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

license in that musical work under paragraphs (1) and (3) of section

106, to a person desiring to fix in a tangible medium of expression a

sound recording embodying the musical work.

(ii) The second sentence of clause (i) shall not apply to-

(I) a contract entered into on or before June 22, 1995 and not modified

thereafter for the purpose of reducing the royalty rates determined

pursuant to subparagraph (C), (D) or (F) or of increasing the number of

musical works within the scope of the contract covered by the reduced

rates, except if a contract entered into on or before June 22, 1995, is

modified thereafter for the purpose of increasing the number of musical

works within the scope of the contract, any contrary royalty rates

specified in the contract shall be given effect in lieu of royalty rates

determined pursuant to subparagraph (C), (D) or (F) for the number of

musical works within the scope of the contract as of June 22, 1995; and

(II) a contract entered into after the date that the sound recording is

fixed in a tangible medium of expression substantially in a form

intended for commercial release, if at the time the contract is entered

into, the recording artist retains the right to grant licenses as to the

musical work under paragraphs (1) and (3) of section 106.

(F) The procedures specified in subparagraphs (C) and (D) shall be

repeated and concluded, in accordance with regulations that the

Librarian of Congress shall prescribe, in each fifth calendar year after

1997, except to the extent that different years for the repeating and

concluding of such proceedings may be determined in accordance with

subparagraphs (B) and (C).

(G) Except as provided in section 1002(e) of this title, a digital

phonorecord delivery licensed under this paragraph shall be accompanied

by the information encoded in the 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.

(H)(i) A digital phonorecord delivery of a sound recording is actionable

as an act of infringement under section 501, and is fully subject to the

remedies provided by sections 502 through 506 and section 509, unless-

(I) the digital phonorecord delivery has been authorized by the

copyright owner of the sound recording; and

(II) the owner of the copyright in the sound recording or the entity

making the digital phonorecord delivery has obtained a compulsory

license under this section or has otherwise been authorized by the

copyright owner of the musical work to distribute or authorize the

distribution, by means of a digital phonorecord delivery, of each

musical work embodied in the sound recording.

(ii) Any cause of action under this subparagraph shall be in addition to

those available to the owner of the copyright in the nondramatic musical

work under subsection (c)(6) and section 106(4) and the owner of the

copyright in the sound recording under section 106(6).

(I) The liability of the copyright owner of a sound recording for

infringement of the copyright in a nondramatic musical work embodied in

the sound recording shall be determined in accordance with applicable

law, except that the owner of a copyright in a sound recording shall not

be liable for a digital phonorecord delivery by a third party if the

owner of the copyright in the sound recording does not license the

distribution of a phonorecord of the nondramatic musical work.

(J) Nothing in section 1008 shall be construed to prevent the exercise

of the rights and remedies allowed by this paragraph, paragraph (6), and

chapter 5 in the event of a digital phonorecord delivery, except that no

action alleging infringement of copyright may be brought under this

title against a manufacturer, importer or distributor of a digital audio

recording device, a digital audio recording medium, an analog recording

device, or an analog recording medium, or against a consumer, based on

the actions described in such section.

(K) Nothing in this section annuls or limits

(i) the exclusive right to publicly perform a sound recording or the

musical work embodied therein, including by means of a digital

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

(ii) except for compulsory licensing under the conditions specified by

this section, the exclusive rights to reproduce and distribute the sound

recording and the musical work embodied therein under sections 106(1)

and 106(3), including by means of a digital phonorecord delivery, or

(iii) any other rights under any other provision of section 106, or

remedies available under this title, as such rights or remedies exist

either before or after the date of enactment of the Digital Performance

Right in Sound Recordings Act of 1995.

(L) The provisions of this section concerning digital phonorecord

deliveries shall not apply to any exempt transmissions or

retransmissions under section 114(d)(1). The exemptions created in

section 114(d)(1) do not expand or reduce the rights of copyright owners

under section 106(1) through (5) with respect to such transmissions and

retransmissions.

