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U.S. Code as of:
01/19/04
Section 111. Limitations on exclusive rights: Secondary transmissions
(a) Certain Secondary Transmissions Exempted. - The secondary
transmission of a performance or display of a work embodied in a
primary transmission is not an infringement of copyright if -
(1) the secondary transmission is not made by a cable system,
and consists entirely of the relaying, by the management of a
hotel, apartment house, or similar establishment, of signals
transmitted by a broadcast station licensed by the Federal
Communications Commission, within the local service area of such
station, to the private lodgings of guests or residents of such
establishment, and no direct charge is made to see or hear the
secondary transmission; or
(2) the secondary transmission is made solely for the purpose
and under the conditions specified by clause (2) of section 110;
or
(3) the secondary transmission is made by any carrier who has
no direct or indirect control over the content or selection of
the primary transmission or over the particular recipients of the
secondary transmission, and whose activities with respect to the
secondary transmission consist solely of providing wires, cables,
or other communications channels for the use of others: Provided,
That the provisions of this clause extend only to the activities
of said carrier with respect to secondary transmissions and do
not exempt from liability the activities of others with respect
to their own primary or secondary transmissions;
(4) the secondary transmission is made by a satellite carrier
for private home viewing pursuant to a statutory license under
section 119; or
(5) the secondary transmission is not made by a cable system
but is made by a governmental body, or other nonprofit
organization, without any purpose of direct or indirect
commercial advantage, and without charge to the recipients of the
secondary transmission other than assessments necessary to defray
the actual and reasonable costs of maintaining and operating the
secondary transmission service.
(b) Secondary Transmission of Primary Transmission to Controlled
Group. - Notwithstanding the provisions of subsections (a) and (c),
the secondary transmission to the public of a performance or
display of a work embodied in a primary transmission is actionable
as an act of infringement under section 501, and is fully subject
to the remedies provided by sections 502 through 506 and 509, if
the primary transmission is not made for reception by the public at
large but is controlled and limited to reception by particular
members of the public: Provided, however, That such secondary
transmission is not actionable as an act of infringement if -
(1) the primary transmission is made by a broadcast station
licensed by the Federal Communications Commission; and
(2) the carriage of the signals comprising the secondary
transmission is required under the rules, regulations, or
authorizations of the Federal Communications Commission; and
(3) the signal of the primary transmitter is not altered or
changed in any way by the secondary transmitter.
(c) Secondary Transmissions by Cable Systems. -
(1) Subject to the provisions of clauses (2), (3), and (4) of
this subsection and section 114(d), secondary transmissions to
the public by a cable system of a performance or display of a
work embodied in a primary transmission made by a broadcast
station licensed by the Federal Communications Commission or by
an appropriate governmental authority of Canada or Mexico shall
be subject to statutory licensing upon compliance with the
requirements of subsection (d) where the carriage of the signals
comprising the secondary transmission is permissible under the
rules, regulations, or authorizations of the Federal
Communications Commission.
(2) Notwithstanding the provisions of clause (1) of this
subsection, the willful or repeated secondary transmission to the
public by a cable system of a primary transmission made by a
broadcast station licensed by the Federal Communications
Commission or by an appropriate governmental authority of Canada
or Mexico and embodying a performance or display of a work is
actionable as an act of infringement under section 501, and is
fully subject to the remedies provided by sections 502 through
506 and 509, in the following cases:
(A) where the carriage of the signals comprising the
secondary transmission is not permissible under the rules,
regulations, or authorizations of the Federal Communications
Commission; or
(B) where the cable system has not deposited the statement of
account and royalty fee required by subsection (d).
