Copyrights - 17 USC Section 112

01/19/04

Sec. 112. Limitations on exclusive rights: Ephemeral recordings

(a)(1) Notwithstanding the provisions of section 106, and except
in the case of a motion picture or other audiovisual work, it is
not an infringement of copyright for a transmitting organization
entitled to transmit to the public a performance or display of a
work, under a license, including a statutory license under section
114(f), or transfer of the copyright or under the limitations on
exclusive rights in sound recordings specified by section 114(a),
or for a transmitting organization that is a broadcast radio or
television station licensed as such by the Federal Communications
Commission and that makes a broadcast transmission of a performance
of a sound recording in a digital format on a nonsubscription
basis, to make no more than one copy or phonorecord of a particular
transmission program embodying the performance or display, if -
(A) the copy or phonorecord is retained and used solely by the
transmitting organization that made it, and no further copies or
phonorecords are reproduced from it; and
(B) the copy or phonorecord is used solely for the transmitting
organization's own transmissions within its local service area,
or for purposes of archival preservation or security; and
(C) unless preserved exclusively for archival purposes, the
copy or phonorecord is destroyed within six months from the date
the transmission program was first transmitted to the public.
(2) In a case in which a transmitting organization entitled to
make a copy or phonorecord under paragraph (1) in connection with
the transmission to the public of a performance or display of a
work is prevented from making such copy or phonorecord by reason of
the application by the copyright owner of technical measures that
prevent the reproduction of the work, the copyright owner shall
make available to the transmitting organization the necessary means
for permitting the making of such copy or phonorecord as permitted
under that paragraph, if it is technologically feasible and
economically reasonable for the copyright owner to do so. If the
copyright owner fails to do so in a timely manner in light of the
transmitting organization's reasonable business requirements, the
transmitting organization shall not be liable for a violation of
section 1201(a)(1) of this title for engaging in such activities as
are necessary to make such copies or phonorecords as permitted
under paragraph (1) of this subsection.
(b) Notwithstanding the provisions of section 106, it is not an
infringement of copyright for a governmental body or other
nonprofit organization entitled to transmit a performance or
display of a work, under section 110(2) or under the limitations on
exclusive rights in sound recordings specified by section 114(a),
to make no more than thirty copies or phonorecords of a particular
transmission program embodying the performance or display, if -
(1) no further copies or phonorecords are reproduced from the
copies or phonorecords made under this clause; and
(2) except for one copy or phonorecord that may be preserved
exclusively for archival purposes, the copies or phonorecords are
destroyed within seven years from the date the transmission
program was first transmitted to the public.
(c) Notwithstanding the provisions of section 106, it is not an
infringement of copyright for a governmental body or other
nonprofit organization to make for distribution no more than one
copy or phonorecord, for each transmitting organization specified
in clause (2) of this subsection, of a particular transmission
program embodying a performance of a nondramatic musical work of a
religious nature, or of a sound recording of such a musical work,
if -
(1) there is no direct or indirect charge for making or
distributing any such copies or phonorecords; and
(2) none of such copies or phonorecords is used for any
performance other than a single transmission to the public by a
transmitting organization entitled to transmit to the public a
performance of the work under a license or transfer of the
copyright; and
(3) except for one copy or phonorecord that may be preserved
exclusively for archival purposes, the copies or phonorecords are
all destroyed within one year from the date the transmission
program was first transmitted to the public.
(d) Notwithstanding the provisions of section 106, it is not an
infringement of copyright for a governmental body or other
nonprofit organization entitled to transmit a performance of a work
under section 110(8) to make no more than ten copies or
phonorecords embodying the performance, or to permit the use of any
such copy or phonorecord by any governmental body or nonprofit
organization entitled to transmit a performance of a work under
section 110(8), if -
(1) any such copy or phonorecord is retained and used solely by
the organization that made it, or by a governmental body or
nonprofit organization entitled to transmit a performance of a
work under section 110(8), and no further copies or phonorecords
are reproduced from it; and
(2) any such copy or phonorecord is used solely for
transmissions authorized under section 110(8), or for purposes of
archival preservation or security; and
(3) the governmental body or nonprofit organization permitting
any use of any such copy or phonorecord by any governmental body
or nonprofit organization under this subsection does not make any
charge for such use.
