Copyrights - 17 USC Section 118

01/19/04

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).

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.

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.

Last modified: April 19, 2006