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>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 reproduced

from it.

(B) The phonorecord is used solely for the transmitting organization's

own transmissions originating in the United States under a statutory

license in accordance with section 114(f) or the limitation on exclusive

rights specified by section 114(d)(1)(C)(iv).

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 copyright owner

authorizes the transmitting entity to transmit the sound recording, and

the transmitting entity makes the phonorecord under this subsection from

a phonorecord lawfully made and acquired under the authority of the

(2) Notwithstanding any provision of the antitrust laws, any copyright

owners of sound recordings and any transmitting organizations entitled

to a statutory license under this subsection may negotiate and agree

upon royalty rates and license terms and conditions for making

phonorecords of such sound recordings under this section and the

proportionate division of fees paid among copyright owners, and may

designate common agents to negotiate, agree to, pay, or receive such

royalty payments.

(3) No later than 30 days after the date of the enactment of the Digital

Millennium Copyright Act, the Librarian 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

enactment of such Act and ending on December 31, 2000, or such other

date as the parties may agree. Such rates shall include a minimum fee

for each type of service offered by transmitting organizations. Any

entitled to a statutory license under this subsection may submit to the

Librarian of Congress licenses covering such activities with respect to

such sound recordings. The parties to each negotiation proceeding shall

bear their own costs.

(4) 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

accordance with section 803(a)(1), the Librarian of Congress 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

entitled to a statutory license under this subsection during the period

beginning on the date of the enactment of the Digital Millennium

parties may agree. Such rates shall include a minimum fee for each type

of service offered by transmitting organizations. The copyright

arbitration royalty panel shall establish rates that most clearly

represent the fees that would have been negotiated in the marketplace

between a willing buyer and a willing seller. In determining such rates

and terms, the copyright arbitration royalty panel shall base its

decision on economic, competitive, and programming information presented

by the parties, including-

(A) whether use of the service may substitute for or may promote the

sales of phonorecords or otherwise interferes with or enhances the

(B) the relative roles of the copyright owner and the transmitting

organization in the copyrighted work and the service made available to

the public with respect to relative creative contribution, technological

contribution, capital investment, cost, and risk.

In establishing such rates and terms, the copyright arbitration royalty

panel may consider the rates and terms under voluntary license

agreements negotiated as provided in paragraphs (2) and (3). The

Librarian of Congress shall also establish requirements by which

recordings under this section, and under which records of such use shall

be kept and made available 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 license under this

subsection shall be given effect in lieu of any determination by a

Congress.

(6) Publication of a notice of the initiation of voluntary negotiation

proceedings as specified in paragraph (3) shall be repeated, in

accordance with regulations that the Librarian of Congress shall

prescribe, in the first week of January 2000, and at 2-year intervals

thereafter, except to the extent that different years for the repeating

of such proceedings may be determined in accordance with paragraph (3).

The procedures specified in paragraph (4) shall be repeated, in

accordance with regulations that the Librarian of Congress shall

prescribe, upon filing of a petition in accordance with section 803(a)

(1), during a 60-day period commencing on July 1, 2000, and at 2-year

intervals thereafter, except to the extent that different years for the

repeating of such proceedings may be determined in accordance with

paragraph (3). The procedures specified in paragraph (4) shall be

concluded in accordance with section 802.

(7)(A) Any person who wishes to make a phonorecord 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 requirements as the Librarian of

Congress 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 subsection.

(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.

(8) 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 reproduction 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 activities as are necessary to make

such phonorecords as permitted under this subsection.

(9) Nothing in this subsection annuls, limits, impairs, or otherwise

affects in any way the existence or value of any of the exclusive rights

of the copyright owners in a sound recording, except as otherwise

provided in this subsection, or in a musical work, including the

exclusive rights to reproduce and distribute a sound recording or

musical work, including by means of a digital phonorecord delivery,

under section 106(1), 106(3), and 115, and the right to perform publicly

a sound recording or musical work, including by means of a digital audio

transmission, under sections 106(4) and 106(6).

(f) 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

Section 113. Scope of exclusive rights in pictorial, graphic, and

sculptural works [45]

(a) Subject to the provisions of subsections (b) and (c) of this

section, the exclusive right to reproduce a copyrighted pictorial,

graphic, or sculptural work in copies under section 106 includes 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 article as such, any greater or lesser rights with

respect to the making, distribution, or display of the useful article so

portrayed than those afforded 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 applicable and construed by a court in an action brought

under this title.

have been offered for sale or other distribution to the public,

distribution, or display of pictures or photographs of such articles in

connection with advertisements or commentaries related to the

distribution or display of such articles, or in connection with news

reports.

(d)(1) In a case in which-

(A) a work of visual art has been incorporated in or made part of a

building in such a way that removing the work from the building will

cause the destruction, distortion, mutilation, 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 written instrument executed

on or after such effective 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 affecting the work of

visual art, or

(B) the owner did provide such notice in writing and the person so

notified failed, within 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 pursuant

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 information so recorded, and

procedures under which owners of buildings may record with the Copyright

Office evidence of their efforts to comply with this subsection.

Section 114. Scope of exclusive rights in sound recordings [46]

(a) The exclusive rights of the owner of copyright in a sound recording

are limited to the rights specified by clauses (1), (2), (3) and (6) of

section 106, and do not include any right of performance under section

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