§ 110. — Limitations on exclusive rights: Exemption of certain performances and displays.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 17USC110]
TITLE 17--COPYRIGHTS
CHAPTER 1--SUBJECT MATTER AND SCOPE OF COPYRIGHT
Sec. 110. Limitations on exclusive rights: Exemption of certain
performances and displays
Notwithstanding the provisions of section 106, the following are not
infringements of copyright:
(1) performance or display of a work by instructors or pupils in
the course of face-to-face teaching activities of a nonprofit
educational institution, in a classroom or similar place devoted to
instruction, unless, in the case of a motion picture or other
audiovisual work, the performance, or the display of individual
images, is given by means of a copy that was not lawfully made under
this title, and that the person responsible for the performance knew
or had reason to believe was not lawfully made;
(2) except with respect to a work produced or marketed primarily
for performance or display as part of mediated instructional
activities transmitted via digital networks, or a performance or
display that is given by means of a copy or phonorecord that is not
lawfully made and acquired under this title, and the transmitting
government body or accredited nonprofit educational institution knew
or had reason to believe was not lawfully made and acquired, the
performance of a nondramatic literary or musical work or reasonable
and limited portions of any other work, or display of a work in an
amount comparable to that which is typically displayed in the course
of a live classroom session, by or in the course of a transmission,
if--
(A) the performance or display is made by, at the direction
of, or under the actual supervision of an instructor as an
integral part of a class session offered as a regular part of
the systematic mediated instructional activities of a
governmental body or an accredited nonprofit educational
institution;
(B) the performance or display is directly related and of
material assistance to the teaching content of the transmission;
(C) the transmission is made solely for, and, to the extent
technologically feasible, the reception of such transmission is
limited to--
(i) students officially enrolled in the course for which
the transmission is made; or
(ii) officers or employees of governmental bodies as a
part of their official duties or employment; and
(D) the transmitting body or institution--
(i) institutes policies regarding copyright, provides
informational materials to faculty, students, and relevant
staff members that accurately describe, and promote
compliance with, the laws of the United States relating to
copyright, and provides notice to students that materials
used in connection with the course may be subject to
copyright protection; and
(ii) in the case of digital transmissions--
(I) applies technological measures that reasonably
prevent--
(aa) retention of the work in accessible form by
recipients of the transmission from the transmitting
body or institution for longer than the class
session; and
(bb) unauthorized further dissemination of the
work in accessible form by such recipients to
others; and
(II) does not engage in conduct that could
reasonably be expected to interfere with technological
measures used by copyright owners to prevent such
retention or unauthorized further dissemination;
(3) performance of a nondramatic literary or musical work or of
a dramatico-musical work of a religious nature, or display of a
work, in the course of services at a place of worship or other
religious assembly;
(4) performance of a nondramatic literary or musical work
otherwise than in a transmission to the public, without any purpose
of direct or indirect commercial advantage and without payment of
any fee or other compensation for the performance to any of its
performers, promoters, or organizers, if--
(A) there is no direct or indirect admission charge; or
(B) the proceeds, after deducting the reasonable costs of
producing the performance, are used exclusively for educational,
religious, or charitable purposes and not for private financial
gain, except where the copyright owner has served notice of
objection to the performance under the following conditions:
(i) the notice shall be in writing and signed by the
copyright owner or such owner's duly authorized agent; and
(ii) the notice shall be served on the person
responsible for the performance at least seven days before
the date of the performance, and shall state the reasons for
the objection; and
(iii) the notice shall comply, in form, content, and
manner of service, with requirements that the Register of
Copyrights shall prescribe by regulation;
(5)(A) except as provided in subparagraph (B), communication of
a transmission embodying a performance or display of a work by the
public reception of the transmission on a single receiving apparatus
of a kind commonly used in private homes, unless--
(i) a direct charge is made to see or hear the transmission;
or
(ii) the transmission thus received is further transmitted
to the public;
(B) communication by an establishment of a transmission or
retransmission embodying a performance or display of a nondramatic
musical work intended to be received by the general public,
originated by a radio or television broadcast station licensed as
such by the Federal Communications Commission, or, if an audiovisual
transmission, by a cable system or satellite carrier, if--
(i) in the case of an establishment other than a food
service or drinking establishment, either the establishment in
which the communication occurs has less than 2,000 gross square
feet of space (excluding space used for customer parking and for
no other purpose), or the establishment in which the
communication occurs has 2,000 or more gross square feet of
