United States Code/Title 17/Chapter 1/Section 109
From Free media library
(Redirected from U.S. Code - Title 17 - Section 109)
[edit]
Sec. 109. Limitations on exclusive rights: Effect of transfer of particular copy or phonorecord
- (a) Notwithstanding the provisions of section 106(3), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord. Notwithstanding the preceding sentence, copies or phonorecords of works subject to restored copyright under section 104A that are manufactured before the date of restoration of copyright or, with respect to reliance parties, before publication or service of notice under section 104A(e), may be sold or otherwise disposed of without the authorization of the owner of the restored copyright for purposes of direct or indirect commercial advantage only during the 12-month period beginning on -
- (1) the date of the publication in the Federal Register of the notice of intent filed with the Copyright Office under section 104A(d)(2)(A), or
- (2) the date of the receipt of actual notice served under section 104A(d)(2)(B),
- whichever occurs first.
- (b)(1)(A) Notwithstanding the provisions of subsection (a), unless authorized by the owners of copyright in the sound recording or the owner of copyright in a computer program (including any tape, disk, or other medium embodying such program), and in the case of a sound recording in the musical works embodied therein, neither the owner of a particular phonorecord nor any person in possession of a particular copy of a computer program (including any tape, disk, or other medium embodying such program), may, for the purposes of direct or indirect commercial advantage, dispose of, or authorize the disposal of, the possession of that phonorecord or computer program (including any tape, disk, or other medium embodying such program) by rental, lease, or lending, or by any other act or practice in the nature of rental, lease, or lending. Nothing in the preceding sentence shall apply to the rental, lease, or lending of a phonorecord for nonprofit purposes by a nonprofit library or nonprofit educational institution. The transfer of possession of a lawfully made copy of a computer program by a nonprofit educational institution to another nonprofit educational institution or to faculty, staff, and students does not constitute rental, lease, or lending for direct or indirect commercial purposes under this subsection.
- (B) This subsection does not apply to -
- (i) a computer program which is embodied in a machine or product and which cannot be copied during the ordinary operation or use of the machine or product; or
- (ii) a computer program embodied in or used in conjunction with a limited purpose computer that is designed for playing video games and may be designed for other purposes.
- (C) Nothing in this subsection affects any provision of chapter 9 of this title.
- (B) This subsection does not apply to -
- (2)(A) Nothing in this subsection shall apply to the lending of a computer program for nonprofit purposes by a nonprofit library, if each copy of a computer program which is lent by such library has affixed to the packaging containing the program a warning of copyright in accordance with requirements that the Register of Copyrights shall prescribe by regulation.
- (B) Not later than three years after the date of the enactment of the Computer Software Rental Amendments Act of 1990, and at such times thereafter as the Register of Copyrights considers appropriate, the Register of Copyrights, after consultation with representatives of copyright owners and librarians, shall submit to the Congress a report stating whether this paragraph has achieved its intended purpose of maintaining the integrity of the copyright system while providing nonprofit libraries the capability to fulfill their function. Such report shall advise the Congress as to any information or recommendations that the Register of Copyrights considers necessary to carry out the purposes of this subsection.
- (3) Nothing in this subsection shall affect any provision of the antitrust laws. For purposes of the preceding sentence, "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.
- (4) Any person who distributes a phonorecord or a copy of a computer program (including any tape, disk, or other medium embodying such program) in violation of paragraph (1) is an infringer of copyright under section 501 of this title and is subject to the remedies set forth in sections 502, 503, 504, 505, and 509. Such violation shall not be a criminal offense under section 506 or cause such person to be subject to the criminal penalties set forth in section 2319 of title 18.
- (c) Notwithstanding the provisions of section 106(5), the owner of a particular copy lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to display that copy publicly, either directly or by the projection of no more than one image at a time, to viewers present at the place where the copy is located.
- (d) The privileges prescribed by subsections (a) and (c) do not, unless authorized by the copyright owner, extend to any person who has acquired possession of the copy or phonorecord from the copyright owner, by rental, lease, loan, or otherwise, without acquiring ownership of it.
- (e) Notwithstanding the provisions of sections 106(4) and 106(5), in the case of an electronic audiovisual game intended for use in coin-operated equipment, the owner of a particular copy of such a game lawfully made under this title, is entitled, without the authority of the copyright owner of the game, to publicly perform or display that game in coin-operated equipment, except that this subsection shall not apply to any work of authorship embodied in the audiovisual game if the copyright owner of the electronic audiovisual game is not also the copyright owner of the work of authorship.