(4) A compulsory license under this section includes the right of the

maker of a phonorecord of a nondramatic musical work under subsection

(a)(1) to distribute or authorize distribution of such phonorecord by

rental, lease, or lending (or by acts or practices in the nature of

rental, lease, or lending). In addition to any royalty payable under

clause (2) and chapter 8 of this title, a royalty shall be payable by

the compulsory licensee for every act of distribution of a phonorecord

by or in the nature of rental, lease, or lending, by or under the

authority of the compulsory licensee. With respect to each nondramatic

musical work embodied in the phonorecord, the royalty shall be a

proportion of the revenue received by the compulsory licensee from every

such act of distribution of the phonorecord under this clause equal to

the proportion of the revenue received by the compulsory licensee from

distribution of the phonorecord under clause (2) that is payable by a

compulsory licensee under that clause and under chapter 8. The Register

of Copyrights shall issue regulations to carry out the purpose of this

clause.

(5) Royalty payments shall be made on or before the twentieth day of

each month and shall include all royalties for the month next preceding.

Each monthly payment shall be made under oath and shall comply with

requirements that the Register of Copyrights shall prescribe by

regulation. The Register shall also prescribe regulations under which

detailed cumulative annual statements of account, certified by a

certified public accountant, shall be filed for every compulsory license

under this section. The regulations covering both the monthly and the

annual statements of account shall prescribe the form, content, and

manner of certification with respect to the number of records made and

the number of records distributed.

(6) If the copyright owner does not receive the monthly payment and the

monthly and annual statements of account when due, the owner may give

written notice to the licensee that, unless the default is remedied

within thirty days from the date of the notice, the compulsory license

will be automatically terminated. Such termination renders either the

making or the distribution, or both, of all phonorecords for which the

royalty has not been paid, actionable as acts of infringement under

section 501 and fully subject to the remedies provided by sections 502

through 506 and 509.

(d) Definition. As used in this section, the following term has the

following meaning: A "digital phonorecord delivery" is each individual

delivery of a phonorecord by digital transmission of a sound recording

which results in a specifically identifiable reproduction by or for any

transmission recipient of a phonorecord of that sound recording,

regardless of whether the digital transmission is also a public

performance of the sound recording or any nondramatic musical work

embodied therein. A digital phonorecord delivery does not result from a

real-time, non-interactive subscription transmission of a sound

recording where no reproduction of the sound recording or the musical

work embodied therein is made from the inception of the transmission

through to its receipt by the transmission recipient in order to make

the sound recording audible.

Section 116. Negotiated licenses for public performances by means of coin-

operated phonorecord players [52]

(a) Applicability of Section. This section applies to any nondramatic

musical work embodied in a phonorecord.

(b) Negotiated Licenses.-

(1) Authority for negotiations. Any owners 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 proportionate

division of fees paid among copyright owners, and may designate common

agents to negotiate, agree to, pay, or receive such royalty payments.

(2) Arbitration. Parties not subject to such a negotiation, may

determine, by arbitration in accordance with the provisions of chapter

8, the terms and rates and the division of fees described in paragraph

(1).

(c) License Agreements Superior to Copyright Arbitration Royalty Panel

Determinations. License agreements between one or more copyright owners

and one or more operators of coin-operated phonorecord players, which

are negotiated in accordance with subsection (b), shall be given effect

in lieu of any otherwise applicable determination by a copyright

arbitration royalty panel.

(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 comprised of the titles of all the

musical works available for performance on it, and is affixed to the

phonorecord player or posted in the establishment in a prominent

position where it can be readily examined by the public; 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 control over the selection of the

musical works made available for public performance on a coin-operated

phonorecord player.

Section 117. Limitations on exclusive rights: Computer programs [53]

(a) Making of Additional Copy or Adaptation by Owner of Copy.

Notwithstanding the provisions of section 106, it is not an infringement

for the owner of a copy of a computer program to make or authorize the

making of another copy or adaptation of that computer program provided:

(1) that such a new copy or adaptation is created as an essential step

in the utilization of the computer program in conjunction with a machine

and that it is used in no other manner, or

(2) that such new copy or adaptation is for archival purposes only and

that all archival copies are destroyed in the event that continued

possession of the computer program should cease to be rightful.

(b) Lease, Sale, or Other Transfer of Additional 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 transferred only with the authorization of the copyright owner.

(c) Machine Maintenance or Repair. Notwithstanding the provisions of

section 106, it is not an infringement for