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1 Federal Communications Commission or any other governmental 2 agency or instrumentality shall not issue or enforce any order, notice, 3 rule, or regulation requiring a cable system to obtain authority of the 4 copyright owner as a condition for making any secondary transmis5 sion, or prohibiting a cable system from making secondary trans6 missions within an area where such secondary transmissions are per7 missible under the compulsory licensing provisions of subsection (c). 8 However, nothing in this section shall be construed to preempt the 9 authority of the Federal Communications Commission, with respect 10 to a cable system whose reference point is within a United States 11 television market 12 (A) to prevent the cable system from further transmitting a 13 primary transmission made by a television broadcast station, 14 whose local service area is outside the market, on the same day 15 that another station licensed by the Commission, whose local serv16 ice area is within the market, transmits the same transmission 17 program; 18 (B) to compel the cable system to make secondary transmis19 sions of primary transmissions by television broadcast stations 20 licensed by the Commission, whose local service area is within the 21 market; and 22 (C) to regulate the operations of a cable system otherwise than 23 as provided by this section. 24 (2) Notwithstanding the provisions of clause (1), the Federal Com25 munications Commission shall have the responsibility to establish vari26 ous criteria and definitions as provided by subsection (f), and shall 27 have the authority in the public interest, and in accordance with re28 quirements that the Commission shall prescribe by regulation, to do 29 the following: 30

(A) to permit a cable system to substitute, for the signal of the 31 station specified in the compulsory licensing provisions of para32 graph (ii) of subsection (c) (2) (A), a more distant signal; 33 (B) to increase the number of signals of stations specified 34 in the compulsory licensing provisions of clause (3) of subsec35 tion (c) as comprising adequate television service for a United 36 States television market; and 37 (C) to permit a cable system that is required to delete a signal 38 under the provisions of clause (4) of subsection (c), to substitute 39 the signal of another station of the same kind and within the

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1 quantitative limits specified by the compulsory licensing provi2 sions of clause (3) of subsection (c). 3 (f) DEFINITIONS. 4 (1) As used in this section, the following terms and their variant 5 forms mean the following: 6

(A) A "primary transmission” is a transmission made to the 7 public by the transmitting facility whose signals are being 8 received and further transmitted by the secondary transmission 9 service, regardless of where or when the performance or display 10 was first transmitted. 11

(B) A "secondary transmission” is the further transmitting 12 of a primary transmission simultaneously with the primary 18 transmission. 14

(C) A “cable system" is a facility operated for purposes of com16 mercial advantage that receives signals transmitted by one or more 16 television broadcast stations licensed by the Federal Communica17 tions Commission and simultaneously makes secondary transmis18 sions of such signals by wires, cables, or other communications 19 channels to subscribing members of the public who pay for such 20 service. 21 (2) As used in this section, the following terms and their variant 22 forms have the meanings given to them in definitions that the Federal 23 Communications Commission shall publish in the Federal Register 24 during July, 1974, and annually in July thereafter. Said definitions 25 shall have binding effect upon the 1st day of January of the year fol26 lowing their publication; they shall be based upon the general criteria 27 provided by this clause, and upon specific criteria adopted by the Com28 mission in the public interest and in the light of changing industry 29 practices and communications technology. Annual publication of the 30 definitions shall be accompanied by publication of lists specifying the 31 reference points for all cable systems in the United States, the numeri32 cal rank of all United States television markets, and all network sta33 tions, independent commercial stations, and noncommercial educa34 tional stations, together with maps showing the specific geographical 35 location of all said reference points, the area encompassed by all said 36 United States television markets, and the local service areas of all said 37 stations. 38

(A) The “reference point” of a cable system is the longitude and 39 latitude, expressed in degrees, minutes, and seconds, of a point repre40 senting the effective center of operations of a cable system, taking into

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account factors of geography, demography, and concentration of 2

subscribers. 3 (B) A “United States television market” is a community or group

of communities incorporating the local service areas of one or more

television broadcast stations licensed by the Federal Communications 6 Commission. The numerical ranking of such a market shall depend 7 primarily upon the number of viewers in the market receiving tele8 vision signals, but may be affected by other factors including the num9 ber of signals available in the market, concentration of population, 10 industrial development, and level of income. 11 (C) The "local service area” of a broadcast station comprises the 12 entire geographic area within the radius that the station's signal is 13 expected to reach effectively under normal conditions, including any 14 parts of the area within that radius that its signal fails to reach effec15 tively because of terrain, structures, or other physical or technical 16 barriers. Where the local service area of one station overlaps with that 17

of another, the overlapping area is considered within the local service 18 areas of both stations. 19 (D) A “network station" is a television broadcast station that is

