
From the U.S. Code Online via GPO Access
[wais.access.gpo.gov]
[Laws in effect as of January 2, 2001]
[Document not affected by Public Laws enacted between
  January 2, 2001 and January 28, 2002]
[CITE: 17USC110]

 
                          TITLE 17--COPYRIGHTS
 
            CHAPTER 1--SUBJECT MATTER AND SCOPE OF COPYRIGHT
 
Sec. 110. Limitations on exclusive rights: Exemption of certain 
        performances and displays
        
    Notwithstanding the provisions of section 106, the following are not 
infringements of copyright:
        (1) performance or display of a work by instructors or pupils in 
    the course of face-to-face teaching activities of a nonprofit 
    educational 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 
    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 employment;

        (3) performance of a nondramatic literary or musical work or of 
    a dramatico-musical work of a religious nature, or display of a 
    work, in the course of services at a place of worship or other 
    religious assembly;
        (4) performance of a nondramatic literary or musical work 
    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 
        objection to the performance under the following conditions;
                (i) the notice shall be in writing and signed by the 
            copyright owner or such owner's 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 
            the objection; 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)(A) except as provided in subparagraph (B), 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--
            (i) a direct charge is made to see or hear the transmission; 
        or
            (ii) the transmission thus received is further transmitted 
        to the public;

        (B) communication by an establishment of a transmission or 
    retransmission embodying a performance or display of a nondramatic 
    musical work intended to be received by the general public, 
    originated by a radio or television broadcast station licensed as 
    such by the Federal Communications Commission, or, if an audiovisual 
    transmission, by a cable system or satellite carrier, if--
            (i) in the case of an establishment other than a food 
        service or drinking establishment, either the establishment in 
        which the communication occurs has less than 2,000 gross square 
        feet of space (excluding space used for customer parking and for 
        no other purpose), or the establishment in which the 
        communication occurs has 2,000 or more gross square feet of 
        space (excluding space used for customer parking and for no 
        other purpose) and--
                (I) if the performance is by audio means only, the 
            performance is communicated by means of a total of not more 
            than 6 loudspeakers, of which not more than 4 loudspeakers 
            are located in any 1 room or adjoining outdoor space; or
                (II) if the performance or display is by audiovisual 
            means, any visual portion of the performance or display is 
            communicated by means of a total of not more than 4 
            audiovisual devices, of which not more than 1 audiovisual 
            device is located in any 1 room, and no such audiovisual 
            device has a diagonal screen size greater than 55 inches, 
            and any audio portion of the performance or display is 
            communicated by means of a total of not more than 6 
            loudspeakers, of which not more than 4 loudspeakers are 
            located in any 1 room or adjoining outdoor space;

            (ii) in the case of a food service or drinking 
        establishment, either the establishment in which the 
        communication occurs has less than 3,750 gross square feet of 
        space (excluding space used for customer parking and for no 
        other purpose), or the establishment in which the communication 
        occurs has 3,750 gross square feet of space or more (excluding 
        space used for customer parking and for no other purpose) and--
                (I) if the performance is by audio means only, the 
            performance is communicated by means of a total of not more 
            than 6 loudspeakers, of which not more than 4 loudspeakers 
            are located in any 1 room or adjoining outdoor space; or
                (II) if the performance or display is by audiovisual 
            means, any visual portion of the performance or display is 
            communicated by means of a total of not more than 4 
            audiovisual devices, of which not more than one audiovisual 
            device is located in any 1 room, and no such audiovisual 
            device has a diagonal screen size greater than 55 inches, 
            and any audio portion of the performance or display is 
            communicated by means of a total of not more than 6 
            loudspeakers, of which not more than 4 loudspeakers are 
            located in any 1 room or adjoining outdoor space;

            (iii) no direct charge is made to see or hear the 
        transmission or retransmission;
            (iv) the transmission or retransmission is not further 
        transmitted beyond the establishment where it is received; and
            (v) the transmission or retransmission is licensed by the 
        copyright owner of the work so publicly performed or displayed;