space (excluding space used for customer parking and for no
other purpose) and--
(I) if the performance is by audio means only, the
performance is communicated by means of a total of not more
than 6 loudspeakers, of which not more than 4 loudspeakers
are located in any 1 room or adjoining outdoor space; or
(II) if the performance or display is by audiovisual
means, any visual portion of the performance or display is
communicated by means of a total of not more than 4
audiovisual devices, of which not more than 1 audiovisual
device is located in any 1 room, and no such audiovisual
device has a diagonal screen size greater than 55 inches,
and any audio portion of the performance or display is
communicated by means of a total of not more than 6
loudspeakers, of which not more than 4 loudspeakers are
located in any 1 room or adjoining outdoor space;
(ii) in the case of a food service or drinking
establishment, either the establishment in which the
communication occurs has less than 3,750 gross square feet of
space (excluding space used for customer parking and for no
other purpose), or the establishment in which the communication
occurs has 3,750 gross square feet of space or more (excluding
space used for customer parking and for no other purpose) and--
(I) if the performance is by audio means only, the
performance is communicated by means of a total of not more
than 6 loudspeakers, of which not more than 4 loudspeakers
are located in any 1 room or adjoining outdoor space; or
(II) if the performance or display is by audiovisual
means, any visual portion of the performance or display is
communicated by means of a total of not more than 4
audiovisual devices, of which not more than one audiovisual
device is located in any 1 room, and no such audiovisual
device has a diagonal screen size greater than 55 inches,
and any audio portion of the performance or display is
communicated by means of a total of not more than 6
loudspeakers, of which not more than 4 loudspeakers are
located in any 1 room or adjoining outdoor space;
(iii) no direct charge is made to see or hear the
transmission or retransmission;
(iv) the transmission or retransmission is not further
transmitted beyond the establishment where it is received; and
(v) the transmission or retransmission is licensed by the
copyright owner of the work so publicly performed or displayed;
(6) performance of a nondramatic musical work by a governmental
body or a nonprofit agricultural or horticultural organization, in
the course of an annual agricultural or horticultural fair or
exhibition conducted by such body or organization; the exemption
provided by this clause shall extend to any liability for copyright
infringement that would otherwise be imposed on such body or
organization, under doctrines of vicarious liability or related
infringement, for a performance by a concessionnaire, business
establishment, or other person at such fair or exhibition, but shall
not excuse any such person from liability for the performance;
(7) performance of a nondramatic musical work by a vending
establishment open to the public at large without any direct or
indirect admission charge, where the sole purpose of the performance
is to promote the retail sale of copies or phonorecords of the work,
or of the audiovisual or other devices utilized in such performance,
and the performance is not transmitted beyond the place where the
establishment is located and is within the immediate area where the
sale is occurring;
(8) performance of a nondramatic literary work, by or in the
course of a transmission specifically designed for and primarily
directed to blind or other handicapped persons who are unable to
read normal printed material as a result of their handicap, or deaf
or other handicapped persons who are unable to hear the aural
signals accompanying a transmission of visual signals, if the
performance is made without any purpose of direct or indirect
commercial advantage and its transmission is made through the
facilities of: (i) a governmental body; or (ii) a noncommercial
educational broadcast station (as defined in section 397 of title
47); or (iii) a radio subcarrier authorization (as defined in 47 CFR
73.293-73.295 and 73.593-73.595); or (iv) a cable system (as defined
in section 111(f));
(9) performance on a single occasion of a dramatic literary work
published at least ten years before the date of the performance, by
or in the course of a transmission specifically designed for and
primarily directed to blind or other handicapped persons who are
unable to read normal printed material as a result of their
handicap, if the performance is made without any purpose of direct
or indirect commercial advantage and its transmission is made
through the facilities of a radio subcarrier authorization referred
to in clause (8)(iii), Provided, That the provisions of this clause
shall not be applicable to more than one performance of the same
work by the same performers or under the auspices of the same
organization; and
(10) notwithstanding paragraph (4), the following is not an
infringement of copyright: performance of a nondramatic literary or
musical work in the course of a social function which is organized
and promoted by a nonprofit veterans' organization or a nonprofit
fraternal organization to which the general public is not invited,
but not including the invitees of the organizations, if the proceeds
from the performance, after deducting the reasonable costs of
producing the performance, are used exclusively for charitable
purposes and not for financial gain. For purposes of this section
the social functions of any college or university fraternity or
sorority shall not be included unless the social function is held
solely to raise funds for a specific charitable purpose.