(3) Notwithstanding the provisions of clause (1) of this
subsection and subject to the provisions of subsection (e) of
this section, the secondary transmission to the public by a cable
system of a performance or display of a work embodied in a
primary transmission made by a broadcast station licensed by the
Federal Communications Commission or by an appropriate
governmental authority of Canada or Mexico is actionable as an
act of infringement under section 501, and is fully subject to
the remedies provided by sections 502 through 506 and sections
509 and 510, if the content of the particular program in which
the performance or display is embodied, or any commercial
advertising or station announcements transmitted by the primary
transmitter during, or immediately before or after, the
transmission of such program, is in any way willfully altered by
the cable system through changes, deletions, or additions, except
for the alteration, deletion, or substitution of commercial
advertisements performed by those engaged in television
commercial advertising market research: Provided, That the
research company has obtained the prior consent of the advertiser
who has purchased the original commercial advertisement, the
television station broadcasting that commercial advertisement,
and the cable system performing the secondary transmission: And
provided further, That such commercial alteration, deletion, or
substitution is not performed for the purpose of deriving income
from the sale of that commercial time.
(4) Notwithstanding the provisions of clause (1) of this
subsection, the secondary transmission to the public by a cable
system of a performance or display of a work embodied in a
primary transmission made by a broadcast station licensed by an
appropriate governmental authority of Canada or Mexico 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, if (A) with respect to Canadian signals, the
community of the cable system is located more than 150 miles from
the United States-Canadian border and is also located south of
the forty-second parallel of latitude, or (B) with respect to
Mexican signals, the secondary transmission is made by a cable
system which received the primary transmission by means other
than direct interception of a free space radio wave emitted by
such broadcast television station, unless prior to April 15,
1976, such cable system was actually carrying, or was
specifically authorized to carry, the signal of such foreign
station on the system pursuant to the rules, regulations, or
authorizations of the Federal Communications Commission.
(d) Statutory License for Secondary Transmissions by Cable
Systems. -
(1) A cable system whose secondary transmissions have been
subject to statutory licensing under subsection (c) shall, on a
semiannual basis, deposit with the Register of Copyrights, in
accordance with requirements that the Register shall prescribe by
regulation -
(A) a statement of account, covering the six months next
preceding, specifying the number of channels on which the cable
system made secondary transmissions to its subscribers, the
names and locations of all primary transmitters whose
transmissions were further transmitted by the cable system, the
total number of subscribers, the gross amounts paid to the
cable system for the basic service of providing secondary
transmissions of primary broadcast transmitters, and such other
data as the Register of Copyrights may from time to time
prescribe by regulation. In determining the total number of
subscribers and the gross amounts paid to the cable system for
the basic service of providing secondary transmissions of
primary broadcast transmitters, the system shall not include
subscribers and amounts collected from subscribers receiving
secondary transmissions for private home viewing pursuant to
section 119. Such statement shall also include a special
statement of account covering any nonnetwork television
programming that was carried by the cable system in whole or in
part beyond the local service area of the primary transmitter,
under rules, regulations, or authorizations of the Federal
Communications Commission permitting the substitution or
addition of signals under certain circumstances, together with
logs showing the times, dates, stations, and programs involved
in such substituted or added carriage; and
(B) except in the case of a cable system whose royalty is
specified in subclause (C) or (D), a total royalty fee for the
period covered by the statement, computed on the basis of
specified percentages of the gross receipts from subscribers to
the cable service during said period for the basic service of
providing secondary transmissions of primary broadcast
transmitters, as follows:
(i) 0.675 of 1 per centum of such gross receipts for the
privilege of further transmitting any nonnetwork programming
of a primary transmitter in whole or in part beyond the local
service area of such primary transmitter, such amount to be
applied against the fee, if any, payable pursuant to
paragraphs (ii) through (iv);
(ii) 0.675 of 1 per centum of such gross receipts for the
first distant signal equivalent;
(iii) 0.425 of 1 per centum of such gross receipts for each
of the second, third, and fourth distant signal equivalents;
(iv) 0.2 of 1 per centum of such gross receipts for the
fifth distant signal equivalent and each additional distant
signal equivalent thereafter; and
in computing the amounts payable under paragraphs (ii) through
(iv), above, any fraction of a distant signal equivalent shall
be computed at its fractional value and, in the case of any
cable system located partly within and partly without the local
service area of a primary transmitter, gross receipts shall be
limited to those gross receipts derived from subscribers
located without the local service area of such primary
transmitter; and
(C) if the actual gross receipts paid by subscribers to a
cable system for the period covered by the statement for the
basic service of providing secondary transmissions of primary
broadcast transmitters total $80,000 or less, gross receipts of
the cable system for the purpose of this subclause shall be
computed by subtracting from such actual gross receipts the
amount by which $80,000 exceeds such actual gross receipts,
except that in no case shall a cable system's gross receipts be
reduced to less than $3,000. The royalty fee payable under this
subclause shall be 0.5 of 1 per centum, regardless of the
number of distant signal equivalents, if any; and
(D) if the actual gross receipts paid by subscribers to a
cable system for the period covered by the statement, for the
basic service of providing secondary transmissions of primary
broadcast transmitters, are more than $80,000 but less than
$160,000, the royalty fee payable under this subclause shall be
(i) 0.5 of 1 per centum of any gross receipts up to $80,000;
and (ii) 1 per centum of any gross receipts in excess of
$80,000 but less than $160,000, regardless of the number of
distant signal equivalents, if any.