(e) Statutory License. - (1) A transmitting organization entitled
to transmit to the public a performance of a sound recording under
the limitation on exclusive rights specified by section
114(d)(1)(C)(iv) or under a statutory license in accordance with
section 114(f) is entitled to a statutory license, under the
conditions specified by this subsection, to make no more than 1
phonorecord of the sound recording (unless the terms and conditions
of the statutory license allow for more), if the following
conditions are satisfied:
(A) The phonorecord is retained and used solely by the
transmitting organization that made it, and no further
phonorecords are reproduced from it.
(B) The phonorecord is used solely for the transmitting
organization's own transmissions originating in the United States
under a statutory license in accordance with section 114(f) or
the limitation on exclusive rights specified by section
114(d)(1)(C)(iv).
(C) Unless preserved exclusively for purposes of archival
preservation, the phonorecord is destroyed within 6 months from
the date the sound recording was first transmitted to the public
using the phonorecord.
(D) Phonorecords of the sound recording have been distributed
to the public under the authority of the copyright owner or the
copyright owner authorizes the transmitting entity to transmit
the sound recording, and the transmitting entity makes the
phonorecord under this subsection from a phonorecord lawfully
made and acquired under the authority of the copyright owner.
(2) Notwithstanding any provision of the antitrust laws, any
copyright owners of sound recordings and any transmitting
organizations entitled to a statutory license under this subsection
may negotiate and agree upon royalty rates and license terms and
conditions for making phonorecords of such sound recordings under
this section and the proportionate division of fees paid among
copyright owners, and may designate common agents to negotiate,
agree to, pay, or receive such royalty payments.
(3) No later than 30 days after the date of the enactment of the
Digital Millennium Copyright Act, the Librarian of Congress shall
cause notice to be published in the Federal Register of the
initiation of voluntary negotiation proceedings for the purpose of
determining reasonable terms and rates of royalty payments for the
activities specified by paragraph (1) of this subsection during the
period beginning on the date of the enactment of such Act and
ending on December 31, 2000, or such other date as the parties may
agree. Such rates shall include a minimum fee for each type of
service offered by transmitting organizations. Any copyright owners
of sound recordings or any transmitting organizations entitled to a
statutory license under this subsection may submit to the Librarian
of Congress licenses covering such activities with respect to such
sound recordings. The parties to each negotiation proceeding shall
bear their own costs.
(4) In the absence of license agreements negotiated under
paragraph (2), during the 60-day period commencing 6 months after
publication of the notice specified in paragraph (3), and upon the
filing of a petition in accordance with section 803(a)(1), 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 reasonable rates and terms which,
subject to paragraph (5), shall be binding on all copyright owners
of sound recordings and transmitting organizations entitled to a
statutory license under this subsection during the period beginning
on the date of the enactment of the Digital Millennium Copyright
Act and ending on December 31, 2000, or such other date as the
parties may agree. Such rates shall include a minimum fee for each
type of service offered by transmitting organizations. The
copyright arbitration royalty panel shall establish rates that most
clearly represent the fees that would have been negotiated in the
marketplace between a willing buyer and a willing seller. In
determining such rates and terms, the copyright arbitration royalty
panel shall base its decision on economic, competitive, and
programming information presented by the parties, including -
(A) whether use of the service may substitute for or may
promote the sales of phonorecords or otherwise interferes with or
enhances the copyright owner's traditional streams of revenue;
and
(B) the relative roles of the copyright owner and the
transmitting organization in the copyrighted work and the service
made available to the public with respect to relative creative
contribution, technological contribution, capital investment,
cost, and risk.
In establishing such rates and terms, the copyright arbitration
royalty panel may consider the rates and terms under voluntary
license agreements negotiated as provided in paragraphs (2) and
(3). The Librarian of Congress shall also establish requirements by
which copyright owners may receive reasonable notice of the use of
their sound recordings under this section, and under which records
of such use shall be kept and made available by transmitting
organizations entitled to obtain a statutory license under this
subsection.
