Complete Home & Office Legal Guide/Complete Home and Office Legal Guide (Chestnut) (1993).ISO/stat/fed/17ch1_3.asc

Text File | 1993-08-25 | 31KB | 570 lines

/*  We continue on with Chapter 1 of the Copyright Code. Section
117 is specifically about computers!*/

S 114. Scope of exclusive rights in sound recordings

(a) The exclusive rights of the owner of copyright in a sound
recording are limited to the rights specified by clauses (1),
(2), and (3) of section 106 [17 USC S 106 (1)-(3)], and do not
include any right of performance under section 106(4) [17 USC  S
106(4)].

(b) The exclusive right of the owner of copyright in a sound
recording under clause (1) of section 106 [17 USC S 106(1)] is
limited to the right to duplicate the sound recording in the form
of phonorecords, or of copies of motion pictures and other
audiovisual works, that directly or indirectly recapture the
actual sounds fixed in the recording. The exclusive right of the
owner of copyright in a sound recording under clause (2) of
section 106 [17 USC S 106(2)] is limited to the right to prepare
a derivative work in which the actual sounds fixed in  the sound
recording are rearranged, remixed, or otherwise altered in
sequence  or quality.  The exclusive rights of the owner of
copyright in sound recording under clauses (1) and (2) of section
106 [17 USC S 106(1)  and (2)] do not extend to the making of
duplication of another sound recording that consists entirely of
an independent fixation of other sounds, even though such sounds
imitate or simulate those in the copyrighted sound recording. The
exclusive rights of the owner of copyright in a sound recording
under clause (1), (2), and (3) of section 106  [17  USC S
106(1)-(3)]  do not apply to sound recordings included in
educational television and radio programs (as defined in section
397 of title 47) [47 USC S 397] distributed or transmitted  by or
through public  broadcasting  entities (as defined  by section
118(g) [17 USC S 118(g)]), Provided, That copies or phonorecords
of said programs are not commercially distributed by or through
public broadcasting entities to the general public.

(c) This section does not limit or impair the exclusive right to
perform publicly, by means of a phonorecord, any of the works
specified by section 106(4) [17 USC S 106(4)].

(d) On January 3, 1978, the Register of Copyrights, after
consulting with representatives of owners of copyrighted
materials, representatives of the broadcasting, recording, motion
picture, entertainment industries, and arts organizations,
representatives of organized labor and performers of copyrighted
materials, shall submit to the Congress a report setting forth
recommendations as to whether this section should be amended to
provide for performers and copyright owners of copyrighted
material any performance rights in such material. The report
should describe the status of such rights in foreign countries,
the views of major interested parties, and specific legislative
or other recommendations, if any.

S  115. Scope of exclusive rights in nondramatic musical works:
Compulsory license for making and distributing phonorecords

In the case of nondramatic musical works, the exclusive rights
provided by clauses (1) and (3) of section 106 [17 USC  S
106(1)-(3)], to make and to distribute  phonorecords of such
works, are subject to compulsory licensing under the conditions
specified by this section.

(a) Availability and scope of compulsory license.  (1)  When
phonorecords of a nondramatic  musical  work have  been
distributed to the public in the United States under the
authority of the copyright owner, any other person may,  by
complying with the provisions of this  section,  obtain  a
compulsory license to make and distribute  phonorecords  of the
work.  A person may obtain a compulsory license only  if his or
her primary purpose in making  phonorecords is to distribute them
to the public for private use.  A person may not obtain a
compulsory license for use of the work in the making of
phonorecords duplicating a sound recording fixed by  another,
unless: (i) such sound  recording was fixed lawfully; and (ii)
the making of the phonorecords was authorized  by the owner of
copyright in the sound  recording, or, if the sound recording was
fixed before February  15, 1972, by any person who fixed the
sound recording  pursuant to an express license from the owner of
the copyright in the musical  work or pursuant to a valid
compulsory license  for use of such work in a sound recording.

(2) A compulsory license includes the privilege of making  a
musical arrangement of the work to the extent necessary  to
conform it to the style or manner of interpretation of  the
performance  involved, but the arrangement shall not  change the
basic melody or fundamental character of the work,  and shall not
be subject to protection as  a  derivative  work under this title
[17 USC SS 101 et seq.], except with  the express consent of the
copyright owner.

(b)  Notice of intention to obtain compulsory license. (1) Any
person who wishes to obtain a compulsory license under this
section  shall, before or within thirty days  after making, and
before distributing any phonorecords of the work, serve notice of
intention to do so on the copyright owner. If the registration or
other public records of the Copyright Office do  not identify the
copyright owner and include an  address at  which  notice can be
served, it shall be  sufficient to file  the notice of intention
in the Copyright Office.  The notice  shall comply, in form,
content, and manner of service, with requirements that the
Register of Copyrights shall prescribe by regulation.

(2)  Failure to serve or file the notice required by  clause
(1) forecloses the possibility of a compulsory license  and,
in  the absence of a negotiated license, renders the  making
and  distribution  of  phonorecords actionable  as  acts  of
infringement  under  section 501 [17 USC S 501]  and  fully
subject to the remedies provided by sections 502 through 506
and 509 [17 USC SS 502-506, 509].

(c) Royalty payable under compulsory license. (1) To be entitled
to receive royalties under a compulsory license, the copyright
owner must be identified in the registration or other public
records of the Copyright Office. The owner is entitled to
royalties for phonorecords made and  distributed  after  being
so identified, but is  not  entitled  to recover for any
phonorecords previously made and distributed.

(2)  Except as provided by clause (1), the royalty  under  a
compulsory  license shall be payable for  every  phonorecord made
and distributed in accordance with the  license.   For this
purpose, a phonorecord is considered "distributed"  if the person
exercising the compulsory license has voluntarily and permanently
parted with its possession.  With respect to each work embodied
in the phonorecord, the royalty shall  be either two and
three-fourth cents, or one-half of one  cent per minute of
playing time or fraction  thereof,  whichever amount is larger.

(3) Royalty payments shall be made on or before the twentieth
day of each month and shall include all  royalties  for the month
next preceding. Each monthly payment shall be made under oath and
shall comply with requirements that  the Register of Copyrights
shall prescribe by regulation. The Register shall  also
prescribe regulations  under which detailed cumulative annual
statements of account, certified by  a certified public
accountant, shall be filed for every compulsory license under
this section. The  regulations covering  both the  monthly and
the  annual  statements  of account  shall prescribe the form,
content, and  manner  of certification with respect to the number
of records made and the number of records distributed. (4)  If
the copyright owner does not  receive  the  monthly payment  and
monthly and annual statements of  account  when due, the owner
may give written notice to the licensee that, unless  the default
is remedied within thirty days from  the date of the notice, the
compulsory license will be automati- cally  terminated.   Such
termination  render