§ 118. — Scope of exclusive rights: Use of certain works in connection with noncommercial broadcasting.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 17USC118]
TITLE 17--COPYRIGHTS
CHAPTER 1--SUBJECT MATTER AND SCOPE OF COPYRIGHT
Sec. 118. Scope of exclusive rights: Use of certain works in
connection with noncommercial broadcasting
(a) The exclusive rights provided by section 106 shall, with respect
to the works specified by subsection (b) and the activities specified by
subsection (d), be subject to the conditions and limitations prescribed
by this section.
(b) Notwithstanding any provision of the antitrust laws, any owners
of copyright in published nondramatic musical works and published
pictorial, graphic, and sculptural works and any public broadcasting
entities, respectively, may negotiate and agree upon the terms and rates
of royalty payments and the proportionate division of fees paid among
various copyright owners, and may designate common agents to negotiate,
agree to, pay, or receive payments.
(1) Any owner of copyright in a work specified in this
subsection or any public broadcasting entity may submit to the
Librarian of Congress proposed licenses covering such activities
with respect to such works. The Librarian of Congress shall proceed
on the basis of the proposals submitted as well as any other
relevant information. The Librarian of Congress shall permit any
interested party to submit information relevant to such proceedings.
(2) License agreements voluntarily negotiated at any time
between one or more copyright owners and one or more public
broadcasting entities shall be given effect in lieu of any
determination by the Librarian of Congress: Provided, That copies of
such agreements are filed in the Copyright Office within thirty days
of execution in accordance with regulations that the Register of
Copyrights shall prescribe.
(3) In the absence of license agreements negotiated under
paragraph (2), the Librarian of Congress shall, pursuant to chapter
8, convene a copyright arbitration royalty panel to determine and
publish in the Federal Register a schedule of rates and terms which,
subject to paragraph (2), shall be binding on all owners of
copyright in works specified by this subsection and public
broadcasting entities, regardless of whether such copyright owners
have submitted proposals to the Librarian of Congress. In
establishing such rates and terms the copyright arbitration royalty
panel may consider the rates for comparable circumstances under
voluntary license agreements negotiated as provided in paragraph
(2). The Librarian of Congress shall also establish requirements by
which copyright owners may receive reasonable notice of the use of
their works under this section, and under which records of such use
shall be kept by public broadcasting entities.
(c) The initial procedure specified in subsection (b) shall be
repeated and concluded between June 30 and December 31, 1997, and at
five-year intervals thereafter, in accordance with regulations that the
Librarian of Congress shall prescribe.
(d) Subject to the terms of any voluntary license agreements that
have been negotiated as provided by subsection (b)(2), a public
broadcasting entity may, upon compliance with the provisions of this
section, including the rates and terms established by a copyright
arbitration royalty panel under subsection (b)(3), engage in the
following activities with respect to published nondramatic musical works
and published pictorial, graphic, and sculptural works:
(1) performance or display of a work by or in the course of a
transmission made by a noncommercial educational broadcast station
referred to in subsection (g); and
(2) production of a transmission program, reproduction of copies
or phonorecords of such a transmission program, and distribution of
such copies or phonorecords, where such production, reproduction, or
distribution is made by a nonprofit institution or organization
solely for the purpose of transmissions specified in paragraph (1);
and
(3) the making of reproductions by a governmental body or a
nonprofit institution of a transmission program simultaneously with
its transmission as specified in paragraph (1), and the performance
or display of the contents of such program under the conditions
specified by paragraph (1) of section 110, but only if the
reproductions are used for performances or displays for a period of
no more than seven days from the date of the transmission specified
in paragraph (1), and are destroyed before or at the end of such
period. No person supplying, in accordance with paragraph (2), a
reproduction of a transmission program to governmental bodies or
nonprofit institutions under this paragraph shall have any liability
as a result of failure of such body or institution to destroy such
reproduction: Provided, That it shall have notified such body or
institution of the requirement for such destruction pursuant to this
paragraph: And provided further, That if such body or institution
itself fails to destroy such reproduction it shall be deemed to have
infringed.
