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U.S. Code as of:
01/19/04
Section 122. Limitations on exclusive rights: Secondary transmissions by satellite carriers within local markets
(a) Secondary Transmissions of Television Broadcast Stations by
Satellite Carriers. - A secondary transmission of a performance or
display of a work embodied in a primary transmission of a
television broadcast station into the station's local market shall
be subject to statutory licensing under this section if -
(1) the secondary transmission is made by a satellite carrier
to the public;
(2) with regard to secondary transmissions, the satellite
carrier is in compliance with the rules, regulations, or
authorizations of the Federal Communications Commission governing
the carriage of television broadcast station signals; and
(3) the satellite carrier makes a direct or indirect charge for
the secondary transmission to -
(A) each subscriber receiving the secondary transmission; or
(B) a distributor that has contracted with the satellite
carrier for direct or indirect delivery of the secondary
transmission to the public.
(b) Reporting Requirements. -
(1) Initial lists. - A satellite carrier that makes secondary
transmissions of a primary transmission made by a network station
under subsection (a) shall, within 90 days after commencing such
secondary transmissions, submit to the network that owns or is
affiliated with the network station a list identifying (by name
in alphabetical order and street address, including county and
zip code) all subscribers to which the satellite carrier makes
secondary transmissions of that primary transmission under
subsection (a).
(2) Subsequent lists. - After the list is submitted under
paragraph (1), the satellite carrier shall, on the 15th of each
month, submit to the network a list identifying (by name in
alphabetical order and street address, including county and zip
code) any subscribers who have been added or dropped as
subscribers since the last submission under this subsection.
(3) Use of subscriber information. - Subscriber information
submitted by a satellite carrier under this subsection may be
used only for the purposes of monitoring compliance by the
satellite carrier with this section.
(4) Requirements of networks. - The submission requirements of
this subsection shall apply to a satellite carrier only if the
network to which the submissions are to be made places on file
with the Register of Copyrights a document identifying the name
and address of the person to whom such submissions are to be
made. The Register of Copyrights shall maintain for public
inspection a file of all such documents.
(c) No Royalty Fee Required. - A satellite carrier whose
secondary transmissions are subject to statutory licensing under
subsection (a) shall have no royalty obligation for such secondary
transmissions.
(d) Noncompliance With Reporting and Regulatory Requirements. -
Notwithstanding subsection (a), the willful or repeated secondary
transmission to the public by a satellite carrier into the local
market of a television broadcast station of a primary transmission
embodying a performance or display of a work made by that
television broadcast station is actionable as an act of
infringement under section 501, and is fully subject to the
remedies provided under sections 502 through 506 and 509, if the
satellite carrier has not complied with the reporting requirements
of subsection (b) or with the rules, regulations, and
authorizations of the Federal Communications Commission concerning
the carriage of television broadcast signals.
(e) Willful Alterations. - Notwithstanding subsection (a), the
secondary transmission to the public by a satellite carrier into
the local market of a television broadcast station of a performance
or display of a work embodied in a primary transmission made by
that television broadcast station 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 announcement transmitted by the primary transmitter
during, or immediately before or after, the transmission of such
program, is in any way willfully altered by the satellite carrier
through changes, deletions, or additions, or is combined with
programming from any other broadcast signal.
(f) Violation of Territorial Restrictions on Statutory License
for Television Broadcast Stations. -
(1) Individual violations. - The willful or repeated secondary
transmission to the public by a satellite carrier of a primary
transmission embodying a performance or display of a work made by
a television broadcast station to a subscriber who does not
reside in that station's local market, and is not subject to
statutory licensing under section 119 or a private licensing
agreement, 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 -
(A) no damages shall be awarded for such act of infringement
if the satellite carrier took corrective action by promptly
withdrawing service from the ineligible subscriber; and
(B) any statutory damages shall not exceed $5 for such
subscriber for each month during which the violation occurred.