The exemptions provided under paragraph (5) shall not be taken into
account in any administrative, judicial, or other governmental
proceeding to set or adjust the royalties payable to copyright owners
for the public performance or display of their works. Royalties payable
to copyright owners for any public performance or display of their works
other than such performances or displays as are exempted under paragraph
(5) shall not be diminished in any respect as a result of such
exemption.
In paragraph (2), the term ``mediated instructional activities''
with respect to the performance or display of a work by digital
transmission under this section refers to activities that use such
work as an integral part of the class experience, controlled by or
under the actual supervision of the instructor and analogous to the
type of performance or display that would take place in a live
classroom setting. The term does not refer to activities that use,
in 1 or more class sessions of a single course, such works as
textbooks, course packs, or other material in any media, copies or
phonorecords of which are typically purchased or acquired by the
students in higher education for their independent use and retention
or are typically purchased or acquired for elementary and secondary
students for their possession and independent use.
For purposes of paragraph (2), accreditation--
(A) with respect to an institution providing post-secondary
education, shall be as determined by a regional or national
accrediting agency recognized by the Council on Higher Education
Accreditation or the United States Department of Education; and
(B) with respect to an institution providing elementary or
secondary education, shall be as recognized by the applicable
state certification or licensing procedures.
For purposes of paragraph (2), no governmental body or
accredited nonprofit educational institution shall be liable for
infringement by reason of the transient or temporary storage of
material carried out through the automatic technical process of a
digital transmission of the performance or display of that material
as authorized under paragraph (2). No such material stored on the
system or network controlled or operated by the transmitting body or
institution under this paragraph shall be maintained on such system
or network in a manner ordinarily accessible to anyone other than
anticipated recipients. No such copy shall be maintained on the
system or network in a manner ordinarily accessible to such
anticipated recipients for a longer period than is reasonably
necessary to facilitate the transmissions for which it was made.
(Pub. L. 94-553, title I, Sec. 101, Oct. 19, 1976, 90 Stat. 2549; Pub.
L. 97-366, Sec. 3, Oct. 25, 1982, 96 Stat. 1759; Pub. L. 105-80,
Sec. 12(a)(6), Nov. 13, 1997, 111 Stat. 1534; Pub. L. 105-298, title II,
Sec. 202, Oct. 27, 1998, 112 Stat. 2830; Pub. L. 106-44, Sec. 1(a), Aug.
5, 1999, 113 Stat. 221; Pub. L. 107-273, div. C, title III,
Secs. 13210(6), 13301(b), Nov. 2, 2002, 116 Stat. 1909, 1910.)
Historical and Revision Notes
house report no. 94-1476
Clauses (1) through (4) of section 110 deal with performances and
exhibitions that are now generally exempt under the ``for profit''
limitation or other provisions of the copyright law, and that are
specifically exempted from copyright liability under this legislation.
Clauses (1) and (2) between them are intended to cover all of the
various methods by which performances or displays in the course of
systematic instruction take place.
Face-to-Face Teaching Activities. Clause (1) of section 110 is
generally intended to set out the conditions under which performances or
displays, in the course of instructional activities other than
educational broadcasting, are to be exempted from copyright control. The
clause covers all types of copyrighted works, and exempts their
performance or display ``by instructors or pupils in the course of face-
to-face teaching activities of a nonprofit educational institution,''
where the activities take place ``in a classroom or similar place
devoted to instruction.''
There appears to be no need for a statutory definition of ``face-to-
face'' teaching activities to clarify the scope of the provision.
``Face-to-face teaching activities'' under clause (1) embrace
instructional performances and displays that are not ``transmitted.''