(2) The Register of Copyrights shall receive all fees deposited
under this section and, after deducting the reasonable costs
incurred by the Copyright Office under this section, shall
deposit the balance in the Treasury of the United States, in such
manner as the Secretary of the Treasury directs. All funds held
by the Secretary of the Treasury shall be invested in
interest-bearing United States securities for later distribution
with interest by the Librarian of Congress in the event no
controversy over distribution exists, or by a copyright
arbitration royalty panel in the event a controversy over such
distribution exists.
(3) The royalty fees thus deposited shall, in accordance with
the procedures provided by clause (4), be distributed to those
among the following copyright owners who claim that their works
were the subject of secondary transmissions by cable systems
during the relevant semiannual period:
(A) any such owner whose work was included in a secondary
transmission made by a cable system of a nonnetwork television
program in whole or in part beyond the local service area of
the primary transmitter; and
(B) any such owner whose work was included in a secondary
transmission identified in a special statement of account
deposited under clause (1)(A);
(C) any such owner whose work was included in nonnetwork
programming consisting exclusively of aural signals carried by
a cable system in whole or in part beyond the local service
area of the primary transmitter of such programs.
(4) The royalty fees thus deposited shall be distributed in
accordance with the following procedures:
(A) During the month of July in each year, every person
claiming to be entitled to statutory license fees for secondary
transmissions shall file a claim with the Librarian of
Congress, in accordance with requirements that the Librarian of
Congress shall prescribe by regulation. Notwithstanding any
provisions of the antitrust laws, for purposes of this clause
any claimants may agree among themselves as to the
proportionate division of statutory licensing fees among them,
may lump their claims together and file them jointly or as a
single claim, or may designate a common agent to receive
payment on their behalf.
(B) After the first day of August of each year, the Librarian
of Congress shall, upon the recommendation of the Register of
Copyrights, determine whether there exists a controversy
concerning the distribution of royalty fees. If the Librarian
determines that no such controversy exists, the Librarian
shall, after deducting reasonable administrative costs under
this section, distribute such fees to the copyright owners
entitled to such fees, or to their designated agents. If the
Librarian finds the existence of a controversy, the Librarian
shall, pursuant to chapter 8 of this title, convene a copyright
arbitration royalty panel to determine the distribution of
royalty fees.
(C) During the pendency of any proceeding under this
subsection, the Librarian of Congress shall withhold from
distribution an amount sufficient to satisfy all claims with
respect to which a controversy exists, but shall have
discretion to proceed to distribute any amounts that are not in
controversy.