-SOURCE-
(Pub. L. 94-553, title I, Sec. 101, Oct. 19, 1976, 90 Stat. 2548; Pub. L. 98-450, Sec. 2, Oct. 4, 1984, 98 Stat. 1727; Pub. L. 100-617, Sec. 2, Nov. 5, 1988, 102 Stat. 3194; Pub. L. 101-650, title VIII, Secs. 802, 803, Dec. 1, 1990, 104 Stat. 5134, 5135; Pub. L. 103-465, title V, Sec. 514(b), Dec. 8, 1994, 108 Stat. 4981; Pub. L. 105-80, Sec. 12(a)(5), Nov. 13, 1997, 111 Stat. 1534.)
-MISC1-
HISTORICAL AND REVISION NOTES
HOUSE REPORT NO. 94-1476
Effect on Further Disposition of Copy or Phonorecord. Section
109(a) restates and confirms the principle that, where the
copyright owner has transferred ownership of a particular copy or
phonorecord of a work, the person to whom the copy or phonorecord
is transferred is entitled to dispose of it by sale, rental, or any
other means. Under this principle, which has been established by
the court decisions and section 27 of the present law [section 27
of former title 17], the copyright owner's exclusive right of
public distribution would have no effect upon anyone who owns "a
particular copy or phonorecord lawfully made under this title" and
who wishes to transfer it to someone else or to destroy it.
Thus, for example, the outright sale of an authorized copy of a
book frees it from any copyright control over its resale price or
other conditions of its future disposition. A library that has
acquired ownership of a copy is entitled to lend it under any
conditions it chooses to impose. This does not mean that conditions
on future disposition of copies or phonorecords, imposed by a
contract between their buyer and seller, would be unenforceable
between the parties as a breach of contract, but it does mean that
they could not be enforced by an action for infringement of
copyright. Under section 202 however, the owner of the physical
copy or phonorecord cannot reproduce or perform the copyrighted
work publicly without the copyright owner's consent.
To come within the scope of section 109(a), a copy or phonorecord
must have been "lawfully made under this title," though not
necessarily with the copyright owner's authorization. For example,
any resale of an illegally "pirated" phonorecord would be an
infringement, but the disposition of a phonorecord legally made
under the compulsory licensing provisions of section 115 would not.
Effect on Display of Copy. Subsection (b) of section 109 deals
with the scope of the copyright owner's exclusive right to control
the public display of a particular "copy" of a work (including the
original or prototype copy in which the work was first fixed).
Assuming, for example, that a painter has sold the only copy of an
original work of art without restrictions, would it be possible for
him to restrain the new owner from displaying it publicly in
galleries, shop windows, on a projector, or on television?
Section 109(b) adopts the general principle that the lawful owner
of a copy of a work should be able to put his copy on public
display without the consent of the copyright owner. As in cases
arising under section 109(a), this does not mean that contractual
restrictions on display between a buyer and seller would be
unenforceable as a matter of contract law.
The exclusive right of public display granted by section 106(5)
would not apply where the owner of a copy wishes to show it
directly to the public, as in a gallery or display case, or
indirectly, as through an opaque projector. Where the copy itself
is intended for projection, as in the case of a photographic slide,
negative, or transparency, the public projection of a single image
would be permitted as long as the viewers are "present at the place
where the copy is located."
On the other hand, section 109(b) takes account of the
potentialities of the new communications media, notably television,
cable and optical transmission devices, and information storage and
retrieval devices, for replacing printed copies with visual images.
First of all, the public display of an image of a copyrighted work
would not be exempted from copyright control if the copy from which
the image was derived were outside the presence of the viewers. In
other words, the display of a visual image of a copyrighted work
would be an infringement if the image were transmitted by any
method (by closed or open circuit television, for example, or by a
computer system) from one place to members of the public located
elsewhere.
Moreover, the exemption would extend only to public displays that
are made "either directly or by the projection of no more than one
image at a time." Thus, even where the copy and the viewers are
located at the same place, the simultaneous projection of multiple
images of the work would not be exempted. For example, where each
person in a lecture hall is supplied with a separate viewing
apparatus, the copyright owner's permission would generally be
required in order to project an image of a work on each individual
screen at the same time.
