Chapter 1, Section 104A, Subsection (h) · 17 U.S.C. Chapter 1 — SUBJECT MATTER AND SCOPE OF COPYRIGHT

Contents

(h)For purposes of this section and section 109(a):

(1)The term “date of adherence or proclamation” means the earlier of the date on which a foreign nation which, as of the date the WTO Agreement enters into force with respect to the United States, is not a nation adhering to the Berne Convention or a WTO member country, becomes—

(A)a nation adhering to the Berne Convention;

(B)a WTO member country;

(C)a nation adhering to the WIPO Copyright Treaty;

(D)a nation adhering to the WIPO Performances and Phonograms Treaty; or

(E)subject to a Presidential proclamation under subsection (g).

(2)The “date of restoration” of a restored copyright is—

(A)January 1, 1996, if the source country of the restored work is a nation adhering to the Berne Convention or a WTO member country on such date, or

(B)the date of adherence or proclamation, in the case of any other source country of the restored work.

(3)The term “eligible country” means a nation, other than the United States, that—

(A)becomes a WTO member country after the date of the enactment of the Uruguay Round Agreements Act;

(B)on such date of enactment is, or after such date of enactment becomes, a nation adhering to the Berne Convention;

(C)adheres to the WIPO Copyright Treaty;

(D)adheres to the WIPO Performances and Phonograms Treaty; or

(E)after such date of enactment becomes subject to a proclamation under subsection (g).

(4)The term “reliance party” means any person who—

(A)with respect to a particular work, engages in acts, before the source country of that work becomes an eligible country, which would have violated section 106 if the restored work had been subject to copyright protection, and who, after the source country becomes an eligible country, continues to engage in such acts;

(B)before the source country of a particular work becomes an eligible country, makes or acquires 1 or more copies or phonorecords of that work; or

(C)as the result of the sale or other disposition of a derivative work covered under subsection (d)(3), or significant assets of a person described in subparagraph (A) or (B), is a successor, assignee, or licensee of that person.

(5)The term “restored copyright” means copyright in a restored work under this section.

(6)The term “restored work” means an original work of authorship that—

(A)is protected under subsection (a);

(B)is not in the public domain in its source country through expiration of term of protection;

(C)is in the public domain in the United States due to—

(i)noncompliance with formalities imposed at any time by United States copyright law, including failure of renewal, lack of proper notice, or failure to comply with any manufacturing requirements;

(ii)lack of subject matter protection in the case of sound recordings fixed before February 15, 1972; or

(iii)lack of national eligibility;

(D)has at least one author or rightholder who was, at the time the work was created, a national or domiciliary of an eligible country, and if published, was first published in an eligible country and not published in the United States during the 30-day period following publication in such eligible country; and

(E)if the source country for the work is an eligible country solely by virtue of its adherence to the WIPO Performances and Phonograms Treaty, is a sound recording.

(7)The term “rightholder” means the person—

(A)who, with respect to a sound recording, first fixes a sound recording with authorization, or

(B)who has acquired rights from the person described in subparagraph (A) by means of any conveyance or by operation of law.

(8)The “source country” of a restored work is—

(A)a nation other than the United States;

(B)in the case of an unpublished work—

(i)the eligible country in which the author or rightholder is a national or domiciliary, or, if a restored work has more than 1 author or rightholder, of which the majority of foreign authors or rightholders are nationals or domiciliaries; or

(ii)if the majority of authors or rightholders are not foreign, the nation other than the United States which has the most significant contacts with the work; and

(C)in the case of a published work—

(i)the eligible country in which the work is first published, or

(ii)if the restored work is published on the same day in 2 or more eligible countries, the eligible country which has the most significant contacts with the work.

United States Government work; public domain under 17 U.S.C. § 105.

