§ 106. — Exclusive rights in copyrighted works.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 17USC106]
TITLE 17--COPYRIGHTS
CHAPTER 1--SUBJECT MATTER AND SCOPE OF COPYRIGHT
Sec. 106. Exclusive rights in copyrighted works
Subject to sections 107 through 122, the owner of copyright under
this title has the exclusive rights to do and to authorize any of the
following:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work
to the public by sale or other transfer of ownership, or by rental,
lease, or lending;
(4) in the case of literary, musical, dramatic, and
choreographic works, pantomimes, and motion pictures and other
audiovisual works, to perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and
choreographic works, pantomimes, and pictorial, graphic, or
sculptural works, including the individual images of a motion
picture or other audiovisual work, to display the copyrighted work
publicly; and
(6) in the case of sound recordings, to perform the copyrighted
work publicly by means of a digital audio transmission.
(Pub. L. 94-553, title I, Sec. 101, Oct. 19, 1976, 90 Stat. 2546; Pub.
L. 101-318, Sec. 3(d), July 3, 1990, 104 Stat. 288; Pub. L. 101-650,
title VII, Sec. 704(b)(2), Dec. 1, 1990, 104 Stat. 5134; Pub. L. 104-39,
Sec. 2, Nov. 1, 1995, 109 Stat. 336; Pub. L. 106-44, Sec. 1(g)(2), Aug.
5, 1999, 113 Stat. 222; Pub. L. 107-273, div. C, title III,
Sec. 13210(4)(A), Nov. 2, 2002, 116 Stat. 1909.)
Historical and Revision Notes
house report no. 94-1476
General Scope of Copyright. The five fundamental rights that the
bill gives to copyright owners--the exclusive rights of reproduction,
adaptation, publication, performance, and display--are stated generally
in section 106. These exclusive rights, which comprise the so-called
``bundle of rights'' that is a copyright, are cumulative and may overlap
in some cases. Each of the five enumerated rights may be subdivided
indefinitely and, as discussed below in connection with section 201,
each subdivision of an exclusive right may be owned and enforced
separately.
The approach of the bill is to set forth the copyright owner's
exclusive rights in broad terms in section 106, and then to provide
various limitations, qualifications, or exemptions in the 12 sections
that follow. Thus, everything in section 106 is made ``subject to
sections 107 through 118'', and must be read in conjunction with those
provisions.
The exclusive rights accorded to a copyright owner under section 106
are ``to do and to authorize'' any of the activities specified in the
five numbered clauses. Use of the phrase ``to authorize'' is intended to
avoid any questions as to the liability of contributory infringers. For
example, a person who lawfully acquires an authorized copy of a motion
picture would be an infringer if he or she engages in the business of
renting it to others for purposes of unauthorized public performance.
Rights of Reproduction, Adaptation, and Publication. The first three
clauses of section 106, which cover all rights under a copyright except
those of performance and display, extend to every kind of copyrighted
work. The exclusive rights encompassed by these clauses, though closely
related, are independent; they can generally be characterized as rights
of copying, recording, adaptation, and publishing. A single act of
infringement may violate all of these rights at once, as where a
publisher reproduces, adapts, and sells copies of a person's copyrighted
work as part of a publishing venture. Infringement takes place when any
one of the rights is violated: where, for example, a printer reproduces
copies without selling them or a retailer sells copies without having
anything to do with their reproduction. The references to ``copies or
phonorecords,'' although in the plural, are intended here and throughout
the bill to include the singular (1 U.S.C. Sec. 1).
Reproduction.--Read together with the relevant definitions in
section 101, the right ``to reproduce the copyrighted work in copies or
phonorecords'' means the right to produce a material object in which the
work is duplicated, transcribed, imitated, or simulated in a fixed form
from which it can be ``perceived, reproduced, or otherwise communicated,
either directly or with the aid of a machine or device.'' As under the
present law, a copyrighted work would be infringed by reproducing it in
whole or in any substantial part, and by duplicating it exactly or by
imitation or simulation. Wide departures or variations from the
copyrighted work would still be an infringement as long as the author's
``expression'' rather than merely the author's ``ideas'' are taken. An
exception to this general principle, applicable to the reproduction of
copyrighted sound recordings, is specified in section 114.
``Reproduction'' under clause (1) of section 106 is to be
distinguished from ``display'' under clause (5). For a work to be
``reproduced,'' its fixation in tangible form must be ``sufficiently
permanent or stable to permit it to be perceived, reproduced, or
otherwise communicated for a period of more than transitory duration.''
Thus, the showing of images on a screen or tube would not be a violation
of clause (1), although it might come within the scope of clause (5).
Preparation of Derivative Works.--The exclusive right to prepare
derivative works, specified separately in clause (2) of section 106,
overlaps the exclusive right of reproduction to some extent. It is
broader than that right, however, in the sense that reproduction
requires fixation in copies or phonorecords, whereas the preparation of
a derivative work, such as a ballet, pantomime, or improvised
performance, may be an infringement even though nothing is ever fixed in
tangible form.