The concept does not require that the teacher and students be able to
see each other, although it does require their simultaneous presence in
the same general place. Use of the phrase ``in the course of face-to-
face teaching activities'' is intended to exclude broadcasting or other
transmissions from an outside location into classrooms, whether radio or
television and whether open or closed circuit. However, as long as the
instructor and pupils are in the same building or general area, the
exemption would extend to the use of devices for amplifying or
reproducing sound and for projecting visual images. The ``teaching
activities'' exempted by the clause encompass systematic instruction of
a very wide variety of subjects, but they do not include performances or
displays, whatever their cultural value or intellectual appeal, that are
given for the recreation or entertainment of any part of their audience.
Works Affected.--Since there is no limitation on the types of works
covered by the exemption, teachers or students would be free to perform
or display anything in class as long as the other conditions of the
clause are met. They could read aloud from copyrighted text material,
act out a drama, play or sing a musical work, perform a motion picture
or filmstrip, or display text or pictorial material to the class by
means of a projector. However, nothing in this provision is intended to
sanction the unauthorized reproduction of copies or phonorecords for the
purpose of classroom performance or display, and the clause contains a
special exception dealing with performances from unlawfully made copies
of motion pictures and other audiovisual works, to be discussed below.
Instructors or Pupils.--To come within clause (1), the performance
or display must be ``by instructors or pupils,'' thus ruling out
performances by actors, singers, or instrumentalists brought in from
outside the school to put on a program. However, the term
``instructors'' would be broad enough to include guest lecturers if
their instructional activities remain confined to classroom situations.
In general, the term ``pupils'' refers to the enrolled members of a
class.
Nonprofit Educational Institution.--Clause (1) makes clear that it
applies only to the teaching activities ``of a nonprofit educational
institution,'' thus excluding from the exemption performances or
displays in profit-making institutions such as dance studios and
language schools.
Classroom or Similar Place.--The teaching activities exempted by the
clause must take place ``in a classroom or similar place devoted to
instruction.'' For example, performances in an auditorium or stadium
during a school assembly, graduation ceremony, class play, or sporting
event, where the audience is not confined to the members of a particular
class, would fall outside the scope of clause (1), although in some
cases they might be exempted by clause (4) of section 110. The ``similar
place'' referred to in clause (1) is a place which is ``devoted to
instruction'' in the same way a classroom is; common examples would
include a studio, a workshop, a gymnasium, a training field, a library,
the stage of an auditorium, or the auditorium itself, if it is actually
used as a classroom for systematic instructional activities.
Motion Pictures and Other Audiovisual Works.--The final provision of
clause (1) deals with the special problem of performances from
unlawfully-made copies of motion pictures and other audiovisual works.
The exemption is lost where the copy being used for a classroom
performance was ``not lawfully made under this title'' and the person
responsible for the performance knew or had reason to suspect as much.
This special exception to the exemption would not apply to performances
from lawfully-made copies, even if the copies were acquired from someone
who had stolen or converted them, or if the performances were in
violation of an agreement. However, though the performance would be
exempt under section 110(1) in such cases, the copyright owner might
have a cause of action against the unauthorized distributor under
section 106(3), or against the person responsible for the performance,
for breach of contract.
Projection Devices.--As long as there is no transmission beyond the
place where the copy is located, both section 109(b) and section 110(1)
would permit the classroom display of a work by means of any sort of
projection device or process.
Instructional Broadcasting. Works Affected.--The exemption for
instructional broadcasting provided by section 110(2) would apply only
to ``performance of a nondramatic literary or musical work or display of
a work.'' Thus, the copyright owner's permission would be required for
the performance on educational television or radio of a dramatic work,
of a dramatico-musical work such as an opera or musical comedy, or of a
motion picture. Since, as already explained, audiovisual works such as
filmstrips are equated with motion pictures, their sequential showing
would be regarded as a performance rather than a display and would not
be exempt under section 110(2). The clause is not intended to limit in
any way the copyright owner's exclusive right to make dramatizations,
adaptations, or other derivative works under section 106(2). Thus, for
example, a performer could read a nondramatic literary work aloud under
section 110(2), but the copyright owner's permission would be required
for him to act it out in dramatic form.
