Notes on 17 U.S.C. § 106 : US Code - Notes

    (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
    computer systems.
      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
    it.
      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
    nonprofit uses.
      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."

                                AMENDMENTS                            
      2002 - Pub. L. 107-273 substituted "122" for "121" in
    introductory provisions.
      1999 - Pub. L. 106-44 substituted "121" for "120" in introductory
    provisions.
      1995 - Par. (6). Pub. L. 104-39 added par. (6).
      1990 - Pub. L. 101-650 substituted "120" for "119" in
    introductory provisions.
      Pub. L. 101-318 substituted "119" for "118" in introductory
    provisions.

                     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."