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1 8108. Limitations on exclusive rights: Reproduction by libraries 2

and archives 3 (a) Notwithstanding the provisions of section 106, it is not an in4 fringement of copyright for a library or archives, or any of its emỐ ployees acting within the scope of their employment, to reproduce no 6 more than one copy or phonorecord of a work, or distribute such copy 7 or phonorecord, under the conditions specified by this section and if: 8

(1) The reproduction or distribution is made without any pur9 pose of direct or indirect commercial advantage; and 10 (2) The collections of the library or archives are (i) open to the 11 public, or (ii) available not only to researchers affiliated with the 12 library or archives or with the institution of which it is a part, but

also to other persons doing research in a specialized field, 14 (b) The rights of reproduction and distribution under this section 15 apply to a copy or phonorecord of an unpublished work duplicated in 16 facsimile form solely for purposes of preservation and security or for 17 deposit for research use in another library or archives of the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 24 a reasonable effort, determined that an unused replacement cannot be 25 obtained at a normal price from commonly-known trade sources in the 26 United States, including authorized reproducing services. 27

(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 32 library or archives, if: 33 (1) The user has established to the satisfaction of the library 34 or archives that an unused copy cannot be obtained at a normal 35 price from commonly known trade sources in the United States, 36 including authorized reproducing services; 37 (2) The copy becomes the property of the user, and the library 38 or archives has had no notice that the copy would be used for any 39 purpose other than private study, scholarship, or research; and 40 (3) The library or archives displays prominently, at the place Now today and tomorrow we will hear testimony of witnesses on selected copyright issues, concerning which there have been developments since the previous hearings. There are a number of other controversial issues in this legislation and these will be further reviewed by the subcommittee as the bill is processed.

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Mr. Counsel, do you have any statement before we proceed?

Mr. BRENNAN. Yes, I do, Mr. Chairman. I request at this time that the notice of this hearing to be followed by the text of the bill, S. 1361, be printed in the record.

Senator MOCLELLAN. The notice of the hearing and a copy of S. 1361, the bill under consideration will be printed in the record at this point.

[The notice of the hearing and a copy of the bill, S. 1361, follow:]

(Congressional Record-Senate, July 10, 1973)

NOTICE OF HEARINGS ON S. 1361

Mr. McCLELLAN. Mr. President, as chairman of the Subcommittee on Patents, Trademarks and Copyrights I previously announced that the subcommittee would reopen the hearings on legislation for the general revision of the copyright law, S. 1361, to receive additional testimony on selected issues.

The dates and issues of the hearings are as follows: July 31, morning-library photocopying; July 31, afternoon-general educational exemptions; August 1, morning-cable television royalty schedule; August 1, afternoon—carriage of sporting events by cable television, and August 1, afternoon—religious broadcasting exemption.

The hearings will commence each day at 10 a.m. and 2 p.m. in room 1114 of the Dirksen Senate Office Building.

The subcommittee will allocate time to the principal representatives of the various points of view on each issue. Those who cannot be accommodated during the hearings may submit written statements for inclusion in the record.

Those who desire additional information should contact the staff of the subcommittee at 225-2268.

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ons on exclusive rights: Exemption of certain perlances and displays canding the provisions of section 106, the following are not ents of copyright: -) performance or display of a work by instructors or pupils che course of face-to-face teaching activities of a nonprofit eduational institution, in a classroom or similar place devoted to instruction, unless, in the case of a motion picture or other audiovisual work, the performance, or the display of individual images, is given by means of a copy that was not lawfully made under this title and that the person responsible for the performance knew or had reason to believe was not lawfully made;

(2) performance of a nondramatic literary or musical work or of a sound recording, or display of a work, by or in the course of a transmission, if:

(A) the performance or display is a regular part of the systematic instructional activities of a governmental body or a nonprofit educational institution; and

(B) the performance or display is directly related and of material assistance to the teaching content of the transmission; and (C) the transmission is made primarily for:

(i) reception in classrooms or similar places normally devoted to instruction, or

(ii) reception by persons to whom the transmission is directed because their disabilities or other special circumstances prevent their attendance in classrooms or similar places normally devoted to instruction, or

(iii) reception by officers or employees of governmental bodies as a part of their official duties or employ

ment; (3) performance of a nondramatic literary or musical work or of a dramatico-musical work of a religious nature, or of a sound recording, or display of a work, in the course of services at a place of worship or other religious assembly;

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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

(ii) 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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8 111. Limitations on exclusive rights: Secondary transmissions 2 (a) CERTAIN SECONDARY TRANSMISSIONS EXEMPTED.-The second3

ary transmission of a primary transmission embodying a performance 4

or display of a work is not an infringement of copyright if: 5

(1) the secondary transmission is not made by a cable system, 6

and consists entirely of the relaying, by the management of a 7

hotel, apartment house, or similar establishment, of signals trans8

mitted by a broadcast station licensed by the Federal Communica9

tions Commission, within the local service area of such station, to 10

the private lodgings of guests or residents of such establishment, 11

and no direct charge is made to see or hear the secondary trans12

mission; or 13

(2) the secondary transmission is made solely for the purpose 14 and under the conditions specified by clause (2) of section 110; or 15

(3) the secondary transmission is made by a common, contract, 16

or special carrier who has no direct or indirect control over the con17 tent or selection of the primary transmission or over the particu18 lar recipients of the secondary transmission, and whose activities 19 with respect to the secondary transmission consist solely of pro20 viding wires, cables, or other communications channels for the use 21 of others: Provided, That the provisions of this clause extend 22 only to the activities of said carrier with respect to secondary 23 transmissions and do not exempt from liability the activities of 24 others with respect to their own primary or secondary transmis25

sion; or 26

(4) the secondary transmission is made by a governmental 27 body, or other nonprofit organization, without any purpose of di28 rect or indirect commercial advantage, and without charge to the 29 recipients of the secondary transmission other than assessments 30 necessary to defray the actual and reasonable costs of maintaining

and operating the secondary transmission service. 32

(b) SECONDARY TRANSMISSION OF PRIMARY TRANSMISSION TO CON33

TROLLED GROUP.—Notwithstanding the provisions of subsections (a) 34 and (c), the secondary transmission to the public of a primary trans35

mission embodying a performance or display of a work is actionable as 36

an act of infringement under section 501, and is fully subject to the 37 remedies provided by sections 502 through 506, if the primary trans38 mission is not made for reception by the public at large but is con39

trolled and limited to reception by particular members of the public.

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