Systematic Instructional Activities.--Under section 110(2) a
transmission must meet three specified conditions in order to be
exempted from copyright liability. The first of these, as provided by
subclause (A), is that the performance or display must be ``a regular
part of the systematic instructional activities of a governmental body
or a nonprofit educational institution.'' The concept of ``systematic
instructional activities'' is intended as the general equivalent of
``curriculums,'' but it could be broader in a case such as that of an
institution using systematic teaching methods not related to specific
course work. A transmission would be a regular part of these activities
if it is in accordance with the pattern of teaching established by the
governmental body or institution. The use of commercial facilities, such
as those of a cable service, to transmit the performance or display,
would not affect the exemption as long as the actual performance or
display was for nonprofit purposes.
Content of Transmission.--Subclause (B) requires that the
performance or display be directly related and of material assistance to
the teaching content of the transmission.
Intended Recipients.--Subclause (C) requires that the transmission
is made primarily for:
(i) Reception in classrooms or similar places normally devoted
to instruction, or
(ii) Reception by persons to whom the transmission is directed
because their disabilities or other special circumstances prevent
their attendance in classrooms or similar places normally devoted to
instruction, or
(iii) Reception by officers or employees of governmental bodies
as a part of their official duties or employment.
In all three cases, the instructional transmission need only be made
``primarily'' rather than ``solely'' to the specified recipients to be
exempt. Thus, the transmission could still be exempt even though it is
capable of reception by the public at large. Conversely, it would not be
regarded as made ``primarily'' for one of the required groups of
recipients if the principal purpose behind the transmission is reception
by the public at large, even if it is cast in the form of instruction
and is also received in classrooms. Factors to consider in determining
the ``primary'' purpose of a program would include its subject matter,
content, and the time of its transmission.
Paragraph (i) of subclause (C) generally covers what are known as
``in-school'' broadcasts, whether open- or closed-circuit. The reference
to ``classrooms or similar places'' here is intended to have the same
meaning as that of the phrase as used in section 110(1). The exemption
in paragraph (ii) is intended to exempt transmissions providing
systematic instruction to individuals who cannot be reached in
classrooms because of ``their disabilities or other special
circumstances.'' Accordingly, the exemption is confined to instructional
broadcasting that is an adjunct to the actual classwork of nonprofit
schools or is primarily for people who cannot be brought together in
classrooms such as preschool children, displaced workers, illiterates,
and shut-ins.
There has been some question as to whether or not the language in
this section of the bill is intended to include instructional television
college credit courses. These telecourses are aimed at undergraduate and
graduate students in earnest pursuit of higher educational degrees who
are unable to attend daytime classes because of daytime employment,
distance from campus, or some other intervening reason. So long as these
broadcasts are aimed at regularly enrolled students and conducted by
recognized higher educational institutions, the committee believes that
they are clearly within the language of section 110(2)(C)(ii). Like
night school and correspondence courses before them, these telecourses
are fast becoming a valuable adjunct of the normal college curriculum.
The third exemption in subclause (C) is intended to permit the use
of copyrighted material, in accordance with the other conditions of
section 110(2), in the course of instructional transmissions for
Government personnel who are receiving training ``as a part of their
official duties or employment.''
Religious Services. The exemption in clause (3) of section 110
covers performances of a nondramatic literary or musical work, and also
performances ``of dramatico-musical works of a religious nature''; in
addition, it extends to displays of works of all kinds. The exemption
applies where the performance or display is ``in the course of services
at a place of worship or other religious assembly.'' The scope of the
clause does not cover the sequential showing of motion pictures and
other audiovisual works.
The exemption, which to some extent has its counterpart in sections
1 and 104 of the present law [sections 1 and 104 of former title 17],
applies to dramatico-musical works ``of a religious nature.'' The
purpose here is to exempt certain performances of sacred music that
might be regarded as ``dramatic'' in nature, such as oratorios,
cantatas, musical settings of the mass, choral services, and the like.
The exemption is not intended to cover performances of secular operas,
musical plays, motion pictures, and the like, even if they have an
underlying religious or philosophical theme and take place ``in the
course of [religious] services.''
To be exempted under section 110(3) a performance or display must be
``in the course of services,'' thus excluding activities at a place of
worship that are for social, educational, fund raising, or entertainment
purposes. Some performances of these kinds could be covered by the
exemption in section 110(4), discussed next. Since the performance or
display must also occur ``at a place of worship or other religious
assembly,'' the exemption would not extend to religious broadcasts or
other transmissions to the public at large, even where the transmissions
were sent from the place of worship. On the other hand, as long as
services are being conducted before a religious gathering, the exemption
would apply if they were conducted in places such as auditoriums,
outdoor theaters, and the like.