(e) Nonsimultaneous Secondary Transmissions by Cable Systems. -
(1) Notwithstanding those provisions of the second paragraph of
subsection (f) relating to nonsimultaneous secondary
transmissions by a cable system, any such transmissions are
actionable as an act of infringement under section 501, and are
fully subject to the remedies provided by sections 502 through
506 and sections 509 and 510, unless -
(A) the program on the videotape is transmitted no more than
one time to the cable system's subscribers; and
(B) the copyrighted program, episode, or motion picture
videotape, including the commercials contained within such
program, episode, or picture, is transmitted without deletion
or editing; and
(C) an owner or officer of the cable system (i) prevents the
duplication of the videotape while in the possession of the
system, (ii) prevents unauthorized duplication while in the
possession of the facility making the videotape for the system
if the system owns or controls the facility, or takes
reasonable precautions to prevent such duplication if it does
not own or control the facility, (iii) takes adequate
precautions to prevent duplication while the tape is being
transported, and (iv) subject to clause (2), erases or
destroys, or causes the erasure or destruction of, the
videotape; and
(D) within forty-five days after the end of each calendar
quarter, an owner or officer of the cable system executes an
affidavit attesting (i) to the steps and precautions taken to
prevent duplication of the videotape, and (ii) subject to
clause (2), to the erasure or destruction of all videotapes
made or used during such quarter; and
(E) such owner or officer places or causes each such
affidavit, and affidavits received pursuant to clause (2)(C),
to be placed in a file, open to public inspection, at such
system's main office in the community where the transmission is
made or in the nearest community where such system maintains an
office; and
(F) the nonsimultaneous transmission is one that the cable
system would be authorized to transmit under the rules,
regulations, and authorizations of the Federal Communications
Commission in effect at the time of the nonsimultaneous
transmission if the transmission had been made simultaneously,
except that this subclause shall not apply to inadvertent or
accidental transmissions.
(2) If a cable system transfers to any person a videotape of a
program nonsimultaneously transmitted by it, such transfer is
actionable as an act of infringement under section 501, and is
fully subject to the remedies provided by sections 502 through
506 and 509, except that, pursuant to a written, nonprofit
contract providing for the equitable sharing of the costs of such
videotape and its transfer, a videotape nonsimultaneously
transmitted by it, in accordance with clause (1), may be
transferred by one cable system in Alaska to another system in
Alaska, by one cable system in Hawaii permitted to make such
nonsimultaneous transmissions to another such cable system in
Hawaii, or by one cable system in Guam, the Northern Mariana
Islands, or the Trust Territory of the Pacific Islands, to
another cable system in any of those three territories, if -
(A) each such contract is available for public inspection in
the offices of the cable systems involved, and a copy of such
contract is filed, within thirty days after such contract is
entered into, with the Copyright Office (which Office shall
make each such contract available for public inspection); and
(B) the cable system to which the videotape is transferred
complies with clause (1)(A), (B), (C)(i), (iii), and (iv), and
(D) through (F); and
(C) such system provides a copy of the affidavit required to
be made in accordance with clause (1)(D) to each cable system
making a previous nonsimultaneous transmission of the same
videotape.
(3) This subsection shall not be construed to supersede the
exclusivity protection provisions of any existing agreement, or
any such agreement hereafter entered into, between a cable system
and a television broadcast station in the area in which the cable
system is located, or a network with which such station is
affiliated.
(4) As used in this subsection, the term "videotape", and each
of its variant forms, means the reproduction of the images and
sounds of a program or programs broadcast by a television
broadcast station licensed by the Federal Communications
Commission, regardless of the nature of the material objects,
such as tapes or films, in which the reproduction is embodied.
(f) Definitions. - As used in this section, the following terms
and their variant forms mean the following:
A "primary transmission" is a transmission made to the public
by the transmitting facility whose signals are being received and
further transmitted by the secondary transmission service,
regardless of where or when the performance or display was first
transmitted.
A "secondary transmission" is the further transmitting of a
primary transmission simultaneously with the primary
transmission, or nonsimultaneously with the primary transmission
if by a "cable system" not located in whole or in part within the
boundary of the forty-eight contiguous States, Hawaii, or Puerto
Rico: Provided, however, That a nonsimultaneous further
transmission by a cable system located in Hawaii of a primary
transmission shall be deemed to be a secondary transmission if
the carriage of the television broadcast signal comprising such
further transmission is permissible under the rules, regulations,
or authorizations of the Federal Communications Commission.