Defined terms · 75

Show every defined term

accessible format
means an alternative manner or form that gives an eligible person access to the work when the copy or phonorecord in the accessible format is used exclusively by the eligible person to permit him or her to have access as feasibly and comfortably as a person without such disability as described in paragraph (3);
accrued interest
means interest accrued on accrued royalties, as described in subsection (d)(3)(H)(ii).
accrued royalties
means royalties accrued for the reproduction or distribution of a musical work (or share thereof) in a covered activity, calculated in accordance with the applicable royalty rate under this section.
administrative assessment
means the fee established pursuant to subsection (d)(7)(D).
antitrust laws
has the meaning given that term in the first section of the Clayton Act and includes section 5 of the Federal Trade Commission Act to the extent that section relates to unfair methods of competition.
artist payee
means a person, other than a person described in subparagraph (B), who owns the right to receive all or part of the receipts payable under paragraph (2)(D) with respect to a sound recording.
audit
means a royalty compliance examination to verify the accuracy of royalty payments, or the conduct of such an examination, as applicable.
authorized entity
means a nonprofit organization or a governmental agency that has a primary mission to provide specialized services relating to training, education, or adaptive reading or information access needs of blind or other persons with disabilities;
blanket license
means a compulsory license described in subsection (d)(1)(A) to engage in covered activities.
compilation
includes collective works.
copies
includes the material object, other than a phonorecord, in which the work is first fixed.
covered activity
means the activity of making a digital phonorecord delivery of a musical work, including in the form of a permanent download, limited download, or interactive stream, where such activity qualifies for a compulsory license under this section.
covered author
means a civilian member of the faculty of a covered institution.
covered institution
means the following:
covered work
means a literary work produced by a covered author in the course of employment at a covered institution for publication by a scholarly press or journal.
date of adherence or proclamation
means the earlier of the date on which a foreign nation which, as of the date the WTO Agreement enters into force with respect to the United States, is not a nation adhering to the Berne Convention or a WTO member country, becomes—
designated market area
means a designated market area, as determined by Nielsen Media Research and published in the 1999–2000 Nielsen Station Index Directory and Nielsen Station Index United States Television Household Estimates or any successor publication.
digital licensee coordinator
means the entity most recently designated pursuant to subsection (d)(5).
digital music provider
means a person (or persons operating under the authority of that person) that, with respect to a service engaged in covered activities—
digital phonorecord delivery
means each individual delivery of a phonorecord by digital transmission of a sound recording that results in a specifically identifiable reproduction by or for any transmission recipient of a phonorecord of that sound recording, regardless of whether the digital transmission is also a public performance of the sound recording or any musical work embodied therein, and includes a permanent download, a limited download, or an interactive stream.
distributor
means an entity that contracts to distribute secondary transmissions from a satellite carrier and, either as a single channel or in a package with other programming, provides the secondary transmission either directly to individual subscribers or indirectly through other program distribution entities in accordance with the provisions of this section.
eligible country
means a nation, other than the United States, that—
eligible person
means an individual who, regardless of any other disability—
enactment date
means the date of the enactment of the Musical Works Modernization Act.
financial gain
includes receipt, or expectation of receipt, of anything of value, including the receipt of other copyrighted works.
good quality satellite signal
has the meaning given such term under section 342(e)(2) of Communications 4 Act of 1934.
good-faith administration
means administration in a manner that is not grossly negligent.
individual download license
means a compulsory license obtained by a record company to make and distribute, or authorize the making and distribution of, permanent downloads embodying a specific individual musical work.
interactive stream
means a digital transmission of a sound recording of a musical work in the form of a stream, where the performance of the sound recording by means of such transmission is not exempt under section 114(d)(1) and does not in itself, or as a result of a program in which it is included, qualify for statutory licensing under section 114(d)(2).
license availability date
means January 1 following the expiration of the 2-year period beginning on the enactment date.
limited download
means a digital transmission of a sound recording of a musical work in the form of a download, where such sound recording is accessible for listening only for a limited amount of time or specified number of times.
local market
has the meaning given such term under section 122(j).
local-into-local service to all DMAs
has the meaning given such term in subsection (f)(7).
low power television station
means a low power TV station as defined in section 74.701(f) of title 47, Code of Federal Regulations, as in effect on June 1, 2004.
Marrakesh Treaty
means the Marrakesh Treaty to Facilitate Access to Published Works by Visually Impaired Persons and Persons with Print Disabilities concluded at Marrakesh, Morocco, on June 28, 2013.
mechanical licensing collective
means the entity most recently designated as such by the Register of Copyrights under subsection (d)(3).
mechanical licensing collective budget