Certain Other Nonprofit Performances. In addition to the educational
and religious exemptions provided by clauses (1) through (3) of section
110, clause (4) contains a general exception to the exclusive right of
public performance that would cover some, though not all, of the same
ground as the present ``for profit'' limitation.
Scope of Exemption.--The exemption in clause (4) applies to the same
general activities and subject matter as those covered by the ``for
profit'' limitation today: public performances of nondramatic literary
and musical works. However, the exemption would be limited to public
performances given directly in the presence of an audience whether by
means of living performers, the playing of phonorecords, or the
operation of a receiving apparatus, and would not include a
``transmission to the public.'' Unlike the clauses (1) through (3) and
(5) of section 110, but like clauses (6) through (8), clause (4) applies
only to performing rights in certain works, and does not affect the
exclusive right to display a work in public.
No Profit Motive.--In addition to the other conditions specified by
the clause, the performance must be ``without any purpose of direct or
indirect commercial advantage.'' This provision expressly adopts the
principle established by the court decisions construing the ``for
profit'' limitation: that public performances given or sponsored in
connection with any commercial or profit-making enterprises are subject
to the exclusive rights of the copyright owner even though the public is
not charged for seeing or hearing the performance.
No Payment for Performance.--An important condition for this
exemption is that the performance be given ``without payment of any fee
or other compensation for the performance to any of its performers,
promoters, or organizers.'' The basic purpose of this requirement is to
prevent the free use of copyrighted material under the guise of charity
where fees or percentages are paid to performers, promoters, producers,
and the like. However, the exemption would not be lost if the
performers, directors, or producers of the performance, instead of being
paid directly ``for the performance,'' are paid a salary for duties
encompassing the performance. Examples are performances by a school
orchestra conducted by a music teacher who receives an annual salary, or
by a service band whose members and conductors perform as part of their
assigned duties and who receive military pay. The committee believes
that performances of this type should be exempt, assuming the other
conditions in clause (4) are met, and has not adopted the suggestion
that the word ``salary'' be added to the phrase referring to the
``payment of any fee or other compensation.''
Admission Charge.--Assuming that the performance involves no profit
motive and no one responsible for it gets paid a fee, it must still meet
one of two alternative conditions to be exempt. As specified in
subclauses (A) and (B) of section 110(4), these conditions are: (1) that
no direct or indirect admission charge is made, or (2) that the net
proceeds are ``used exclusively for educational, religious, or
charitable purposes and not for private financial gain.''
Under the second of these conditions, a performance meeting the
other conditions of clause (4) would be exempt even if an admission fee
is charged, provided any amounts left ``after deducting the reasonable
costs of producing the performance'' are used solely for bona fide
educational, religious, or charitable purposes. In cases arising under
this second condition and as provided in subclause (B), where there is
an admission charge, the copyright owner is given an opportunity to
decide whether and under what conditions the copyrighted work should be
performed; otherwise, owners could be compelled to make involuntary
donations to the fund-raising activities of causes to which they are
opposed. The subclause would thus permit copyright owners to prevent
public performances of their works under section 110(4)(B) by serving
notice of objection, with the reasons therefor, at least seven days in
advance.
Mere Reception in Public. Unlike the first four clauses of section
110, clause (5) is not to any extent a counterpart of the ``for profit''
limitation of the present statute. It applies to performances and
displays of all types of works, and its purpose is to exempt from
copyright liability anyone who merely turns on, in a public place, an
ordinary radio or television receiving apparatus of a kind commonly sold
to members of the public for private use.
The basic rationale of this clause is that the secondary use of the
transmission by turning on an ordinary receiver in public is so remote
and minimal that no further liability should be imposed. In the vast
majority of these cases no royalties are collected today, and the
exemption should be made explicit in the statute. This clause has
nothing to do with cable television systems and the exemptions would be
denied in any case where the audience is charged directly to see or hear
the transmission.