(e) Except as expressly provided in this subsection, this section
shall have no applicability to works other than those specified in
subsection (b). Owners of copyright in nondramatic literary works and
public broadcasting entities may, during the course of voluntary
negotiations, agree among themselves, respectively, as to the terms and
rates of royalty payments without liability under the antitrust laws.
Any such terms and rates of royalty payments shall be effective upon
filing in the Copyright Office, in accordance with regulations that the
Register of Copyrights shall prescribe.
(f) Nothing in this section shall be construed to permit, beyond the
limits of fair use as provided by section 107, the unauthorized
dramatization of a nondramatic musical work, the production of a
transmission program drawn to any substantial extent from a published
compilation of pictorial, graphic, or sculptural works, or the
unauthorized use of any portion of an audiovisual work.
(g) As used in this section, the term ``public broadcasting entity''
means a noncommercial educational broadcast station as defined in
section 397 of title 47 and any nonprofit institution or organization
engaged in the activities described in paragraph (2) of subsection (d).
(Pub. L. 94-553, title I, Sec. 101, Oct. 19, 1976, 90 Stat. 2565; Pub.
L. 103-198, Sec. 4, Dec. 17, 1993, 107 Stat. 2309; Pub. L. 106-44,
Sec. 1(g)(3), Aug. 5, 1999, 113 Stat. 222; Pub. L. 107-273, div. C,
title III, Sec. 13210(7), Nov. 2, 2002, 116 Stat. 1909.)
Historical and Revision Notes
house report no. 94-1476
General Background. During its consideration of revision legislation
in 1975, the Senate Judiciary Committee adopted an amendment offered by
Senator Charles McC. Mathias. The amendment, now section 118 of the
Senate bill [this section], grants to public broadcasting a compulsory
license for use of nondramatic literary and musical works, as well as
pictorial, graphic, and sculptural works, subject to payment of
reasonable royalty fees to be set by the Copyright Royalty Tribunal
established by that bill. The Mathias amendment requires that public
broadcasters, at periodic intervals, file a notice with the Copyright
Office containing information required by the Register of Copyrights and
deposit a statement of account and the total royalty fees for the period
covered by the statement. In July of each year all persons having a
claim to such fees are to file their claims with the Register of
Copyrights. If no controversy exists, the Register would distribute the
royalties to the various copyright owners and their agents after
deducting reasonable administrative costs; controversies are to be
settled by the Tribunal.
On July 10, 1975, the House Subcommittee heard testimony on the
Mathias amendment from representatives of public broadcasters, authors,
publishers, and music performing rights societies. The public
broadcasters pointed to Congressional concern for the development of
their activities as evidenced by the Public Broadcasting Act [47 U.S.C.
390 et seq.]. They urged that a compulsory license was essential to
assure public broadcasting broad access to copyrighted materials at
reasonable royalties and without administratively cumbersome and costly
``clearance'' problems that would impair the vitality of their
operations. The opponents of the amendment argued that the nature of
public broadcasting has changed significantly in the past decade, to the
extent that it now competes with commercial broadcasting as a national
entertainment and cultural medium. They asserted that the performing
rights society arrangements under which copyrighted music is licensed
for performance removed any problem in clearing music for broadcasting,
and that voluntary agreements could adequately resolve the copyright
problems feared by public broadcasters, at less expense and burden than
the compulsory license, for synchronization and literary rights. The
authors of literary works stressed that a compulsory licensing system
would deny them the fundamental right to control the use of their works
and protect their reputation in a major communications medium.
General Policy Considerations. The Committee is cognizant of the
intent of Congress, in enacting the Public Broadcasting Act on November
7, 1967 [47 U.S.C. 390 et seq.], that encouragement and support of
noncommercial broadcasting is in the public interest. It is also aware
that public broadcasting may encounter problems not confronted by
commercial broadcasting enterprises, due to such factors as the special
nature of programming, repeated use of programs, and, of course, limited
financial resources. Thus, the Committee determined that the nature of
public broadcasting does warrant special treatment in certain areas.