owned or operated by, or affiliated with, one of the television networks 21 providing nationwide transmissions, and that transmits substantially 22 all of the programming supplied by such network. 23 (E) An "independent commercial station” is a television broadcast

station operated for commercial advantage, other than a network 25 station. 26 (F) A “noncommercial educational station” is a station operated 27 without any direct or indirect purpose of commercial advantage, whose 28 programming consists preponderantly of instructional, educational, 29 or cultural subject matter. 30 8112. Limitations on exclusive rights: Ephemeral recordings 31 (a) Notwithstanding the provisions of section 106, and except in the 32 case of a motion picture or other audiovisual work, it is not an infringe33 ment of copyright for a transmitting organization entitled to transmit 34 to the public a performance or display of a work, under a license or 35 transfer of the copyright or under the limitations on exclusive rights 36 in sound recordings specified by section 114(a), to make no more than 37

one copy or phonorecord of a particular transmission program em38 bodying the performance or display, if39

(1) the copy or phonorecord is retained and used solely by the

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1 transmitting organization that made it, and no further copies or 2 phonorecords are reproduced from it; and 3 (2) the copy or phonorecord is used solely for the transmitting 4 organization's own transmissions within its local service area, or 5 for purposes of archival preservation or security; and 6 (3) unless preserved exclusively for archival purposes, the copy 7 or phonorecord is destroyed within six months from the date the 8 transmission program was first transmitted to the public. 9 (b) Notwithstanding the provisions of section 106, it is not an in10 fringement of copyright for a governmental body or other nonprofit 11 organization entitled to transmit a performance or display of a work, 12 under section 110(2) or under the limitations on exclusive rights in 13 sound recordings specified by section 114(a), to make no more than 14 twelve copies or phonorecords of a particular transmission program 15 embodying the performance or display, if16 (1) no further copies or phonorecords are reproduced from the 17 copies or phonorecords made under this clause; and 18 (2) except for one copy or phonorecord that may be preserved 19 exclusively for archival purposes, the copies or phonorecords are 20 destroyed within five years from the date the transmission pro21 gram was first transmitted to the public. 22 (c) Notwithstanding the provisions of section 106, it is not an in23 fringement of copyright for a governmental body or other nonprofit 24 organization to make for distribution no more than one copy or phono25 record for each transmitting organization specified in clause (2) of this 26 subsection of a particular transmission program embodying a perform27 ance of a nondramatic musical work of a religious nature, or of a sound 28 recording, if29

(1) there is no direct or indirect charge for making or dis30 tributing any such copies or phonorecords; and 31 (2) none of such copies or phonorecords is used for any per32 formance other than a single transmission to the public by a trans33 mitting organization entitled to transmit to the public a perform34 ance of the work under a license or transfer of the copyright; 35 and 36 (3) except for one copy or phonorecord that may be preserved 37 exclusively for archival purposes, the copies or phonorecords are 38 all destroyed within one year from the date the transmission pro39 gram was first transmitted to the public. 40 (d) The transmission program embodied in a copy or phonorecord

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made under this section is not subject to protection as a derivative
work under this title except with the express consent of the owners of
copyright in the pre-existing works employed in the program.
8 113. Scope of exclusive rights in pictorial, graphic, and sculp-

tural works
(a) Subject to the provisions of clauses (1) and (2) of this sub-
section, the exclusive right to reproduce a copyrighted pictorial,
graphic, or sculptural work in copies under section 106 includes the
right to reproduce the work in or on any kind of article, whether use-
ful or otherwise.

(1) This title does not afford, to the owner of copyright in a work that portrays a useful article as such, any greater or lesser rights with respect to the making, distribution, or display of the useful article so portrayed than those afforded to such works under the law, whether title 17 or the common law or statutes of a State, in effect on December 31, 1974, as held applicable and construed by a court in an action brought under this title.

(2) In the case of a work lawfully reproduced in useful articles that have been offered for sale or other distribution to the public, copyright does not include any right to prevent the making, distribution, or display of pictures or photographs of such articles in connection with advertisements or commentaries related to the distribution or display of such articles, or in connection with news

reports. (b) When a pictorial, graphic, or sculptural work in which copyright subsists under this title is utilized in an original ornamental design of a useful article, by the copyright proprietor or under an express license from him, the design shall be eligible for protection under the provisions of title III of this Act.

(c) Protection under this title of a work in which copyright subsists shall terminate with respect to its utilization in useful articles whenover the copyright proprietor has obtained registration of an ornamental design of a useful article embodying said work under the provisions of title III of this Act. Unless and until the copyright proprietor has obtained such registration, the copyright pictorial, graphic, or sculptural work shall continue in all respects to be covered by and subject to the protection afforded by the copyright subsisting under this title. Nothing in this section shall be deemed to create any additional rights or protection under this title.

(a) Nothing in this section shall affect any right or remedy held

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