means a statement of the financial position of the mechanical licensing collective for a fiscal year or quarter thereof based on estimates of expenditures during the period and proposals for financing those expenditures, including a calculation of the collective total costs.
motion picture exhibition facility
means a movie theater, screening room, or other venue that is being used primarily for the exhibition of a copyrighted motion picture, if such exhibition is open to the public or is made to an assembled group of viewers outside of a normal circle of a family and its social acquaintances.
multicast stream
means a digital stream containing programming and program-related material affiliated with a television network, other than the primary stream.
musical works database
means the database described in subsection (d)(3)(E).
network station
means— except that the term does not include the signal of the Alaska Rural Communications Service, or any successor entity to that service.
non-network station
means a television station, other than a network station, licensed by the Federal Communications Commission, that is secondarily transmitted by a satellite carrier.
noncommercial educational broadcast station
means a television broadcast station that is a noncommercial educational broadcast station as defined in section 397 of the Communications Act of 1934, as in effect on the date of the enactment of the Satellite Television Extension and Localism Act of 2010.
noncommercial webcaster
means a webcaster that—
nonprofit
means a nonprofit created or organized in a State.
notice of license
means a notice from a digital music provider provided under subsection (d)(2)(A) for purposes of obtaining a blanket license.
notice of nonblanket activity
means a notice from a significant nonblanket licensee provided under subsection (d)(6)(A) for purposes of notifying the mechanical licensing collective that the licensee has been engaging in covered activities.
permanent download
means a digital transmission of a sound recording of a musical work in the form of a download, where such sound recording is accessible for listening without restriction as to the amount of time or number of times it may be accessed.
phonorecords
includes the material object in which the sounds are first fixed.
primary network station
means a network station that broadcasts or rebroadcasts the basic programming service of a particular national network.
primary stream
means—
primary transmission
has the meaning given that term in section 111(f) of this title.
print instructional materials
has the meaning given under section 674(e)(3)(C) of the Individuals with Disabilities Education Act.
private home viewing
means the viewing, for private use in a household by means of satellite reception equipment that is operated by an individual in that household and that serves only such household, of a secondary transmission delivered by a satellite carrier of a primary transmission of a television station licensed by the Federal Communications Commission.
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 (c).
publicly
means— (1) to perform or display it 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;
qualified auditor
means an independent, certified public accountant with experience performing music royalty audits.
record company
means an entity that invests in, produces, and markets sound recordings of musical works, and distributes such sound recordings for remuneration through multiple sales channels, including a corporate affiliate of such an entity engaged in distribution of sound recordings.
reliance party
means any person who—
report of usage
means a report reflecting an entity’s usage of musical works in covered activities described in subsection (d)(4)(A).
required matching efforts
means efforts to identify and locate copyright owners of musical works as described in subsection (d)(10)(B)(i).
restored copyright
means copyright in a restored work under this section.
restored work
means an original work of authorship that—
rightholder
means the person—
satellite carrier
means an entity that uses the facilities of a satellite or satellite service licensed by the Federal Communications Commission and operates in the Fixed-Satellite Service under part 25 of title 47, Code of Federal Regulations, or the Direct Broadcast Satellite Service under part 100 of title 47, Code of Federal Regulations, to establish and operate a channel of communications for point-to-multipoint distribution of television station signals, and that owns or leases a capacity or service on a satellite in order to provide such point-to-multipoint distribution, except to the extent that such entity provides such distribution pursuant to tariff under the Communications Act of 1934, other than for private home viewing pursuant to this section.
secondary transmission
has the meaning given that term in section 111(f) of this title.
short market
means a local market in which programming of one or more of the four most widely viewed television networks nationwide is not offered on either the primary stream or multicast stream transmitted by any network station in that market or is temporarily or permanently unavailable as a result of an act of god 2 or other force majeure event beyond the control of the carrier.
songwriter
means the author of all or part of a musical work, including a composer or lyricist.
State
means each State of the United States, the District of Columbia, and each territory or possession of the United States.
subscribe
means to elect to become a subscriber.
subscriber
means a person or entity that receives a secondary transmission service from a satellite carrier and pays a fee for the service, directly or indirectly, to the satellite carrier or to a distributor.
unclaimed accrued royalties
means accrued royalties eligible for distribution under subsection (d)(3)(J).
videotape
means the reproduction of the images and sounds of a program or programs broadcast by a television broadcast station licensed by the Federal Communications Commission, regardless of the nature of the material objects, such as tapes or films, in which the reproduction is embodied.
voluntary license
means a license for use of a musical work (or share thereof) other than a compulsory license obtained under this section.
webcaster
means a person or entity that has obtained a compulsory license under section 112 or 114 and the implementing regulations therefor.