§ 109. — Limitations on exclusive rights: Effect of transfer of particular copy or phonorecord.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 17USC109]
TITLE 17--COPYRIGHTS
CHAPTER 1--SUBJECT MATTER AND SCOPE OF COPYRIGHT
Sec. 109. Limitations on exclusive rights: Effect of transfer of
particular copy or phonorecord
(a) Notwithstanding the provisions of section 106(3), the owner of a
particular copy or phonorecord lawfully made under this title, or any
person authorized by such owner, is entitled, without the authority of
the copyright owner, to sell or otherwise dispose of the possession of
that copy or phonorecord. Notwithstanding the preceding sentence, copies
or phonorecords of works subject to restored copyright under section
104A that are manufactured before the date of restoration of copyright
or, with respect to reliance parties, before publication or service of
notice under section 104A(e), may be sold or otherwise disposed of
without the authorization of the owner of the restored copyright for
purposes of direct or indirect commercial advantage only during the 12-
month period beginning on--
(1) the date of the publication in the Federal Register of the
notice of intent filed with the Copyright Office under section
104A(d)(2)(A), or
(2) the date of the receipt of actual notice served under
section 104A(d)(2)(B),
whichever occurs first.
(b)(1)(A) Notwithstanding the provisions of subsection (a), unless
authorized by the owners of copyright in the sound recording or the
owner of copyright in a computer program (including any tape, disk, or
other medium embodying such program), and in the case of a sound
recording in the musical works embodied therein, neither the owner of a
particular phonorecord nor any person in possession of a particular copy
of a computer program (including any tape, disk, or other medium
embodying such program), may, for the purposes of direct or indirect
commercial advantage, dispose of, or authorize the disposal of, the
possession of that phonorecord or computer program (including any tape,
disk, or other medium embodying such program) by rental, lease, or
lending, or by any other act or practice in the nature of rental, lease,
or lending. Nothing in the preceding sentence shall apply to the rental,
lease, or lending of a phonorecord for nonprofit purposes by a nonprofit
library or nonprofit educational institution. The transfer of possession
of a lawfully made copy of a computer program by a nonprofit educational
institution to another nonprofit educational institution or to faculty,
staff, and students does not constitute rental, lease, or lending for
direct or indirect commercial purposes under this subsection.
(B) This subsection does not apply to--
(i) a computer program which is embodied in a machine or product
and which cannot be copied during the ordinary operation or use of
the machine or product; or
(ii) a computer program embodied in or used in conjunction with
a limited purpose computer that is designed for playing video games
and may be designed for other purposes.
(C) Nothing in this subsection affects any provision of chapter 9 of
this title.
(2)(A) Nothing in this subsection shall apply to the lending of a
computer program for nonprofit purposes by a nonprofit library, if each
copy of a computer program which is lent by such library has affixed to
the packaging containing the program a warning of copyright in
accordance with requirements that the Register of Copyrights shall
prescribe by regulation.
(B) Not later than three years after the date of the enactment of
the Computer Software Rental Amendments Act of 1990, and at such times
thereafter as the Register of Copyrights considers appropriate, the
Register of Copyrights, after consultation with representatives of
copyright owners and librarians, shall submit to the Congress a report
stating whether this paragraph has achieved its intended purpose of
maintaining the integrity of the copyright system while providing
nonprofit libraries the capability to fulfill their function. Such
report shall advise the Congress as to any information or
recommendations that the Register of Copyrights considers necessary to
carry out the purposes of this subsection.
(3) Nothing in this subsection shall affect any provision of the
antitrust laws. For purposes of the preceding sentence, ``antitrust
laws'' has the meaning given that term in the first section of the
Clayton Act and includes section 5 of the Federal Trade Commission Act
to the extent that section relates to unfair methods of competition.
(4) Any person who distributes a phonorecord or a copy of a computer
program (including any tape, disk, or other medium embodying such
program) in violation of paragraph (1) is an infringer of copyright
under section 501 of this title and is subject to the remedies set forth
in sections 502, 503, 504, 505, and 509. Such violation shall not be a
criminal offense under section 506 or cause such person to be subject to
the criminal penalties set forth in section 2319 of title 18.
(c) Notwithstanding the provisions of section 106(5), the owner of a
particular copy lawfully made under this title, or any person authorized
by such owner, is entitled, without the authority of the copyright
owner, to display that copy publicly, either directly or by the
projection of no more than one image at a time, to viewers present at
the place where the copy is located.
(d) The privileges prescribed by subsections (a) and (c) do not,
unless authorized by the copyright owner, extend to any person who has
acquired possession of the copy or phonorecord from the copyright owner,
by rental, lease, loan, or otherwise, without acquiring ownership of it.
