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§108. Limitations on exclusive rights: Reproduction by libraries

and archives

(a) Notwithstanding the provisions of section 106, it is not an in4 fringement of copyright for a library or archives, or any of its employees acting within the scope of their employment, to reproduce no more than one copy or phonorecord of a work, or distribute such copy or phonorecord, under the conditions specified by this section and if: (1) The reproduction or distribution is made without any purpose of direct or indirect commercial advantage; and

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(2) The collections of the library or archives are (i) open to the public, or (ii) available not only to researchers affiliated with the library or archives or with the institution of which it is a part, but also to other persons doing research in a specialized field,

(b) The rights of reproduction and distribution under this section 15 apply to a copy or phonorecord of an unpublished work duplicated in facsimile form solely for purposes of preservation and security or for 17 deposit for research use in another library or archives of the type de18 scribed by clause (2) of subsection (a), if the copy or phonorecord 19 reproduced is currently in the collections of the library or archives. 20 (c) The right of reproduction under this section applies to a copy 21 or phonorecord of a published work duplicated in facsimile form solely 22 for the purpose of replacement of a copy or phonorecord that is dam23 aged, deteriorating, lost, or stolen, if the library or archives has, after a reasonable effort, determined that an unused replacement cannot be 25 obtained at a normal price from commonly-known trade sources in the United States, including authorized reproducing services.

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(d) The rights of reproduction and distribution under this section 28 apply to a copy of a work, other than a musical work, a pictorial, 29 graphic or sculptural work, or a motion picture or other audio-visual 30 work, made at the request of a user of the collections of the library or 31 archives, including a user who makes his request through another library or archives, if:

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(1) The user has established to the satisfaction of the library or archives that an unused copy cannot be obtained at a normal price from commonly known trade sources in the United States, including authorized reproducing services;

(2) The copy becomes the property of the user, and the library or archives has had no notice that the copy would be used for any purpose other than private study, scholarship, or research; and (3) The library or archives displays prominently, at the place

20-344 O-73-2

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(4) performance of a nondramatic literary or musical work or of a sound recording, otherwise than in a transmission to the public, without any purpose of direct or indirect commercial advantage and without payment of any fee or other compensation for the performance to any of its performers, promoters, or organizers, if:

(A) there is no direct or indirect admission charge, or (B) the proceeds, after deducting the reasonable costs of producing the performance, are used exclusively for educational, religious, or charitable purposes and not for private financial gain, except where the copyright owner has served notice of his objections to the performance under the following conditions:

(i) The notice shall be in writing and signed by the copyright owner or his duly authorized agent; and

(ii) The notice shall be served on the person responsible for the performance at least seven days before the date of the performance, and shall state the reasons for his objections; and

(iii) The notice shall comply, in form, content, and manner of service, with requirements that the Register of Copyrights shall prescribe by regulation;

(5) communication of a transmission embodying a performance or display of a work by the public reception of the transmission on a single receiving apparatus of a kind commonly used in private homes, unless:

(A) a direct charge is made to see or hear the transmission; or

(B) the transmission thus received is further transmitted to the public;

(6) performance of a nondramatic musical work or of a sound recording in the course of an annual agricultural or horticultural fair or exhibition conducted by a governmental body or a nonprofit agricultural or horticultural organization;

(7) performance of a nondramatic musical work or of a sound recording by a vending establishment open to the public at large without any direct or indirect admission charge, where the sole purpose of the performance is to promote the retail sale of copies or phonorecords of the work and the performance is not transmitted beyond the place where the establishment is located.

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§ 111. Limitations on exclusive rights: Secondary transmissions
(a) CERTAIN SECONDARY TRANSMISSIONS EXEMPTED.-The second-
ary transmission of a primary transmission embodying a performance
or display of a work is not an infringement of copyright if:

(1) the secondary transmission is not made by a cable system,
and consists entirely of the relaying, by the management of a
hotel, apartment house, or similar establishment, of signals trans-
mitted by a broadcast station licensed by the Federal Communica-
tions Commission, within the local service area of such station, to
the private lodgings of guests or residents of such establishment,
and no direct charge is made to see or hear the secondary trans-
mission; or

(2) the secondary transmission is made solely for the purpose
and under the conditions specified by clause (2) of section 110; or
(3) the secondary transmission is made by a common, contract,
or special carrier who has no direct or indirect control over the con-
tent or selection of the primary transmission or over the particu-
lar recipients of the secondary transmission, and whose activities
with respect to the secondary transmission consist solely of pro-
viding wires, cables, or other communications channels for the use
of others: Provided, That the provisions of this clause extend
only to the activities of said carrier with respect to secondary
transmissions and do not exempt from liability the activities of
others with respect to their own primary or secondary transmis-
sion; or

(4) the secondary transmission is made by a governmental
body, or other nonprofit organization, without any purpose of di-
rect or indirect commercial advantage, and without charge to the
recipients of the secondary transmission other than assessments
necessary to defray the actual and reasonable costs of maintaining
and operating the secondary transmission service.