To be an infringement the ``derivative work'' must be ``based upon
the copyrighted work,'' and the definition in section 101 refers to ``a
translation, musical arrangement, dramatization, fictionalization,
motion picture version, sound recording, art reproduction, abridgment,
condensation, or any other form in which a work may be recast,
transformed, or adapted.'' Thus, to constitute a violation of section
106(2), the infringing work must incorporate a portion of the
copyrighted work in some form; for example, a detailed commentary on a
work or a programmatic musical composition inspired by a novel would not
normally constitute infringements under this clause.
Use in Information Storage and Retrieval Systems.--As section 117
declares explicitly, the bill is not intended to alter the present law
with respect to the use of copyrighted works in computer systems.
Public Distribution.--Clause (3) of section 106 establishes the
exclusive right of publication: The right ``to distribute copies or
phonorecords of the copyrighted work to the public by sale or other
transfer of ownership, or by rental, lease, or lending.'' Under this
provision the copyright owner would have the right to control the first
public distribution of an authorized copy or phonorecord of his work,
whether by sale, gift, loan, or some rental or lease arrangement.
Likewise, any unauthorized public distribution of copies or phonorecords
that were unlawfully made would be an infringement. As section 109 makes
clear, however, the copyright owner's rights under section 106(3) cease
with respect to a particular copy or phonorecord once he has parted with
ownership of it.
Rights of Public Performance and Display. Performing Rights and the
``For Profit'' Limitation.--The right of public performance under
section 106(4) extends to ``literary, musical, dramatic, and
choreographic works, pantomimes, and motion pictures and other
audiovisual works and sound recordings'' and, unlike the equivalent
provisions now in effect, is not limited by any ``for profit''
requirement. The approach of the bill, as in many foreign laws, is first
to state the public performance right in broad terms, and then to
provide specific exemptions for educational and other nonprofit uses.
This approach is more reasonable than the outright exemption of the
1909 statute. The line between commercial and ``nonprofit''
organizations is increasingly difficult to draw. Many ``non-profit''
organizations are highly subsidized and capable of paying royalties, and
the widespread public exploitation of copyrighted works by public
broadcasters and other noncommercial organizations is likely to grow. In
addition to these trends, it is worth noting that performances and
displays are continuing to supplant markets for printed copies and that
in the future a broad ``not for profit'' exemption could not only hurt
authors but could dry up their incentive to write.
The exclusive right of public performance is expanded to include not
only motion pictures, including works recorded on film, video tape, and
video disks, but also audiovisual works such as filmstrips and sets of
slides. This provision of section 106(4), which is consistent with the
assimilation of motion pictures to audiovisual works throughout the
bill, is also related to amendments of the definitions of ``display''
and ``perform'' discussed below. The important issue of performing
rights in sound recordings is discussed in connection with section 114.
Right of Public Display.--Clause (5) of section 106 represents the
first explicit statutory recognition in American copyright law of an
exclusive right to show a copyrighted work, or an image of it, to the
public. The existence or extent of this right under the present statute
is uncertain and subject to challenge. The bill would give the owners of
copyright in ``literary, musical, dramatic, and choreographic works,
pantomimes, and pictorial, graphic, or sculptural works'', including the
individual images of a motion picture or other audiovisual work, the
exclusive right ``to display the copyrighted work publicly.''
Definitions. Under the definitions of ``perform,'' ``display,''
``publicly,'' and ``transmit'' in section 101, the concepts of public
performance and public display cover not only the initial rendition or
showing, but also any further act by which that rendition or showing is
transmitted or communicated to the public. Thus, for example: a singer
is performing when he or she sings a song; a broadcasting network is
performing when it transmits his or her performance (whether
simultaneously or from records); a local broadcaster is performing when
it transmits the network broadcast; a cable television system is
performing when it retransmits the broadcast to its subscribers; and any
individual is performing whenever he or she plays a phonorecord
embodying the performance or communicates the performance by turning on
a receiving set. Although any act by which the initial performance or
display is transmitted, repeated, or made to recur would itself be a
``performance'' or ``display'' under the bill, it would not be
actionable as an infringement unless it were done ``publicly,'' as
defined in section 101. Certain other performances and displays, in
addition to those that are ``private,'' are exempted or given qualified
copyright control under sections 107 through 118.
To ``perform'' a work, under the definition in section 101, includes
reading a literary work aloud, singing or playing music, dancing a
ballet or other choreographic work, and acting out a dramatic work or
pantomime. A performance may be accomplished ``either directly or by
means of any device or process,'' including all kinds of equipment for
reproducing or amplifying sounds or visual images, any sort of
transmitting apparatus, any type of electronic retrieval system, and any
other techniques and systems not yet in use or even invented.