(e) Notwithstanding the provisions of sections 106(4) and 106(5), in
the case of an electronic audiovisual game intended for use in coin-
operated equipment, the owner of a particular copy of such a game
lawfully made under this title, is entitled, without the authority of
the copyright owner of the game, to publicly perform or display that
game in coin-operated equipment, except that this subsection shall not
apply to any work of authorship embodied in the audiovisual game if the
copyright owner of the electronic audiovisual game is not also the
copyright owner of the work of authorship.
(Pub. L. 94-553, title I, Sec. 101, Oct. 19, 1976, 90 Stat. 2548; Pub.
L. 98-450, Sec. 2, Oct. 4, 1984, 98 Stat. 1727; Pub. L. 100-617, Sec. 2,
Nov. 5, 1988, 102 Stat. 3194; Pub. L. 101-650, title VIII, Secs. 802,
803, Dec. 1, 1990, 104 Stat. 5134, 5135; Pub. L. 103-465, title V,
Sec. 514(b), Dec. 8, 1994, 108 Stat. 4981; Pub. L. 105-80,
Sec. 12(a)(5), Nov. 13, 1997, 111 Stat. 1534.)
Historical and Revision Notes
house report no. 94-1476
Effect on Further Disposition of Copy or Phonorecord. Section 109(a)
restates and confirms the principle that, where the copyright owner has
transferred ownership of a particular copy or phonorecord of a work, the
person to whom the copy or phonorecord is transferred is entitled to
dispose of it by sale, rental, or any other means. Under this principle,
which has been established by the court decisions and section 27 of the
present law [section 27 of former title 17], the copyright owner's
exclusive right of public distribution would have no effect upon anyone
who owns ``a particular copy or phonorecord lawfully made under this
title'' and who wishes to transfer it to someone else or to destroy it.
Thus, for example, the outright sale of an authorized copy of a book
frees it from any copyright control over its resale price or other
conditions of its future disposition. A library that has acquired
ownership of a copy is entitled to lend it under any conditions it
chooses to impose. This does not mean that conditions on future
disposition of copies or phonorecords, imposed by a contract between
their buyer and seller, would be unenforceable between the parties as a
breach of contract, but it does mean that they could not be enforced by
an action for infringement of copyright. Under section 202 however, the
owner of the physical copy or phonorecord cannot reproduce or perform
the copyrighted work publicly without the copyright owner's consent.
To come within the scope of section 109(a), a copy or phonorecord
must have been ``lawfully made under this title,'' though not
necessarily with the copyright owner's authorization. For example, any
resale of an illegally ``pirated'' phonorecord would be an infringement,
but the disposition of a phonorecord legally made under the compulsory
licensing provisions of section 115 would not.
Effect on Display of Copy. Subsection (b) of section 109 deals with
the scope of the copyright owner's exclusive right to control the public
display of a particular ``copy'' of a work (including the original or
prototype copy in which the work was first fixed). Assuming, for
example, that a painter has sold the only copy of an original work of
art without restrictions, would it be possible for him to restrain the
new owner from displaying it publicly in galleries, shop windows, on a
projector, or on television?
Section 109(b) adopts the general principle that the lawful owner of
a copy of a work should be able to put his copy on public display
without the consent of the copyright owner. As in cases arising under
section 109(a), this does not mean that contractual restrictions on
display between a buyer and seller would be unenforceable as a matter of
contract law.
The exclusive right of public display granted by section 106(5)
would not apply where the owner of a copy wishes to show it directly to
the public, as in a gallery or display case, or indirectly, as through
an opaque projector. Where the copy itself is intended for projection,
as in the case of a photographic slide, negative, or transparency, the
public projection of a single image would be permitted as long as the
viewers are ``present at the place where the copy is located.''
On the other hand, section 109(b) takes account of the
potentialities of the new communications media, notably television,
cable and optical transmission devices, and information storage and
retrieval devices, for replacing printed copies with visual images.
First of all, the public display of an image of a copyrighted work would
not be exempted from copyright control if the copy from which the image
was derived were outside the presence of the viewers. In other words,
the display of a visual image of a copyrighted work would be an
infringement if the image were transmitted by any method (by closed or
open circuit television, for example, or by a computer system) from one
place to members of the public located elsewhere.
Moreover, the exemption would extend only to public displays that
are made ``either directly or by the projection of no more than one
image at a time.'' Thus, even where the copy and the viewers are located
at the same place, the simultaneous projection of multiple images of the
work would not be exempted. For example, where each person in a lecture
hall is supplied with a separate viewing apparatus, the copyright
owner's permission would generally be required in order to project an
image of a work on each individual screen at the same time.