        (6) performance of a nondramatic musical work by a governmental 
    body or a nonprofit agricultural or horticultural organization, in 
    the course of an annual agricultural or horticultural fair or 
    exhibition conducted by such body or organization; the exemption 
    provided by this clause shall extend to any liability for copyright 
    infringement that would otherwise be imposed on such body or 
    organization, under doctrines of vicarious liability or related 
    infringement, for a performance by a concessionnaire, business 
    establishment, or other person at such fair or exhibition, but shall 
    not excuse any such person from liability for the performance;
        (7) performance of a nondramatic musical work 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, 
    or of the audiovisual or other devices utilized in such performance, 
    and the performance is not transmitted beyond the place where the 
    establishment is located and is within the immediate area where the 
    sale is occurring;
        (8) performance of a nondramatic literary work, by or in the 
    course of a transmission specifically designed for and primarily 
    directed to blind or other handicapped persons who are unable to 
    read normal printed material as a result of their handicap, or deaf 
    or other handicapped persons who are unable to hear the aural 
    signals accompanying a transmission of visual signals, if the 
    performance is made without any purpose of direct or indirect 
    commercial advantage and its transmission is made through the 
    facilities of: (i) a governmental body; or (ii) a noncommercial 
    educational broadcast station (as defined in section 397 of title 
    47); or (iii) a radio subcarrier authorization (as defined in 47 CFR 
    73.293-73.295 and 73.593-73.595); or (iv) a cable system (as defined 
    in section 111(f));
        (9) performance on a single occasion of a dramatic literary work 
    published at least ten years before the date of the performance, by 
    or in the course of a transmission specifically designed for and 
    primarily directed to blind or other handicapped persons who are 
    unable to read normal printed material as a result of their 
    handicap, if the performance is made without any purpose of direct 
    or indirect commercial advantage and its transmission is made 
    through the facilities of a radio subcarrier authorization referred 
    to in clause (8)(iii), Provided, That the provisions of this clause 
    shall not be applicable to more than one performance of the same 
    work by the same performers or under the auspices of the same 
    organization; and
        (10) notwithstanding paragraph (4), the following is not an 
    infringement of copyright: performance of a nondramatic literary or 
    musical work in the course of a social function which is organized 
    and promoted by a nonprofit veterans' organization or a nonprofit 
    fraternal organization to which the general public is not invited, 
    but not including the invitees of the organizations, if the proceeds 
    from the performance, after deducting the reasonable costs of 
    producing the performance, are used exclusively for charitable 
    purposes and not for financial gain. For purposes of this section 
    the social functions of any college or university fraternity or 
    sorority shall not be included unless the social function is held 
    solely to raise funds for a specific charitable purpose.

The exemptions provided under paragraph (5) shall not be taken into 
account in any administrative, judicial, or other governmental 
proceeding to set or adjust the royalties payable to copyright owners 
for the public performance or display of their works. Royalties payable 
to copyright owners for any public performance or display of their works 
other than such performances or displays as are exempted under paragraph 
(5) shall not be diminished in any respect as a result of such 
exemption.

(Pub. L. 94-553, title I, Sec. 101, Oct. 19, 1976, 90 Stat. 2549; Pub. 
L. 97-366, Sec. 3, Oct. 25, 1982, 96 Stat. 1759; Pub. L. 105-80, 
Sec. 12(a)(6), Nov. 13, 1997, 111 Stat. 1534; Pub. L. 105-298, title II, 
Sec. 202, Oct. 27, 1998, 112 Stat. 2830; Pub. L. 106-44, Sec. 1(a), Aug. 
5, 1999, 113 Stat. 221.)