With respect to section 110(5), the conference substitute conforms
to the language in the Senate bill. It is the intent of the conferees
that a small commercial establishment of the type involved in Twentieth
Century Music Corp. v. Aiken, 422 U.S. 151 (1975), [95 S.Ct. 2040, 45
L.Ed.2d 84], which merely augmented a home-type receiver and which was
not of sufficient size to justify, as a practical matter, a subscription
to a commercial background music service, would be exempt. However,
where the public communication was by means of something other than a
home-type receiving apparatus, or where the establishment actually makes
a further transmission to the public, the exemption would not apply.
On June 17, 1975, the Supreme Court handed down a decision in
Twentieth Century Music Corp. v. Aiken, 95 S.Ct. 2040 [422 U.S. 151, 45
L.Ed.2d 84], that raised fundamental questions about the proper
interpretation of section 110(5). The defendant, owner and operator of a
fast-service food shop in downtown Pittsburgh, had ``a radio with
outlets to four speakers in the ceiling,'' which he apparently turned on
and left on throughout the business day. Lacking any performing license,
he was sued for copyright infringement by two ASCAP members. He lost in
the District Court, won a reversal in the Third Circuit Court of
Appeals, and finally prevailed, by a margin of 7-2, in the Supreme
Court.
The Aiken decision is based squarely on the two Supreme Court
decisions dealing with cable television. In Fortnightly Corp. v. United
Artists, 392 U.S. 390 [88 S.Ct. 2084, 20 L.Ed.2d 1176, rehearing denied
89 S.Ct. 65, 393 U.S. 902, 21 L.Ed.2d 190], and again in Teleprompter
Corp. v. CBS, 415 U.S. 394 [94 S.Ct. 1129, 39 L.Ed.2d 415], the Supreme
Court has held that a CATV operator was not ``performing'' within the
meaning of the 1909 statute, when it picked up broadcast signals off the
air and retransmitted them to subscribers by cable. The Aiken decision
extends this interpretation of the scope of the 1909 statute's right of
``public performance for profit'' to a situation outside the CATV
context and, without expressly overruling the decision in Buck v.
Jewell-LaSalle Realty Co., 283 U.S. 191 (1931) [51 S.Ct. 410, 75 L.Ed.
971], effectively deprives it of much meaning under the present law. For
more than forty years the Jewell-LaSalle rule was thought to require a
business establishment to obtain copyright licenses before it could
legally pick up any broadcasts off the air and retransmit them to its
guests and patrons. As reinterpreted by the Aiken decision, the rule of
Jewell-LaSalle applies only if the broadcast being retransmitted was
itself unlicensed.
The majority of the Supreme Court in the Aiken case based its
decision on a narrow construction of the word ``perform'' in the 1909
statute. This basis for the decision is completely overturned by the
present bill and its broad definition of ``perform'' in section 101. The
Committee has adopted the language of section 110(5) with an amendment
expressly denying the exemption in situations where ``the performance or
display is further transmitted beyond the place where the receiving
apparatus is located''; in doing so, it accepts the traditional, pre-
Aiken, interpretation of the Jewell-LaSalle decision, under which public
communication by means other than a home receiving set, or further
transmission of a broadcast to the public, is considered an infringing
act.
Under the particular fact situation in the Aiken case, assuming a
small commercial establishment and the use of a home receiver with four
ordinary loudspeakers grouped within a relatively narrow circumference
from the set, it is intended that the performances would be exempt under
clause (5). However, the Committee considers this fact situation to
represent the outer limit of the exemption, and believes that the line
should be drawn at that point. Thus, the clause would exempt small
commercial establishments whose proprietors merely bring onto their
premises standard radio or television equipment and turn it on for their
customers' enjoyment, but it would impose liability where the proprietor
has a commercial ``sound system'' installed or converts a standard home
receiving apparatus (by augmenting it with sophisticated or extensive
amplification equipment) into the equivalent of a commercial sound
system. Factors to consider in particular cases would include the size,
physical arrangement, and noise level of the areas within the
establishment where the transmissions are made audible or visible, and
the extent to which the receiving apparatus is altered or augmented for
the purpose of improving the aural or visual quality of the performance
for individual members of the public using those areas.
Agricultural Fairs. The Committee also amended clause (6) of section
110 of S. 22 as adopted by the Senate. As amended, the provision would
exempt ``performance of a nondramatic musical work by a governmental
body or a nonprofit agricultural or horticultural organization, in the
course of an annual agricultural or horticultural fair or exhibition
conducted by such body or organization.'' The exemption extends only to
the governmental body or nonprofit organization sponsoring the fair; the
amendment makes clear that, while such a body or organization cannot
itself be held vicariously liable for infringements by concessionaires
at the fair, the concessionaires themselves enjoy no exemption under the
clause.