The committee's intention is to preserve the traditional privilege
of the owner of a copy to display it directly, but to place reasonable
restrictions on the ability to display it indirectly in such a way that
the copyright owner's market for reproduction and distribution of copies
would be affected. Unless it constitutes a fair use under section 107,
or unless one of the special provisions of section 110 or 111 is
applicable, projection of more than one image at a time, or transmission
of an image to the public over television or other communication
channels, would be an infringement for the same reasons that
reproduction in copies would be. The concept of ``the place where the
copy is located'' is generally intended to refer to a situation in which
the viewers are present in the same physical surroundings as the copy,
even though they cannot see the copy directly.
Effect of Mere Possession of Copy or Phonorecord. Subsection (c) of
section 109 qualifies the privileges specified in subsections (a) and
(b) by making clear that they do not apply to someone who merely
possesses a copy or phonorecord without having acquired ownership of it.
Acquisition of an object embodying a copyrighted work by rental, lease,
loan, or bailment carries with it no privilege to dispose of the copy
under section 109(a) or to display it publicly under section 109(b). To
cite a familiar example, a person who has rented a print of a motion
picture from the copyright owner would have no right to rent it to
someone else without the owner's permission.
Burden of Proof in Infringement Actions. During the course of its
deliberations on this section, the Committee's attention was directed to
a recent court decision holding that the plaintiff in an infringement
action had the burden of establishing that the allegedly infringing
copies in the defendant's possession were not lawfully made or acquired
under section 27 of the present law [section 27 of former title 17].
American International Pictures, Inc. v. Foreman, 400 F.Supp. 928
(S.D.Alabama 1975). The Committee believes that the court's decision, if
followed, would place a virtually impossible burden on copyright owners.
The decision is also inconsistent with the established legal principle
that the burden of proof should not be placed upon a litigant to
establish facts particularly within the knowledge of his adversary. The
defendant in such actions clearly has the particular knowledge of how
possession of the particular copy was acquired, and should have the
burden of providing this evidence to the court. It is the intent of the
Committee, therefore, that in an action to determine whether a defendant
is entitled to the privilege established by section 109(a) and (b), the
burden of proving whether a particular copy was lawfully made or
acquired should rest on the defendant.
References in Text
The date of the enactment of the Computer Software Rental Amendments
Act of 1990, referred to in subsec. (b)(2)(B), is the date of enactment
of Pub. L. 101-650, which was approved Dec. 1, 1990.
The first section of the Clayton Act, referred to in subsec. (b)(3),
is classified to section 12 of Title 15, Commerce and Trade.
Section 5 of the Federal Trade Commission Act, referred to in
subsec. (b)(3), is classified to section 45 of Title 15.
Amendments
1997--Subsec. (b)(2)(B). Pub. L. 105-80 substituted ``Register of
Copyrights considers appropriate'' for ``Register of Copyright considers
appropriate''.
1994--Subsec. (a). Pub. L. 103-465 inserted at end ``Notwithstanding
the preceding sentence, copies or phonorecords of works subject to
restored copyright under section 104A that are manufactured before the
date of restoration of copyright or, with respect to reliance parties,
before publication or service of notice under section 104A(e), may be
sold or otherwise disposed of without the authorization of the owner of
the restored copyright for purposes of direct or indirect commercial
advantage only during the 12-month period beginning on--
``(1) the date of the publication in the Federal Register of the
notice of intent filed with the Copyright Office under section
104A(d)(2)(A), or
``(2) the date of the receipt of actual notice served under
section 104A(d)(2)(B),
whichever occurs first.''
1990--Subsec. (b)(1). Pub. L. 101-650, Sec. 802(2), added par. (1)
and struck out former par. (1) which read as follows: ``Notwithstanding
the provisions of subsection (a), unless authorized by the owners of
copyright in the sound recording and in the musical works embodied
therein, the owner of a particular phonorecord may not, for purposes of
direct or indirect commercial advantage, dispose of, or authorize the
disposal of, the possession of that phonorecord by rental, lease, or
lending, or by any other act or practice in the nature of rental, lease,
or lending. Nothing in the preceding sentence shall apply to the rental,
lease, or lending of a phonorecord for nonprofit purposes by a nonprofit
library or nonprofit educational institution.''
Subsec. (b)(2), (3). Pub. L. 101-650, Sec. 802(1), (2), added par.
(2) and redesignated former pars. (2) and (3) as (3) and (4),
respectively.