A "cable system" is a facility, located in any State,
Territory, Trust Territory, or Possession, that in whole or in
part receives signals transmitted or programs broadcast by one or
more television broadcast stations licensed by the Federal
Communications Commission, and makes secondary transmissions of
such signals or programs by wires, cables, microwave, or other
communications channels to subscribing members of the public who
pay for such service. For purposes of determining the royalty fee
under subsection (d)(1), two or more cable systems in contiguous
communities under common ownership or control or operating from
one headend shall be considered as one system.
The "local service area of a primary transmitter", in the case
of a television broadcast station, comprises the area in which
such station is entitled to insist upon its signal being
retransmitted by a cable system pursuant to the rules,
regulations, and authorizations of the Federal Communications
Commission in effect on April 15, 1976, or such station's
television market as defined in section 76.55(e) of title 47,
Code of Federal Regulations (as in effect on September 18, 1993),
or any modifications to such television market made, on or after
September 18, 1993, pursuant to section 76.55(e) or 76.59 of
title 47 of the Code of Federal Regulations, or in the case of a
television broadcast station licensed by an appropriate
governmental authority of Canada or Mexico, the area in which it
would be entitled to insist upon its signal being retransmitted
if it were a television broadcast station subject to such rules,
regulations, and authorizations. In the case of a low power
television station, as defined by the rules and regulations of
the Federal Communications Commission, the "local service area of
a primary transmitter" comprises the area within 35 miles of the
transmitter site, except that in the case of such a station
located in a standard metropolitan statistical area which has one
of the 50 largest populations of all standard metropolitan
statistical areas (based on the 1980 decennial census of
population taken by the Secretary of Commerce), the number of
miles shall be 20 miles. The "local service area of a primary
transmitter", in the case of a radio broadcast station, comprises
the primary service area of such station, pursuant to the rules
and regulations of the Federal Communications Commission.
A "distant signal equivalent" is the value assigned to the
secondary transmission of any nonnetwork television programming
carried by a cable system in whole or in part beyond the local
service area of the primary transmitter of such programming. It
is computed by assigning a value of one to each independent
station and a value of one-quarter to each network station and
noncommercial educational station for the nonnetwork programming
so carried pursuant to the rules, regulations, and authorizations
of the Federal Communications Commission. The foregoing values
for independent, network, and noncommercial educational stations
are subject, however, to the following exceptions and
limitations. Where the rules and regulations of the Federal
Communications Commission require a cable system to omit the
further transmission of a particular program and such rules and
regulations also permit the substitution of another program
embodying a performance or display of a work in place of the
omitted transmission, or where such rules and regulations in
effect on the date of enactment of this Act permit a cable
system, at its election, to effect such deletion and substitution
of a nonlive program or to carry additional programs not
transmitted by primary transmitters within whose local service
area the cable system is located, no value shall be assigned for
the substituted or additional program; where the rules,
regulations, or authorizations of the Federal Communications
Commission in effect on the date of enactment of this Act permit
a cable system, at its election, to omit the further transmission
of a particular program and such rules, regulations, or
authorizations also permit the substitution of another program
embodying a performance or display of a work in place of the
omitted transmission, the value assigned for the substituted or
additional program shall be, in the case of a live program, the
value of one full distant signal equivalent multiplied by a
fraction that has as its numerator the number of days in the year
in which such substitution occurs and as its denominator the
number of days in the year. In the case of a station carried
pursuant to the late-night or specialty programming rules of the
Federal Communications Commission, or a station carried on a
part-time basis where full-time carriage is not possible because
the cable system lacks the activated channel capacity to
retransmit on a full-time basis all signals which it is
authorized to carry, the values for independent, network, and
noncommercial educational stations set forth above, as the case
may be, shall be multiplied by a fraction which is equal to the
ratio of the broadcast hours of such station carried by the cable
system to the total broadcast hours of the station.
A "network station" is a television broadcast station that is
owned or operated by, or affiliated with, one or more of the
television networks in the United States providing nationwide
transmissions, and that transmits a substantial part of the
programming supplied by such networks for a substantial part of
that station's typical broadcast day.
An "independent station" is a commercial television broadcast
station other than a network station.
A "noncommercial educational station" is a television station
that is a noncommercial educational broadcast station as defined
in section 397 of title 47.
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