However, the Committee did not feel that the broad compulsory license
provided in the Senate bill is necessary to the continued successful
operation of public broadcasting. In addition, the Committee believes
that the system provided in the Senate bill for the deposit of royalty
fees with the Copyright Office for distribution to claimants, and the
resolution of disputes over such distribution by a statutory tribunal,
can be replaced by payments directly between the parties, without the
intervention of government machinery and its attendant administrative
costs.
In general, the Committee amended the public broadcasting provisions
of the Senate bill toward attainment of the objective clearly stated in
the Report of the Senate Judiciary Committee, namely, that copyright
owners and public broadcasters be encouraged to reach voluntary private
agreements.
Procedures. Not later than thirty days following the publication by
the President of the notice announcing the initial appointments to the
Copyright Royalty Commission (specified in Chapter 8 [Sec. 801 et seq.
of this title]), the Chairman of the Commission is to publish notice in
the Federal Register of the initiation of proceedings to determine
``reasonable terms and rates'' for certain uses of published nondramatic
musical works and published pictorial, graphic and sculptural works,
during a period ending on December 31, 1982.
Copyright owners and public broadcasting entities that do not reach
voluntary agreement are bound by the terms and rates established by the
Commission, which are to be published in the Federal Register within six
months of the notice of initiation of proceedings. During the period
between the effective date of the Act [Jan. 1, 1978] and the publication
of the rates and terms, the Committee has preserved the status quo by
providing, in section 118(b)(4), that the Act does not afford to
copyright owners or public broadcasting entities any greater or lesser
rights with respect to the relevant uses of nondramatic musical works
and pictorial, graphic, and sculptural works than those afforded under
the law in effect on December 31, 1977.
License agreements that have been voluntarily negotiated supersede,
as between the parties to the agreement, the terms and rates established
by the Commission, provided that copies of the agreements are properly
filed with the Copyright Office within 30 days of execution. Under
clause (2) of section 118(b), the agreements may be negotiated ``at any
time''--whether before, during, or after determinations by the
Commission.
Under section 118(c), the procedures for the Commission's
establishing such rates and terms are to be repeated in the last half of
1982 and every five years thereafter.
Establishment of Reasonable Terms and Rates. In establishing
reasonable terms and rates for public broadcasting use of the specified
works, the Commission, under clause (b)(1) of section 118 is to consider
proposals timely submitted to it, as well as ``any other relevant
information'', including that put forward for its consideration ``by any
interested party.''
The Committee does not intend that owners of copyrighted material be
required to subsidize public broadcasting. It is intended that the
Commission assure a fair return to copyright owners without unfairly
burdening public broadcasters. Section 118(b)(3) provides that ``the
Commission may consider the rates for comparable circumstances under
voluntary license agreements.'' The Commission is also expected to
consider both the general public interest in encouraging the growth and
development of public broadcasting, and the ``promotion of science and
the useful arts'' through the encouragement of musical and artistic
creation.
The Committee anticipates that the ``terms'' established by the
Commission shall include provisions as to acceptable methods of payment
of royalties by public broadcasting entities to copyright owners. For
example, where the whereabouts of the copyright owner may not be readily
known, the terms should specify the nature of the obligation of the
public broadcasting entity to locate the owner, or to set aside or
otherwise assure payment of appropriate royalties, should he or she
appear and make a claim. Section 118(b)(3) requires the Commission ``to
establish requirements by which copyright owners may receive reasonable
notice of the use of their works.'' The Committee intends that these
requirements shall not impose undue hardships on public broadcasting
entities and, in the above illustration, shall provide for the specific
termination of any period during which the public broadcasting entity is
required to set aside payments. It is expected that, in some cases,
especially in the area of pictorial, graphic, and sculptural works, the
whereabouts of the owners of copyright may not be known and they may
never appear to claim payment of royalties.
The Commission is also to establish record keeping requirements for
public broadcasting entities in order to facilitate the identification,
calculation, allocation and payment of claims and royalties.
Works Affected. Under sections 118(b) and (e) of the Committee's
amendment, the establishment of rates and terms by the Copyright Royalty
Commission pertains only to the use of published nondramatic musical
works, and published pictorial, graphic, and sculptural works. As under
the Senate bill; rights in plays, operas, ballet and other stage
presentations, motion pictures, and other audiovisual works are not
affected.