Subsec. (b)(4). Pub. L. 101-650, Sec. 802(3), added par. (4) and
struck out former par. (4) which read as follows: ``Any person who
distributes a phonorecord in violation of clause (1) is an infringer of
copyright under section 501 of this title and is subject to the remedies
set forth in sections 502, 503, 504, 505, and 509. Such violation shall
not be a criminal offense under section 506 or cause such person to be
subject to the criminal penalties set forth in section 2319 of title
18.''
Pub. L. 101-650, Sec. 802(1), redesignated par. (3) as (4).
Subsec. (e). Pub. L. 101-650, Sec. 803, added subsec. (e).
1988--Subsec. (d). Pub. L. 100-617 substituted ``(a) and (c)'' for
``(a) and (b)'' and ``copyright'' for ``coyright''.
1984--Subsecs. (b) to (d). Pub. L. 98-450 added subsec. (b) and
redesignated existing subsecs. (b) and (c) as (c) and (d), respectively.
Effective Date of 1990 Amendment
Section 804 of title VIII of Pub. L. 101-650, as amended by Pub. L.
103-465, title V, Sec. 511, Dec. 8, 1994, 108 Stat. 4974, provided that:
``(a) In General.--Subject to subsection (b), this title [amending
this section and enacting provisions set out as notes under sections 101
and 205 of this title] and the amendments made in section 802 [amending
this section] shall take effect on the date of the enactment of this Act
[Dec. 1, 1990]. The amendment made by section 803 [amending this
section] shall take effect one year after such date of enactment.
``(b) Prospective Application.--Section 109(b) of title 17, United
States Code, as amended by section 802 of this Act, shall not affect the
right of a person in possession of a particular copy of a computer
program, who acquired such copy before the date of the enactment of this
Act [Dec. 1, 1990], to dispose of the possession of that copy on or
after such date of enactment in any manner permitted by section 109 of
title 17, United States Code, as in effect on the day before such date
of enactment.
``(c) Termination.--The amendments made by section 803 shall not
apply to public performances or displays that occur on or after October
1, 1995.''
Effective Date of 1984 Amendment
Section 4 of Pub. L. 98-450, as amended by Pub. L. 100-617, Sec. 1,
Nov. 5, 1988, 102 Stat. 3194; Pub. L. 103-182, title III, Sec. 332, Dec.
8, 1993, 107 Stat. 2114, provided that:
``(a) The amendments made by this Act [amending this section and
section 115 of this title and enacting provisions set out as a note
under section 101 of this title] shall take effect on the date of the
enactment of this Act [Oct. 4, 1984].
``(b) The provisions of section 109(b) of title 17, United States
Code, as added by section 2 of this Act, shall not affect the right of
an owner of a particular phonorecord of a sound recording, who acquired
such ownership before the date of the enactment of this Act [Oct. 4,
1984], to dispose of the possession of that particular phonorecord on or
after such date of enactment in any manner permitted by section 109 of
title 17, United States Code, as in effect on the day before the date of
the enactment of this Act.''
[Amendment by Pub. L. 103-182 to section 4 of Pub. L. 98-450, set
out above, effective on the date the North American Free Trade Agreement
enters into force with respect to the United States [Jan. 1, 1994], see
section 335 of Pub. L. 103-182, set out as an Effective Date of 1993
Amendment note under section 1052 of Title 15, Commerce and Trade.]
Evaluation of Impact of Copyright Law and Amendments on Electronic
Commerce and Technological Development
Pub. L. 105-304, title I, Sec. 104, Oct. 28, 1998, 112 Stat. 2876,
provided that:
``(a) Evaluation by the Register of Copyrights and the Assistant
Secretary for Communications and Information.--The Register of
Copyrights and the Assistant Secretary for Communications and
Information of the Department of Commerce shall jointly evaluate--
``(1) the effects of the amendments made by this title [enacting
chapter 12 of this title and amending sections 101, 104, 104A, 411,
and 507 of this title] and the development of electronic commerce
and associated technology on the operation of sections 109 and 117
of title 17, United States Code; and
``(2) the relationship between existing and emergent technology
and the operation of sections 109 and 117 of title 17, United States
Code.
``(b) Report to Congress.--The Register of Copyrights and the
Assistant Secretary for Communications and Information of the Department
of Commerce shall, not later than 24 months after the date of the
enactment of this Act [Oct. 28, 1998], submit to the Congress a joint
report on the evaluation conducted under subsection (a), including any
legislative recommendations the Register and the Assistant Secretary may
have.''
Section Referred to in Other Sections
This section is referred to in sections 104A, 106, 501, 511 of this
title; title 18 section 2319.