The committee's intention is to preserve the traditional
privilege of the owner of a copy to display it directly, but to
place reasonable restrictions on the ability to display it
indirectly in such a way that the copyright owner's market for
reproduction and distribution of copies would be affected. Unless
it constitutes a fair use under section 107, or unless one of the
special provisions of section 110 or 111 is applicable, projection
of more than one image at a time, or transmission of an image to
the public over television or other communication channels, would
be an infringement for the same reasons that reproduction in copies
would be. The concept of "the place where the copy is located" is
generally intended to refer to a situation in which the viewers are
present in the same physical surroundings as the copy, even though
they cannot see the copy directly.
Effect of Mere Possession of Copy or Phonorecord. Subsection (c)
of section 109 qualifies the privileges specified in subsections
(a) and (b) by making clear that they do not apply to someone who
merely possesses a copy or phonorecord without having acquired
ownership of it. Acquisition of an object embodying a copyrighted
work by rental, lease, loan, or bailment carries with it no
privilege to dispose of the copy under section 109(a) or to display
it publicly under section 109(b). To cite a familiar example, a
person who has rented a print of a motion picture from the
copyright owner would have no right to rent it to someone else
without the owner's permission.
Burden of Proof in Infringement Actions. During the course of its
deliberations on this section, the Committee's attention was
directed to a recent court decision holding that the plaintiff in
an infringement action had the burden of establishing that the
allegedly infringing copies in the defendant's possession were not
lawfully made or acquired under section 27 of the present law
[section 27 of former title 17]. American International Pictures,
Inc. v. Foreman, 400 F.Supp. 928 (S.D.Alabama 1975). The Committee
believes that the court's decision, if followed, would place a
virtually impossible burden on copyright owners. The decision is
also inconsistent with the established legal principle that the
burden of proof should not be placed upon a litigant to establish
facts particularly within the knowledge of his adversary. The
defendant in such actions clearly has the particular knowledge of
how possession of the particular copy was acquired, and should have
the burden of providing this evidence to the court. It is the
intent of the Committee, therefore, that in an action to determine
whether a defendant is entitled to the privilege established by
section 109(a) and (b), the burden of proving whether a particular
copy was lawfully made or acquired should rest on the defendant.
-REFTEXT-
REFERENCES IN TEXT
The date of the enactment of the Computer Software Rental
Amendments Act of 1990, referred to in subsec. (b)(2)(B), is the
date of enactment of Pub. L. 101-650, which was approved Dec. 1,
1990.
The first section of the Clayton Act, referred to in subsec.
(b)(3), is classified to section 12 of Title 15, Commerce and
Trade.
Section 5 of the Federal Trade Commission Act, referred to in
subsec. (b)(3), is classified to section 45 of Title 15.
-MISC2-
AMENDMENTS
1997 - Subsec. (b)(2)(B). Pub. L. 105-80 substituted "Register of
Copyrights considers appropriate" for "Register of Copyright
considers appropriate".
1994 - Subsec. (a). Pub. L. 103-465 inserted at end
"Notwithstanding the preceding sentence, copies or phonorecords of
works subject to restored copyright under section 104A that are
manufactured before the date of restoration of copyright or, with
respect to reliance parties, before publication or service of
notice under section 104A(e), may be sold or otherwise disposed of
without the authorization of the owner of the restored copyright
for purposes of direct or indirect commercial advantage only during
the 12-month period beginning on -
"(1) the date of the publication in the Federal Register of the
notice of intent filed with the Copyright Office under section
104A(d)(2)(A), or
"(2) the date of the receipt of actual notice served under
section 104A(d)(2)(B),
whichever occurs first."
1990 - Subsec. (b)(1). Pub. L. 101-650, Sec. 802(2), added par.
(1) and struck out former par. (1) which read as follows:
"Notwithstanding the provisions of subsection (a), unless
authorized by the owners of copyright in the sound recording and in
the musical works embodied therein, the owner of a particular
phonorecord may not, for purposes of direct or indirect commercial
advantage, dispose of, or authorize the disposal of, the possession
of that phonorecord by rental, lease, or lending, or by any other
act or practice in the nature of rental, lease, or lending. Nothing
in the preceding sentence shall apply to the rental, lease, or
lending of a phonorecord for nonprofit purposes by a nonprofit
library or nonprofit educational institution."
Subsec. (b)(2), (3). Pub. L. 101-650, Sec. 802(1), (2), added
par. (2) and redesignated former pars. (2) and (3) as (3) and (4),
respectively.
Subsec. (b)(4). Pub. L. 101-650, Sec. 802(3), added par. (4) and
struck out former par. (4) which read as follows: "Any person who
distributes a phonorecord in violation of clause (1) is an
infringer of copyright under section 501 of this title and is
subject to the remedies set forth in sections 502, 503, 504, 505,
and 509. Such violation shall not be a criminal offense under
section 506 or cause such person to be subject to the criminal
penalties set forth in section 2319 of title 18."