Section 118(f) is intended to make clear that this section does not
permit unauthorized use, beyond the limits of section 107, of individual
frames from a filmstrip or any other portion of any audiovisual work.
Additionally, the application of this section to pictorial, graphic, and
sculptural works does not extend to the production of transmission
programs drawn to any substantial extent from a compilation of such
works.
The Committee also concluded that the performance of nondramatic
literary works should not be subject to Commission determination. It was
particularly concerned that a compulsory license for literary works
would result in loss of control by authors over the use of their work in
violation of basic principles of artistic and creative freedom. It is
recognized that copyright not only provides compensation to authors, but
also protection as to how and where their works are used. The Committee
was assured by representatives of authors and publishers that licensing
arrangements for readings from their books, poems, and other works on
public broadcasting programs for reasonable compensation and under
reasonable safeguards for authors' rights could be worked out in private
negotiation. The Committee strongly urges the parties to work toward
mutually acceptable licenses; to facilitate their negotiations and aid
in the possible establishment of clearance mechanisms and rates, the
Committee's amendment provides the parties, in section 118(e)(1), with
an appropriately limited exemption from the antitrust laws [15 U.S.C. 1
et seq.].
The Committee has also provided, in paragraph (2) of clause (e),
that on January 3, 1980, the Register of Copyrights, after consultation
with the interested parties, shall submit a report to Congress on the
extent to which voluntary licensing arrangements have been reached with
respect to public broadcast use of nondramatic literary works, and
present legislative or other recommendations, if warranted.
The use of copyrighted sound recordings in educational television
and radio programs distributed by or through public broadcasting
entities is governed by section 114 and is discussed in connection with
that section.
Activities Affected. Section 118(d) specifies the activities which
may be engaged in by public broadcasting entities under terms and rates
established by the Commission. These include the performance or display
of published nondramatic musical works, and of published pictorial,
graphic, and sculptural works, in the course of transmissions by
noncommercial educational broadcast stations; and the production,
reproduction, and distribution of transmission programs including such
works by nonprofit organizations for the purpose of such transmissions.
It is the intent of the Committee that ``interconnection'' activities
serving as a technical adjunct to such transmissions, such as the use of
satellites or microwave equipment, be included within the specified
activities.
Paragraph (3) of clause (d) also includes the reproduction,
simultaneously with transmission, of public broadcasting programs by
governmental bodies or nonprofit institutions, and the performance or
display of the contents of the reproduction under the conditions of
section 110(1). However, the reproduction so made must be destroyed at
the end of seven days from the transmission.
This limited provision for unauthorized simultaneous or off-the-air
reproduction is limited to nondramatic musical works and pictorial,
graphic and sculptural works included in public broadcasting
transmissions. It does not extend to other works included in the
transmissions, or to the entire transmission program.
It is the intent of the Committee that schools be permitted to
engage in off-the-air reproduction to the extent and under the
conditions provided in [section] 118(d)(3); however, in the event a
public broadcasting station or producer makes the reproduction and
distributes a copy to the school, the station or producer will not be
held liable for the school's failure to destroy the reproduction,
provided it has given notice of the requirement of destruction. In such
a case the school itself, although it did not engage in the act of
reproduction, is deemed an infringer fully subject to the remedies
provided in Chapter 5 of the Act [Sec. 501 et seq. of this title]. The
establishment of standards for adequate notice under this provision
should be considered by the Commission.
Section 118(f) makes it clear that the rights of performance and
other activities specified in subsection (d) do not extend to the
unauthorized dramatization of a nondramatic musical work.
References in Text
The antitrust laws, referred to in subsecs. (b) and (e), are
classified generally to chapter 1 (Sec. 1 et seq.) of Title 15, Commerce
and Trade.
Amendments
2002--Subsec. (b)(1). Pub. L. 107-273 struck out ``to it'' after
``proposals submitted'' in second sentence.