The definition of ``perform'' in relation to ``a motion picture or
other audiovisual work'' is ``to show its images in any sequence or to
make the sounds accompanying it audible.'' The showing of portions of a
motion picture, filmstrip, or slide set must therefore be sequential to
constitute a ``performance'' rather than a ``display'', but no
particular order need be maintained. The purely aural performance of a
motion picture sound track, or of the sound portions of an audiovisual
work, would constitute a performance of the ``motion picture or other
audiovisual work''; but, where some of the sounds have been reproduced
separately on phonorecords, a performance from the phonorecord would not
constitute performance of the motion picture or audiovisual work.
The corresponding definition of ``display'' covers any showing of a
``copy'' of the work, ``either directly or by means of a film, slide,
television image, or any other device or process.'' Since ``copies'' are
defined as including the material object ``in which the work is first
fixed,'' the right of public display applies to original works of art as
well as to reproductions of them. With respect to motion pictures and
other audiovisual works, it is a ``display'' (rather than a
``performance'') to show their ``individual images nonsequentially.'' In
addition to the direct showings of a copy of a work, ``display'' would
include the projection of an image on a screen or other surface by any
method, the transmission of an image by electronic or other means, and
the showing of an image on a cathode ray tube, or similar viewing
apparatus connected with any sort of information storage and retrieval
system.
Under clause (1) of the definition of ``publicly'' in section 101, a
performance or display is ``public'' if it takes place ``at a place open
to the public or at any place where a substantial number of persons
outside of a normal circle of a family and its social acquaintances is
gathered.'' One of the principal purposes of the definition was to make
clear that, contrary to the decision in Metro-Goldwyn-Mayer Distributing
Corp. v. Wyatt, 21 C.O.Bull. 203 (D.Md.1932), performances in
``semipublic'' places such as clubs, lodges, factories, summer camps,
and schools are ``public performances'' subject to copyright control.
The term ``a family'' in this context would include an individual living
alone, so that a gathering confined to the individual's social
acquaintances would normally be regarded as private. Routine meetings of
businesses and governmental personnel would be excluded because they do
not represent the gathering of a ``substantial number of persons.''
Clause (2) of the definition of ``publicly'' in section 101 makes
clear that the concepts of public performance and public display include
not only performances and displays that occur initially in a public
place, but also acts that transmit or otherwise communicate a
performance or display of the work to the public by means of any device
or process. The definition of ``transmit''--to communicate a performance
or display ``by any device or process whereby images or sound are
received beyond the place from which they are sent''--is broad enough to
include all conceivable forms and combinations of wired or wireless
communications media, including but by no means limited to radio and
television broadcasting as we know them. Each and every method by which
the images or sounds comprising a performance or display are picked up
and conveyed is a ``transmission,'' and if the transmission reaches the
public in my [any] form, the case comes within the scope of clauses (4)
or (5) of section 106.
Under the bill, as under the present law, a performance made
available by transmission to the public at large is ``public'' even
though the recipients are not gathered in a single place, and even if
there is no proof that any of the potential recipients was operating his
receiving apparatus at the time of the transmission. The same principles
apply whenever the potential recipients of the transmission represent a
limited segment of the public, such as the occupants of hotel rooms or
the subscribers of a cable television service. Clause (2) of the
definition of ``publicly'' is applicable ``whether the members of the
public capable of receiving the performance or display receive it in the
same place or in separate places and at the same time or at different
times.''
Amendments
2002--Pub. L. 107-273 substituted ``122'' for ``121'' in
introductory provisions.
1999--Pub. L. 106-44 substituted ``121'' for ``120'' in introductory
provisions.
1995--Par. (6). Pub. L. 104-39 added par. (6).
1990--Pub. L. 101-650 substituted ``120'' for ``119'' in
introductory provisions.
Pub. L. 101-318 substituted ``119'' for ``118'' in introductory
provisions.
Effective Date of 1995 Amendment
Amendment by Pub. L. 104-39 effective 3 months after Nov. 1, 1995,
see section 6 of Pub. L. 104-39, set out as a note under section 101 of
this title.
Effective Date of 1990 Amendments
Amendment by Pub. L. 101-650 applicable to any architectural work
created on or after Dec. 1, 1990, and any architectural work, that, on
Dec. 1, 1990, is unconstructed and embodied in unpublished plans or
drawings, except that protection for such architectural work under this
title terminates on Dec. 31, 2002, unless the work is constructed by
that date, see section 706 of Pub. L. 101-650, set out as a note under
section 101 of this title.
Section 3(e)(3) of Pub. L. 101-318 provided that: ``The amendment
made by subsection (d) [amending this section] shall be effective as of
November 16, 1988.''
Section Referred to in Other Sections
This section is referred to in sections 104A, 106A, 107, 108, 109,
110, 112, 113, 114, 115, 117, 118, 120, 121, 201, 301, 501, 511, 602,
1001 of this title; title 2 section 170; title 18 section 2319.