(5) License agreements voluntarily negotiated at any time between
1 or more copyright owners of sound recordings and 1 or more
transmitting organizations entitled to obtain a statutory license
under this subsection shall be given effect in lieu of any
determination by a copyright arbitration royalty panel or decision
by the Librarian of Congress.
(6) Publication of a notice of the initiation of voluntary
negotiation proceedings as specified in paragraph (3) shall be
repeated, in accordance with regulations that the Librarian of
Congress shall prescribe, in the first week of January 2000, and at
2-year intervals thereafter, except to the extent that different
years for the repeating of such proceedings may be determined in
accordance with paragraph (3). The procedures specified in
paragraph (4) shall be repeated, in accordance with regulations
that the Librarian of Congress shall prescribe, upon filing of a
petition in accordance with section 803(a)(1), during a 60-day
period commencing on July 1, 2000, and at 2-year intervals
thereafter, except to the extent that different years for the
repeating of such proceedings may be determined in accordance with
paragraph (3). The procedures specified in paragraph (4) shall be
concluded in accordance with section 802.
(7)(A) Any person who wishes to make a phonorecord of a sound
recording under a statutory license in accordance with this
subsection may do so without infringing the exclusive right of the
copyright owner of the sound recording under section 106(1) -
(i) by complying with such notice requirements as the Librarian
of Congress shall prescribe by regulation and by paying royalty
fees in accordance with this subsection; or
(ii) if such royalty fees have not been set, by agreeing to pay
such royalty fees as shall be determined in accordance with this
subsection.
(B) Any royalty payments in arrears shall be made on or before
the 20th day of the month next succeeding the month in which the
royalty fees are set.
(8) If a transmitting organization entitled to make a phonorecord
under this subsection is prevented from making such phonorecord by
reason of the application by the copyright owner of technical
measures that prevent the reproduction of the sound recording, the
copyright owner shall make available to the transmitting
organization the necessary means for permitting the making of such
phonorecord as permitted under this subsection, if it is
technologically feasible and economically reasonable for the
copyright owner to do so. If the copyright owner fails to do so in
a timely manner in light of the transmitting organization's
reasonable business requirements, the transmitting organization
shall not be liable for a violation of section 1201(a)(1) of this
title for engaging in such activities as are necessary to make such
phonorecords as permitted under this subsection.
(9) Nothing in this subsection annuls, limits, impairs, or
otherwise affects in any way the existence or value of any of the
exclusive rights of the copyright owners in a sound recording,
except as otherwise provided in this subsection, or in a musical
work, including the exclusive rights to reproduce and distribute a
sound recording or musical work, including by means of a digital
phonorecord delivery, under sections 106(1), 106(3), and 115, and
the right to perform publicly a sound recording or musical work,
including by means of a digital audio transmission, under sections
106(4) and 106(6).
(f)(1) Notwithstanding the provisions of section 106, and without
limiting the application of subsection (b), it is not an
infringement of copyright for a governmental body or other
nonprofit educational institution entitled under section 110(2) to
transmit a performance or display to make copies or phonorecords of
a work that is in digital form and, solely to the extent permitted
in paragraph (2), of a work that is in analog form, embodying the
performance or display to be used for making transmissions
authorized under section 110(2), if -
(A) such copies or phonorecords are retained and used solely by
the body or institution that made them, and no further copies or
phonorecords are reproduced from them, except as authorized under
section 110(2); and
(B) such copies or phonorecords are used solely for
transmissions authorized under section 110(2).
(2) This subsection does not authorize the conversion of print or
other analog versions of works into digital formats, except that
such conversion is permitted hereunder, only with respect to the
amount of such works authorized to be performed or displayed under
section 110(2), if -
(A) no digital version of the work is available to the
institution; or
(B) the digital version of the work that is available to the
institution is subject to technological protection measures that
prevent its use for section 110(2).
(g) The transmission program embodied in a copy or phonorecord
made under this section is not subject to protection as a
derivative work under this title except with the express consent of
the owners of copyright in the preexisting works employed in the
program.