Pub. L. 101-650, Sec. 802(1), redesignated par. (3) as (4).
Subsec. (e). Pub. L. 101-650, Sec. 803, added subsec. (e).
1988 - Subsec. (d). Pub. L. 100-617 substituted "(a) and (c)" for
"(a) and (b)" and "copyright" for "coyright".
1984 - Subsecs. (b) to (d). Pub. L. 98-450 added subsec. (b) and
redesignated existing subsecs. (b) and (c) as (c) and (d),
respectively.
EFFECTIVE DATE OF 1990 AMENDMENT
Section 804 of title VIII of Pub. L. 101-650, as amended by Pub.
L. 103-465, title V, Sec. 511, Dec. 8, 1994, 108 Stat. 4974,
provided that:
"(a) In General. - Subject to subsection (b), this title
[amending this section and enacting provisions set out as notes
under sections 101 and 205 of this title] and the amendments made
in section 802 [amending this section] shall take effect on the
date of the enactment of this Act [Dec. 1, 1990]. The amendment
made by section 803 [amending this section] shall take effect one
year after such date of enactment.
"(b) Prospective Application. - Section 109(b) of title 17,
United States Code, as amended by section 802 of this Act, shall
not affect the right of a person in possession of a particular copy
of a computer program, who acquired such copy before the date of
the enactment of this Act [Dec. 1, 1990], to dispose of the
possession of that copy on or after such date of enactment in any
manner permitted by section 109 of title 17, United States Code, as
in effect on the day before such date of enactment.
"(c) Termination. - The amendments made by section 803 shall not
apply to public performances or displays that occur on or after
October 1, 1995."
EFFECTIVE DATE OF 1984 AMENDMENT
Section 4 of Pub. L. 98-450, as amended by Pub. L. 100-617, Sec.
1, Nov. 5, 1988, 102 Stat. 3194; Pub. L. 103-182, title III, Sec.
332, Dec. 8, 1993, 107 Stat. 2114, provided that:
"(a) The amendments made by this Act [amending this section and
section 115 of this title and enacting provisions set out as a note
under section 101 of this title] shall take effect on the date of
the enactment of this Act [Oct. 4, 1984].
"(b) The provisions of section 109(b) of title 17, United States
Code, as added by section 2 of this Act, shall not affect the right
of an owner of a particular phonorecord of a sound recording, who
acquired such ownership before the date of the enactment of this
Act [Oct. 4, 1984], to dispose of the possession of that particular
phonorecord on or after such date of enactment in any manner
permitted by section 109 of title 17, United States Code, as in
effect on the day before the date of the enactment of this Act."
[Amendment by Pub. L. 103-182 to section 4 of Pub. L. 98-450, set
out above, effective on the date the North American Free Trade
Agreement enters into force with respect to the United States [Jan.
1, 1994], see section 335 of Pub. L. 103-182, set out as an
Effective Date of 1993 Amendment note under section 1052 of Title
15, Commerce and Trade.]
EVALUATION OF IMPACT OF COPYRIGHT LAW AND AMENDMENTS ON ELECTRONIC
COMMERCE AND TECHNOLOGICAL DEVELOPMENT
Pub. L. 105-304, title I, Sec. 104, Oct. 28, 1998, 112 Stat.
2876, provided that:
"(a) Evaluation by the Register of Copyrights and the Assistant
Secretary for Communications and Information. - The Register of
Copyrights and the Assistant Secretary for Communications and
Information of the Department of Commerce shall jointly evaluate -
"(1) the effects of the amendments made by this title [enacting
chapter 12 of this title and amending sections 101, 104, 104A,
411, and 507 of this title] and the development of electronic
commerce and associated technology on the operation of sections
109 and 117 of title 17, United States Code; and
"(2) the relationship between existing and emergent technology
and the operation of sections 109 and 117 of title 17, United
States Code.
"(b) Report to Congress. - The Register of Copyrights and the
Assistant Secretary for Communications and Information of the
Department of Commerce shall, not later than 24 months after the
date of the enactment of this Act [Oct. 28, 1998], submit to the
Congress a joint report on the evaluation conducted under
subsection (a), including any legislative recommendations the
Register and the Assistant Secretary may have."
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 104A, 106, 501, 511 of
this title; title 18 section 2319.