(2) Pattern of violations. - If a satellite carrier engages in
a willful or repeated pattern or practice of secondarily
transmitting to the public a primary transmission embodying a
performance or display of a work made by a television broadcast
station to subscribers who do not reside in that station's local
market, and are not subject to statutory licensing under section
119 or a private licensing agreement, then in addition to the
remedies under paragraph (1) -
(A) if the pattern or practice has been carried out on a
substantially nationwide basis, the court -
(i) shall order a permanent injunction barring the
secondary transmission by the satellite carrier of the
primary transmissions of that television broadcast station
(and if such television broadcast station is a network
station, all other television broadcast stations affiliated
with such network); and
(ii) may order statutory damages not exceeding $250,000 for
each 6-month period during which the pattern or practice was
carried out; and
(B) if the pattern or practice has been carried out on a
local or regional basis with respect to more than one
television broadcast station, the court -
(i) shall order a permanent injunction barring the
secondary transmission in that locality or region by the
satellite carrier of the primary transmissions of any
television broadcast station; and
(ii) may order statutory damages not exceeding $250,000 for
each 6-month period during which the pattern or practice was
carried out.
(g) Burden of Proof. - In any action brought under subsection
(f), the satellite carrier shall have the burden of proving that
its secondary transmission of a primary transmission by a
television broadcast station is made only to subscribers located
within that station's local market or subscribers being served in
compliance with section 119 or a private licensing agreement.
(h) Geographic Limitations on Secondary Transmissions. - The
statutory license created by this section shall apply to secondary
transmissions to locations in the United States.
(i) Exclusivity With Respect to Secondary Transmissions of
Broadcast Stations by Satellite to Members of the Public. - No
provision of section 111 or any other law (other than this section
and section 119) shall be construed to contain any authorization,
exemption, or license through which secondary transmissions by
satellite carriers of programming contained in a primary
transmission made by a television broadcast station may be made
without obtaining the consent of the copyright owner.
(j) Definitions. - In this section -
(1) Distributor. - The term "distributor" means an entity which
contracts to distribute secondary transmissions from a satellite
carrier and, either as a single channel or in a package with
other programming, provides the secondary transmission either
directly to individual subscribers or indirectly through other
program distribution entities.
(2) Local market. -
(A) In general. - The term "local market", in the case of
both commercial and noncommercial television broadcast
stations, means the designated market area in which a station
is located, and -
(i) in the case of a commercial television broadcast
station, all commercial television broadcast stations
licensed to a community within the same designated market
area are within the same local market; and
(ii) in the case of a noncommercial educational television
broadcast station, the market includes any station that is
licensed to a community within the same designated market
area as the noncommercial educational television broadcast
station.
(B) County of license. - In addition to the area described in
subparagraph (A), a station's local market includes the county
in which the station's community of license is located.
(C) Designated market area. - For purposes of subparagraph
(A), the term "designated market area" means a designated
market area, as determined by Nielsen Media Research and
published in the 1999-2000 Nielsen Station Index Directory and
Nielsen Station Index United States Television Household
Estimates or any successor publication.
(3) Network station; satellite carrier; secondary transmission.
- The terms "network station", "satellite carrier", and
"secondary transmission" have the meanings given such terms under
section 119(d).
(4) Subscriber. - The term "subscriber" means a person who
receives a secondary transmission service from a satellite
carrier and pays a fee for the service, directly or indirectly,
to the satellite carrier or to a distributor.
(5) Television broadcast station. - The term "television
broadcast station" -
(A) means an over-the-air, commercial or noncommercial
television broadcast station licensed by the Federal
Communications Commission under subpart E of part 73 of title
47, Code of Federal Regulations, except that such term does not
include a low-power or translator television station; and
(B) includes a television broadcast station licensed by an
appropriate governmental authority of Canada or Mexico if the
station broadcasts primarily in the English language and is a
network station as defined in section 119(d)(2)(A).
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