HISTORICAL AND REVISION NOTES
HOUSE REPORT NO. 94-1476
Section 112 of the bill concerns itself with a special problem
that is not dealt with in the present statutes but is the subject
of provisions in a number of foreign statutes and in the revisions
of the Berne Convention since 1948. This is the problem of what are
commonly called "ephemeral recordings": copies or phonorecords of a
work made for purposes of later transmission by a broadcasting
organization legally entitled to transmit the work. In other words,
where a broadcaster has the privilege of performing or displaying a
work either because he is licensed or because the performance or
display is exempted under the statute, the question is whether he
should be given the additional privilege of recording the
performance or display to facilitate its transmission. The need for
a limited exemption in these cases because of the practical
exigencies of broadcasting has been generally recognized, but the
scope of the exemption has been a controversial issue.
Recordings for Licensed Transmissions. Under subsection (a) of
section 112, an organization that has acquired the right to
transmit any work (other than a motion picture or other audiovisual
work), or that is free to transmit a sound recording under section
114, may make a single copy or phonorecord of a particular program
embodying the work, if the copy or phonorecord is used solely for
the organization's own transmissions within its own area; after 6
months it must be destroyed or preserved solely for archival
purposes.
Organizations Covered. - The ephemeral recording privilege is
given by subsection (a) to "a transmitting organization entitled to
transmit to the public a performance or display of a work."
Assuming that the transmission meets the other conditions of the
provision, it makes no difference what type of public transmission
the organization is making: commercial radio and television
broadcasts, public radio and television broadcasts not exempted by
section 110(2), pay-TV, closed circuit, background music, and so
forth. However, to come within the scope of subsection (a), the
organization must have the right to make the transmission "under a
license or transfer of the copyright or under the limitations on
exclusive rights in sound recordings specified by section 114(a)."
Thus, except in the case of copyrighted sound recordings (which
have no exclusive performing rights under the bill), the
organization must be a transferee or licensee (including compulsory
licensee) of performing rights in the work in order to make an
ephemeral recording of it.
Some concern has been expressed by authors and publishers lest
the term "organization" be construed to include a number of
affiliated broadcasters who could exchange the recording without
restrictions. The term is intended to cover a broadcasting network,
or a local broadcaster or individual transmitter; but, under
clauses (1) and (2) of the subsection, the ephemeral recording must
be "retained and used solely by the transmitting organization that
made it," and must be used solely for that organization's own
transmissions within its own area. Thus, an ephemeral recording
made by one transmitter, whether it be a network or local
broadcaster, could not be made available for use by another
transmitter. Likewise, this subsection does not apply to those
nonsimultaneous transmissions by cable systems not located within a
boundary of the forty-eight contiguous States that are granted a
compulsory license under section 111.
Scope of the Privilege. - Subsection (a) permits the transmitting
organization to make "no more than one copy or phonorecord of a
particular transmission program embodying the performance or
display." A "transmission program" is defined in section 101 as a
body of material produced for the sole purpose of transmission as a
unit. Thus, under section 112(a), a transmitter could make only one
copy or phonorecord of a particular "transmission program"
containing a copyrighted work, but would not be limited as to the
number of times the work itself could be duplicated as part of
other "transmission programs."
Three specific limitations on the scope of the ephemeral
recording privilege are set out in subsection (a), and unless all
are met the making of an "ephemeral recording" becomes fully
actionable as an infringement. The first requires that the copy or
phonorecord be "retained and used solely by the transmitting
organization that made it," and that "no further copies or
phonorecords are reproduced from it." This means that a
transmitting organization would have no privilege of exchanging
ephemeral recordings with other transmitters or of allowing them to
duplicate their own ephemeral recordings from the copy or
phonorecord it has made. There is nothing in the provision to
prevent a transmitting organization from having an ephemeral
recording made by means of facilities other than its own, although
it would not be permissible for a person or organization other than
a transmitting organization to make a recording on its own
initiative for possible sale or lease to a broadcaster. The
ephemeral recording privilege would extend to copies or
phonorecords made in advance for later broadcast, as well as
recordings of a program that are made while it is being transmitted
and are intended for deferred transmission or preservation.
