Royalty Tribunal’’ in two places in par. (2), and struck out former subsec. (b) which re- lated to limitation on exclusive right if licenses not ne- gotiated. Subsec. (c). Pub. L. 103–198, § 3(b)(1)(B), (D), redesig- nated subsec. (d) as (c), in heading substituted ‘‘Arbi- tration Royalty Panel’’ for ‘‘Royalty Tribunal’’, and in text substituted ‘‘subsection (b)’’ for ‘‘subsection (c)’’ and ‘‘a copyright arbitration royalty panel’’ for ‘‘the Copyright Royalty Tribunal’’. Subsecs. (d) to (g). Pub. L. 103–198, § 3(b)(1)(B), (E), re- designated subsec. (d) as (c) and struck out subsecs. (e) to (g) which provided, in subsec. (e), for a schedule for negotiation of licenses, in subsec. (f), for a suspension of various ratemaking activities by the Copyright Roy- alty Tribunal, and in subsec. (g), for transition provi- sions and retention of Copyright Royalty Tribunal ju- risdiction. 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 section 6 of Pub. L. 108–419, set out as an Effective Date; Transition Provisions note under section 801 of this title. 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