U.S.A. Copyright Law, Library of Congress. Copyright Office [reading diary TXT] 📗

>106(4).

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

under clause (1) of section 106 is limited to the right to duplicate the

sound recording in the form of phonorecords or copies that directly or

indirectly recapture the actual sounds fixed in the recording. The

exclusive right of the owner of copyright in a sound recording under

clause (2) of section 106 is limited to the right to prepare a

derivative work in which the actual sounds fixed in the sound recording

are rearranged, remixed, or otherwise altered in sequence or quality.

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

under clauses (1) and (2) of section 106 do not extend to the making or

duplication of another sound recording that consists entirely of an

independent fixation of other sounds, even though such sounds imitate or

simulate those in the copyrighted sound recording. The exclusive rights

of the owner of copyright in a sound recording under clauses (1), (2),

and (3) of section 106 do not apply to sound recordings included in

educational television and radio programs (as defined in section 397 of

title 47) distributed or transmitted by or through public broadcasting

entities (as defined by section 118(g)): Provided, That copies or

phonorecords of said programs are not commercially distributed by or

through public broadcasting entities to the general public.

(c) This section does not limit or impair the exclusive right to perform

publicly, by means of a phonorecord, any of the works specified by

section 106(4).

(d) Limitations on Exclusive Right. Notwithstanding the provisions of

section 106(6)-

(1) Exempt transmissions and retransmissions. The performance of a sound

recording publicly by means of a digital audio transmission, other than

as a part of an interactive service, is not an infringement of section

106(6) if the performance is part of-

(A) a nonsubscription broadcast transmission;

(B) a retransmission of a nonsubscription broadcast transmission:

Provided, That, in the case of a retransmission of a radio station's

broadcast transmission-

(i) the radio station's broadcast transmission is not willfully or

repeatedly retransmitted more than a radius of 150 miles from the site

of the radio broadcast transmitter, however-

(I) the 150 mile limitation under this clause shall not apply when a

nonsubscription broadcast transmission by a radio station licensed by

the Federal Communications Commission is retransmitted on a non-

subscription basis by a terrestrial broadcast station, terrestrial

translator, or terrestrial repeater licensed by the Federal

Communications Commission; and

(II) in the case of a subscription retransmission of a non-subscription

broadcast retransmission covered by subclause (I), the 150 mile radius

shall be measured from the transmitter site of such broadcast

retransmitter;

(ii) the retransmission is of radio station broadcast transmissions that

are

(I) obtained by the retransmitter over the air;

(II) not electronically processed by the retransmitter to deliver

separate and discrete signals; and

(III) retransmitted only within the local communities served by the

retransmitter;

(iii) the radio station's broadcast transmission was being retransmitted

to cable systems (as defined in section 111(f)) by a satellite carrier

on January 1, 1995, and that retransmission was being retransmitted by

cable systems as a separate and discrete signal, and the satellite

carrier obtains the radio station's broadcast transmission in an analog

format: Provided, That the broadcast transmission being retransmitted

may embody the programming of no more than one radio station; or

(iv) the radio station's broadcast transmission is made by a

noncommercial educational broadcast station funded on or after January

1, 1995, under section 396(k) of the Communications Act of 1934 (47

U.S.C. 396(k)), consists solely of noncommercial educational and

cultural radio programs, and the retransmission, whether or not

simultaneous, is a nonsubscription terrestrial broadcast retransmission;

or

(C) a transmission that comes within any of the following categories-

(i) a prior or simultaneous transmission incidental to an exempt

transmission, such as a feed received by and then retransmitted by an

exempt transmitter: Provided, That such incidental transmissions do

not include any subscription transmission directly for reception by

members of the public;

(ii) a transmission within a business establishment, confined to its

premises or the immediately surrounding vicinity;

(iii) a retransmission by any retransmitter, including a multichannel

video programming distributor as defined in section 602(12) of the

Communications Act of 1934 (47 U.S.C. 522 (12)), of a transmission by a

transmitter licensed to publicly perform the sound recording as a part

of that transmission, if the retransmission is simultaneous with the

licensed transmission and authorized by the transmitter; or

(iv) a transmission to a business establishment for use in the ordinary

course of its business: Provided, That the business recipient does not

retransmit the transmission outside of its premises or the immediately

surrounding vicinity, and that the transmission does not exceed the

sound recording performance complement. Nothing in this clause shall

limit the scope of the exemption in clause (ii).