Clause (2) of section 112(a) provides that, to be exempt from
copyright, the copy or phonorecord must be "used solely for the
transmitting organization's own transmissions within its local
service area, or for purposes of archival preservation or
security". The term "local service area" is defined in section
111(f).
Clause (3) of section 112(a) provides that, unless preserved
exclusively for archival purposes, the copy or phonorecord of a
transmission program must be destroyed within six months from the
date the transmission program was first transmitted to the public.
Recordings for Instructional Transmissions. Section 112(b)
represents a response to the arguments of instructional
broadcasters and other educational groups for special recording
privileges, although it does not go as far as these groups
requested. In general, it permits a nonprofit organization that is
free to transmit a performance or display of a work, under section
110(2) or under the limitations on exclusive rights in sound
recordings specified by section 114(a), to make not more than
thirty copies or phonorecords and to use the ephemeral recordings
for transmitting purposes for not more than seven years after the
initial transmission.
Organizations Covered. - The privilege of making ephemeral
recordings under section 112(b) extends to a "governmental body or
other nonprofit organization entitled to transmit a performance or
display of a work under section 110(2) or under the limitations on
exclusive rights in sound recordings specified by section 114(a)."
Aside from phonorecords of copyrighted sound recordings, the
ephemeral recordings made by an instructional broadcaster under
subsection (b) must embody a performance or display that meets all
of the qualifications for exemption under section 110(2). Copies or
phonorecords made for educational broadcasts of a general cultural
nature, or for transmission as part of an information storage and
retrieval system, would not be exempted from copyright protection
under section 112(b).
Motion Pictures and Other Audiovisual Works. - Since the
performance exemption provided by section 110(2) applies only to
nondramatic literary and musical works, there was no need to
exclude motion pictures and other audiovisual works explicitly from
the scope of section 112(b). Another point stressed by the
producers of educational films in this connection, however, was
that ephemeral recordings made by instructional broadcasters are in
fact audiovisual works that often compete for exactly the same
market. They argued that it is unfair to allow instructional
broadcasters to reproduce multiple copies of films and tapes, and
to exchange them with other broadcasters, without paying any
copyright royalties, thereby directly injuring the market of
producers of audiovisual works who now pay substantial fees to
authors for the same uses. These arguments are persuasive and
justify the placing of reasonable limits on the recording
privilege.
Scope of the Privilege. - Under subsection (b) an instructional
broadcaster may make "no more than thirty copies or phonorecords of
a particular transmission program embodying the performance or
display." No further copies or phonorecords can be reproduced from
those made under section 112(b), either by the nonprofit
organization that made them or by anyone else.
On the other hand, if the nonprofit organization does nothing
directly or indirectly to authorize, induce, or encourage others to
duplicate additional copies or phonorecords of an ephemeral
recording in excess of the limit of thirty, it would not be held
responsible as participating in the infringement in such a case,
and the unauthorized copies would not be counted against the
organization's total of thirty.
Unlike ephemeral recordings made under subsection (a), exchanges
of recordings among instructional broadcasters are permitted. An
organization that has made copies or phonorecords under subsection
(b) may use one of them for purposes of its own transmissions that
are exempted by section 110(2), and it may also transfer the other
29 copies to other instructional broadcasters for use in the same
way.
As in the case of ephemeral recordings made under section 112(a),
a copy or phonorecord made for instructional broadcasting could be
reused in any number of transmissions within the time limits
specified in the provision. Because of the special problems of
instructional broadcasters resulting from the scheduling of courses
and the need to prerecord well in advance of transmission, the
period of use has been extended to seven years from the date the
transmission program was first transmitted to the public.
Religious Broadcasts. - Section 112(c) provides that it is not an
infringement of copyright for certain nonprofit organizations to
make no more than one copy for each transmitting organization of a
broadcast program embodying a performance of a nondramatic musical
work of a religious nature or of a sound recording of such a
musical work. In order for this exception to be applicable there
must be no charge for the distribution of the copies, none of the
copies may be used for any performance other than a single
transmission by an organization possessing a license to transmit a
copyrighted work, and, other than for one copy that may be
preserved for archival purposes, the remaining copies must be
destroyed within one year from the date the program was first
transmitted to the public.