Retail Sale of Phonorecords. Clause (7) provides that the
performance of a nondramatic musical work or of a sound recording by a
vending establishment open to the public at large without any direct or
indirect admission charge, where the sole purpose of the performance is
to promote the retail sale of copies or phonorecords of the work, is not
an infringement of copyright. This exemption applies only if the
performance is not transmitted beyond the place where the establishment
is located and is within the immediate area where the sale is occurring.
Transmission to Handicapped Audiences. The new clause (8) of
subsection 110, which had been added to S. 22 by the Senate Judiciary
Committee when it reported the bill on November 20, 1975, and had been
adopted by the Senate on February 19, 1976, was substantially amended by
the Committee. Under the amendment, the exemption would apply only to
performances of ``nondramatic literary works'' by means of ``a
transmission specifically designed for and primarily directed to'' one
or the other of two defined classes of handicapped persons: (1) ``blind
or other handicapped persons who are unable to read normal printed
material as a result of their handicap'' or (2) ``deaf or other
handicapped persons who are unable to hear the aural signals
accompanying a transmission.'' Moreover, the exemption would be
applicable only if the performance is ``without any purpose of direct or
indirect commercial advantage,'' and if the transmission takes place
through government facilities or through the facilities of a
noncommercial educational broadcast station, a radio subcarrier
authorization (SCA), or a cable system.
Amendments
2002--Pub. L. 107-273, Sec. 13301(b)(2), inserted concluding
provisions relating to par. (2).
Par. (2). Pub. L. 107-273, Sec. 13301(b)(1), added par. (2) and
struck out former par. (2) which read as follows: ``performance of a
nondramatic literary or musical work or display of a work, by or in the
course of a transmission, if--
``(A) the performance or display is a regular part of the
systematic instructional activities of a governmental body or a
nonprofit educational institution; and
``(B) the performance or display is directly related and of
material assistance to the teaching content of the transmission; and
``(C) the transmission is made primarily for--
``(i) reception in classrooms or similar places normally
devoted to instruction, or
``(ii) reception by persons to whom the transmission is
directed because their disabilities or other special
circumstances prevent their attendance in classrooms or similar
places normally devoted to instruction, or
``(iii) reception by officers or employees of governmental
bodies as a part of their official duties or employment;''.
Par. (4)(B). Pub. L. 107-273, Sec. 13210(6), substituted colon for
semicolon at end of introductory provisions.
1999--Par. (5)(A). Pub. L. 106-44 redesignated cls. (A) and (B) as
(i) and (ii), respectively.
1998--Pub. L. 105-298, Sec. 202(a)(2), inserted concluding
provisions relating to par. (5).
Par. (5). Pub. L. 105-298, Sec. 202(a)(1), designated existing
provisions as subpar. (A), inserted ``except as provided in subparagraph
(B),'' after ``(A)'', and added subpar. (B).
Par. (7). Pub. L. 105-298, Sec. 202(b), inserted ``or of the
audiovisual or other devices utilized in such performance,'' after
``phonorecords of the work,''.
1997--Par. (8). Pub. L. 105-80, Sec. 12(a)(6)(A), substituted
semicolon for period at end.
Par. (9). Pub. L. 105-80, Sec. 12(a)(6)(B), substituted ``; and''
for period at end.
Par. (10). Pub. L. 105-80, Sec. 12(a)(6)(C), substituted ``paragraph
(4)'' for ``paragraph 4 above''.
1982--Par. (10). Pub. L. 97-366 added par. (10).
Effective Date of 1998 Amendment
Amendment by Pub. L. 105-298 effective 90 days after Oct. 27, 1998,
see section 207 of Pub. L. 105-298, set out as a note under section 101
of this title.
Effective Date of 1982 Amendment
Amendment by Pub. L. 97-366 effective 30 days after Oct. 25, 1982,
see section 2 of Pub. L. 97-366, set out as a note under section 708 of
this title.
Section Referred to in Other Sections
This section is referred to in sections 106, 111, 112, 118, 501,
504, 511 of this title; title 18 section 2319.
