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