Despite objections by music copyright owners, the Committee found
this exemption to be justified by the special circumstances under
which many religious programs are broadcast. These programs are
produced on tape or disk for distribution by mail of one copy only
to each broadcast station carrying the program. None of the
programs are prepared for profit, and the program producer either
pays the station to carry the program or furnishes it free of
charge. The stations have performing licenses, so the copyright
owners receive compensation. Following the performance, the tape is
returned or the disk destroyed. It seems likely that, as has been
alleged, to require a second payment for the mechanical
reproduction under these circumstances would simply have the effect
of driving some of the copyrighted music off the air.
Ephemeral Recordings for Transmissions to Handicapped Audiences.
As a counterpart to its amendment of section 110(8), the Committee
adopted a new provision, subsection (d) of section 112, to provide
an ephemeral recording exemption in the case of transmissions to
the blind and deaf. New subsection would permit the making of one
recording of a performance exempted under section 110(8), and its
retention for an unlimited period. It would not permit the making
of further reproductions or their exchange with other
organizations.
Copyright Status of Ephemeral Recordings. A program reproduced in
an ephemeral recording made under section 112 in many cases will
constitute a motion picture, a sound recording, or some other kind
of derivative work, and will thus be potentially copyrightable
under section 103. In section 112(e) it is provided that ephemeral
recordings are not to be copyrightable as derivative works except
with the consent of the owners of the copyrighted material employed
in them.

AMENDMENTS
2002 - Subsecs. (f), (g). Pub. L. 107-273 added subsec. (f) and
redesignated former subsec. (f) as (g).
1999 - Subsec. (e)(2). Pub. L. 106-44, Sec. 1(b)(1), redesignated
par. (3) as (2).
Subsec. (e)(3). Pub. L. 106-44, Sec. 1(b)(1), (2), redesignated
par. (4) as (3) and substituted "(1)" for "(2)" in first sentence.
Former par. (3) redesignated (2).
Subsec. (e)(4). Pub. L. 106-44, Sec. 1(b)(1), (3), redesignated
par. (5) as (4), substituted "(2)" for "(3)", "(3)" for "(4)", and
"(5)" for "(6)" in first sentence, and substituted "(2) and (3)"
for "(3) and (4)" in penultimate sentence of concluding provisions.
Former par. (4) redesignated (3).
Subsec. (e)(5). Pub. L. 106-44, Sec. 1(b)(1), redesignated par.
(6) as (5). Former par. (5) redesignated (4).
Subsec. (e)(6). Pub. L. 106-44, Sec. 1(b)(1), (4), redesignated
par. (7) as (6), substituted "(3)" for "(4)" wherever appearing,
and substituted "(4)" for "(5)" in two places. Former par. (6)
redesignated (5).
Subsec. (e)(7) to (10). Pub. L. 106-44, Sec. 1(b)(1),
redesignated pars. (8) to (10) as (7) to (9), respectively. Former
par. (7) redesignated (6).
1998 - Subsec. (a). Pub. L. 105-304, Sec. 402, designated
existing provisions as par. (1), in introductory provisions
inserted ", including a statutory license under section 114(f),"
after "under a license" and "or for a transmitting organization
that is a broadcast radio or television station licensed as such by
the Federal Communications Commission and that makes a broadcast
transmission of a performance of a sound recording in a digital
format on a nonsubscription basis," after "114(a),", redesignated
former pars. (1) to (3) as subpars. (A) to (C), respectively, and
added par. (2).
Subsecs. (e), (f). Pub. L. 105-304, Sec. 405(b), added subsec.
(e) and redesignated former subsec. (e) as (f).
CONSTRUCTION OF 1998 AMENDMENT
Pub. L. 105-304, title IV, Sec. 405(c), Oct. 28, 1998, 112 Stat.
2902, provided that: "Nothing in this section [amending this
section and sections 114 and 801 to 803 of this title and enacting
provisions set out as notes under section 114 of this title] or the
amendments made by this section shall affect the scope of section
112(a) of title 17, United States Code, or the entitlement of any
person to an exemption thereunder."

Last modified: April 19, 2006