1999--Subsec. (e). Pub. L. 106-44 struck out ``(1)'' before ``Owners
of'' and struck out par. (2) which read as follows: ``On January 3,
1980, the Register of Copyrights, after consulting with authors and
other owners of copyright in nondramatic literary works and their
representatives, and with public broadcasting entities and their
representatives, shall submit to the Congress a report setting forth the
extent to which voluntary licensing arrangements have been reached with
respect to the use of nondramatic literary works by such broadcast
stations. The report should also describe any problems that may have
arisen, and present legislative or other recommendations, if
warranted.''
1993--Subsec. (b). Pub. L. 103-198, Sec. 4(1)(A), (B), struck out
first two sentences which read as follows: ``Not later than thirty days
after the Copyright Royalty Tribunal has been constituted in accordance
with section 802, the Chairman of the Tribunal shall cause notice to be
published in the Federal Register of the initiation of proceedings for
the purpose of determining reasonable terms and rates of royalty
payments for the activities specified by subsection (d) with respect to
published nondramatic musical works and published pictorial, graphic,
and sculptural works during a period beginning as provided in clause (3)
of this subsection and ending on December 31, 1982. Copyright owners and
public broadcasting entities shall negotiate in good faith and cooperate
fully with the Tribunal in an effort to reach reasonable and expeditious
results.'', and in third sentence substituted ``published nondramatic
musical works and published pictorial, graphic, and sculptural works''
for ``works specified by this subsection''.
Subsec. (b)(1). Pub. L. 103-198, Sec. 4(1)(C), struck out ``, within
one hundred and twenty days after publication of the notice specified in
this subsection,'' after ``broadcasting entity may'' and substituted
``Librarian of Congress'' for ``Copyright Royalty Tribunal'' wherever
appearing.
Subsec. (b)(2). Pub. L. 103-198, Sec. 4(1)(D), substituted
``Librarian of Congress'' for ``Tribunal''.
Subsec. (b)(3). Pub. L. 103-198, Sec. 4(1)(E)(ii), (iii), in second
sentence, substituted ``copyright arbitration royalty panel'' for
``Copyright Royalty Tribunal'' and ``paragraph (2)'' for ``clause (2) of
this subsection'', and in last sentence, substituted ``Librarian of
Congress'' for ``Copyright Royalty Tribunal''.
Pub. L. 103-198, Sec. 4(1)(E)(i), substituted first sentence for
former first sentence which read as follows: ``Within six months, but
not earlier than one hundred and twenty days, from the date of
publication of the notice specified in this subsection the Copyright
Royalty Tribunal shall make a determination and publish in the Federal
Register a schedule of rates and terms which, subject to clause (2) of
this subsection, shall be binding on all owners of copyright in works
specified by this subsection and public broadcasting entities,
regardless of whether or not such copyright owners and public
broadcasting entities have submitted proposals to the Tribunal.''
Subsec. (b)(4). Pub. L. 103-198, Sec. 4(1)(F), struck out par. (4)
which read as follows: ``With respect to the period beginning on the
effective date of this title and ending on the date of publication of
such rates and terms, this title shall not afford to owners of copyright
or public broadcasting entities any greater or lesser rights with
respect to the activities specified in subsection (d) as applied to
works specified in this subsection than those afforded under the law in
effect on December 31, 1977, as held applicable and construed by a court
in an action brought under this title.''
Subsec. (c). Pub. L. 103-198, Sec. 4(2), substituted ``1997'' for
``1982'' and ``Librarian of Congress'' for ``Copyright Royalty
Tribunal''.
Subsec. (d). Pub. L. 103-198, Sec. 4(3), in introductory provisions,
struck out ``to the transitional provisions of subsection (b)(4), and''
after ``Subject'' and substituted ``a copyright arbitration royalty
panel'' for ``the Copyright Royalty Tribunal'', and in pars. (2) and
(3), substituted ``paragraph'' for ``clause'' wherever appearing.
Subsec. (g). Pub. L. 103-198, Sec. 4(4), substituted ``paragraph''
for ``clause''.
Effective Date
Section effective Oct. 19, 1976, see section 102 of Pub. L. 94-553,
set out as a note preceding section 101 of this title.
Section Referred to in Other Sections
This section is referred to in sections 106, 114, 501, 504, 511,
801, 802, 803, 1203, 1204 of this title; title 18 section 2319.