(b) SECONDARY TRANSMISSION OF PRIMARY TRANSMISSION TO CON-
TROLLED GROUP.-Notwithstanding the provisions of subsections (a)
and (c), the secondary transmission to the public of a primary trans-
mission embodying a performance or display of a work is actionable as
an act of infringement under section 501, and is fully subject to the
remedies provided by sections 502 through 506, if the primary trans-
mission is not made for reception by the public at large but is con-
trolled and limited to reception by particular members of the public.

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(4) performance of a nondramatic literary or musical work or of a sound recording, otherwise than in a transmission to the public, without any purpose of direct or indirect commercial advantage and without payment of any fee or other compensation for the performance to any of its performers, promoters, or organizers, if:

(A) there is no direct or indirect admission charge, or

(B) the proceeds, after deducting the reasonable costs of producing the performance, are used exclusively for educational, religious, or charitable purposes and not for private financial gain, except where the copyright owner has served notice of his objections to the performance under the following conditions:

(i) The notice shall be in writing and signed by the copyright owner or his duly authorized agent; and

(ii) The notice shall be served on the person responsible for the performance at least seven days before the date of the performance, and shall state the reasons for his objections; and

(iii) The notice shall comply, in form, content, and manner of service, with requirements that the Register of Copyrights shall prescribe by regulation;

(5) communication of a transmission embodying a performance or display of a work by the public reception of the transmission on a single receiving apparatus of a kind commonly used in private homes, unless:

(A) a direct charge is made to see or hear the transmission; or

(B) the transmission thus received is further transmitted to the public;

(6) performance of a nondramatic musical work or of a sound recording in the course of an annual agricultural or horticultural fair or exhibition conducted by a governmental body or a nonprofit agricultural or horticultural organization;

(7) performance of a nondramatic musical work or of a sound recording by a vending establishment open to the public at large without any direct or indirect admission charge, where the sole purpose of the performance is to promote the retail sale of copies or phonorecords of the work and the performance is not transmitted beyond the place where the establishment is located.

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the cable system or its predecessor in title had, before January 1, 1971, in accordance with the applicable rules of the Federal Communications Commission, made regular secondary transmissions of the transmissions of the primary transmitter or its predecessor in title. And provided that such regular secondary transmissions shall be exempt from the requirements of clauses (4) (A) and (4) (B) of subsection (c).

(3) For the purposes of this subsection, "adequate television serv9 ice" within a United States television market is defined according to 10 the numerical rank of the market and the number and type of those 11 operating broadcast stations licensed by the Federal Communications 12 Commission whose local service areas are within that market. Con13 struction permits shall not be included in any computation for this 14 purpose.

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(A) In markets 1 through 50, adequate television service comprises the network stations transmitting the programs of all the television networks providing national transmissions, three independent commercial stations, and one noncommercial educational station.

(B) In markets 51 and below, adequate television service comprises the network stations transmitting the programs of all the television networks providing national transmissions, two independent commercial stations, and one noncommercial educational station.

25 (4) Subject to the provisions of subsections (a) and (b) and of 26 clause (1) of this subsection, but notwithstanding the provisions of 27 clause (2) of this subsection, the secondary transmission to the public 28 by a cable system of a primary transmission made by a broadcast 29 station licensed by the Federal Communications Commission and 30 embodying a performance or display of a work is actionable as an 31 act of infringement under section 501, and is fully subject to the 32 remedies provided by sections 502 through 506, in the following

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cases:

(A) Where the cable system, at least one month before the date of the secondary transmission, has not recorded the notice specified by subsection (d); or

(B) Where the reference point of the cable system falls within a circle defined by a radius of thirty-five air miles, or within a radius as subsequently determined by the Federal Communications Commission, after notice and public hearings, from the cen

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