(2) Statutory licensing of certain transmissions.-

The performance of a sound recording publicly by means of a subscription

digital audio transmission not exempt under paragraph (1), an eligible

nonsubscription transmission, or a transmission not exempt under

paragraph (1) that is made by a preexisting satellite digital audio

radio service shall be subject to statutory licensing, in accordance

with subsection (f) if-

(A)(i) the transmission is not part of an interactive service;

(ii) except in the case of a transmission to a business establishment,

the transmitting entity does not automatically and intentionally cause

any device receiving the transmission to switch from one program channel

to another; and

(iii) except as provided in section 1002(e), the transmission of the

sound recording is accompanied, if technically feasible, by the

information encoded in that sound recording, if any, by or under the

authority of the copyright owner of that sound recording, that

identifies the title of the sound recording, the featured recording

artist who performs on the sound recording, and related information,

including information concerning the underlying musical work and its

writer;

(B) in the case of a subscription transmission not exempt under

paragraph (1) that is made by a preexisting subscription service in the

same transmission medium used by such service on July 31, 1998, or in

the case of a transmission not exempt under paragraph (1) that is made

by a preexisting satellite digital audio radio service-

(i) the transmission does not exceed the sound recording performance

complement; and

(ii) the transmitting entity does not cause to be published by means of

an advance program schedule or prior announcement the titles of the

specific sound recordings or phonorecords embodying such sound

recordings to be transmitted; and

(C) in the case of an eligible nonsubscription transmission or a

subscription transmission not exempt under paragraph (1) that is made by

a new subscription service or by a preexisting subscription service

other than in the same transmission medium used by such service on July

31, 1998-

(i) the transmission does not exceed the sound recording performance

complement, except that this requirement shall not apply in the case of

a retransmission of a broadcast transmission if the retransmission is

made by a transmitting entity that does not have the right or ability to

control the programming of the broadcast station making the broadcast

transmission, unless-

(I) the broadcast station makes broadcast transmissions-

(aa) in digital format that regularly exceed the sound recording

performance complement; or

(bb) in analog format, a substantial portion of which, on a weekly

basis, exceed the sound recording performance complement; and

(II) the sound recording copyright owner or its representative has

notified the transmitting entity in writing that broadcast transmissions

of the copyright owner's sound recordings exceed the sound recording

performance complement as provided in this clause;

(ii) the transmitting entity does not cause to be published, or induce

or facilitate the publication, by means of an advance program schedule

or prior announcement, the titles of the specific sound recordings to be

transmitted, the phonorecords embodying such sound recordings, or, other

than for illustrative purposes, the names of the featured recording

artists, except that this clause does not disqualify a transmitting

entity that makes a prior announcement that a particular artist will be

featured within an unspecified future time period, and in the case of a

retransmission of a broadcast transmission by a transmitting entity that

does not have the right or ability to control the programming of the

broadcast transmission, the requirement of this clause shall not apply

to a prior oral announcement by the broadcast station, or to an advance

program schedule published, induced, or facilitated by the broadcast

station, if the transmitting entity does not have actual knowledge and

has not received written notice from the copyright owner or its

representative that the broadcast station publishes or induces or

facilitates the publication of such advance program schedule, or if such

advance program schedule is a schedule of classical music programming

published by the broadcast station in the same manner as published by

that broadcast station on or before September 30, 1998;

(iii) the transmission-

(I) is not part of an archived program of less than 5 hours duration;

(II) is not part of an archived program of 5 hours or greater in

duration that is made available for a period exceeding 2 weeks;

(III) is not part of a continuous program which is of less than 3 hours

duration; or

(IV) is not part of an identifiable program in which performances of

sound recordings are rendered in a predetermined order, other than an

archived or continuous program, that is transmitted at-

(aa) more than 3 times in any 2-week period that have been publicly

announced in advance, in the case of a program of less than 1 hour in

duration, or

(bb) more than 4 times in any 2-week period that have been publicly

announced in advance, in the case of a program of 1 hour or more in

duration, except that the requirement of this subclause shall not apply

in the case of a retransmission of a broadcast transmission by a

transmitting entity that does not have the right or ability to control

the programming of the broadcast transmission, unless the transmitting

entity is given notice in writing by the copyright owner of the sound

recording that the broadcast station makes broadcast transmissions that

regularly violate such requirement;

(iv) the transmitting entity does not knowingly perform the sound

recording, as part of a service that offers transmissions of visual

images contemporaneously with transmissions of sound recordings, in a

manner that is likely to cause confusion, to cause mistake, or to

deceive, as to the affiliation, connection, or association of the

copyright owner or featured recording artist with the transmitting

entity or a particular product or service advertised by the transmitting

entity, or as to the origin, sponsorship, or approval by the copyright

owner or featured recording artist of the activities of the transmitting

entity other than the performance of the sound recording itself;

(v) the transmitting entity cooperates to prevent, to the extent

feasible without imposing substantial costs or burdens, a transmission

recipient or any other person or entity from automatically scanning the

transmitting entity's transmissions alone or together with transmissions

by other transmitting entities in order to select a particular sound

recording to be transmitted to the transmission recipient, except that

the requirement of this clause shall not apply to a satellite digital

audio service that is in operation, or that is licensed by the Federal

Communications Commission, on or before July 31, 1998;

(vi) the transmitting entity takes no affirmative steps to cause or

induce the making of a phonorecord by the transmission recipient, and if

the technology used by the transmitting entity enables the transmitting

entity to limit the making by the transmission recipient of phonorecords

of the transmission directly in a digital format, the transmitting

entity sets such technology to limit such making of phonorecords to the

extent permitted by such technology;

(vii) phonorecords of the sound recording have been distributed to the

public under