                      Historical and Revision Notes

                        house report no. 94-1476

    Clauses (1) through (4) of section 110 deal with performances and 
exhibitions that are now generally exempt under the ``for profit'' 
limitation or other provisions of the copyright law, and that are 
specifically exempted from copyright liability under this legislation. 
Clauses (1) and (2) between them are intended to cover all of the 
various methods by which performances or displays in the course of 
systematic instruction take place.
    Face-to-Face Teaching Activities. Clause (1) of section 110 is 
generally intended to set out the conditions under which performances or 
displays, in the course of instructional activities other than 
educational broadcasting, are to be exempted from copyright control. The 
clause covers all types of copyrighted works, and exempts their 
performance or display ``by instructors or pupils in the course of face-
to-face teaching activities of a nonprofit educational institution,'' 
where the activities take place ``in a classroom or similar place 
devoted to instruction.''
    There appears to be no need for a statutory definition of ``face-to-
face'' teaching activities to clarify the scope of the provision. 
``Face-to-face teaching activities'' under clause (1) embrace 
instructional performances and displays that are not ``transmitted.'' 
The concept does not require that the teacher and students be able to 
see each other, although it does require their simultaneous presence in 
the same general place. Use of the phrase ``in the course of face-to-
face teaching activities'' is intended to exclude broadcasting or other 
transmissions from an outside location into classrooms, whether radio or 
television and whether open or closed circuit. However, as long as the 
instructor and pupils are in the same building or general area, the 
exemption would extend to the use of devices for amplifying or 
reproducing sound and for projecting visual images. The ``teaching 
activities'' exempted by the clause encompass systematic instruction of 
a very wide variety of subjects, but they do not include performances or 
displays, whatever their cultural value or intellectual appeal, that are 
given for the recreation or entertainment of any part of their audience.
    Works Affected.--Since there is no limitation on the types of works 
covered by the exemption, teachers or students would be free to perform 
or display anything in class as long as the other conditions of the 
clause are met. They could read aloud from copyrighted text material, 
act out a drama, play or sing a musical work, perform a motion picture 
or filmstrip, or display text or pictorial material to the class by 
means of a projector. However, nothing in this provision is intended to 
sanction the unauthorized reproduction of copies or phonorecords for the 
purpose of classroom performance or display, and the clause contains a 
special exception dealing with performances from unlawfully made copies 
of motion pictures and other audiovisual works, to be discussed below.
    Instructors or Pupils.--To come within clause (1), the performance 
or display must be ``by instructors or pupils,'' thus ruling out 
performances by actors, singers, or instrumentalists brought in from 
outside the school to put on a program. However, the term 
``instructors'' would be broad enough to include guest lecturers if 
their instructional activities remain confined to classroom situations. 
In general, the term ``pupils'' refers to the enrolled members of a 
class.
    Nonprofit Educational Institution.--Clause (1) makes clear that it 
applies only to the teaching activities ``of a nonprofit educational 
institution,'' thus excluding from the exemption performances or 
displays in profit-making institutions such as dance studios and 
language schools.
    Classroom or Similar Place.--The teaching activities exempted by the 
clause must take place ``in a classroom or similar place devoted to 
instruction.'' For example, performances in an auditorium or stadium 
during a school assembly, graduation ceremony, class play, or sporting 
event, where the audience is not confined to the members of a particular 
class, would fall outside the scope of clause (1), although in some 
cases they might be exempted by clause (4) of section 110. The ``similar 
place'' referred to in clause (1) is a place which is ``devoted to 
instruction'' in the same way a classroom is; common examples would 
include a studio, a workshop, a gymnasium, a training field, a library, 
the stage of an auditorium, or the auditorium itself, if it is actually 
used as a classroom for systematic instructional activities.
    Motion Pictures and Other Audiovisual Works.--The final provision of 
clause (1) deals with the special problem of performances from 
unlawfully-made copies of motion pictures and other audiovisual works. 
The exemption is lost where the copy being used for a classroom 
performance was ``not lawfully made under this title'' and the person 
responsible for the performance knew or had reason to suspect as much. 
This special exception to the exemption would not apply to performances 
from lawfully-made copies, even if the copies were acquired from someone 
who had stolen or converted them, or if the performances were in 
violation of an agreement. However, though the performance would be 
exempt under section 110(1) in such cases, the copyright owner might 
have a cause of action against the unauthorized distributor under 
section 106(3), or against the person responsible for the performance, 
for breach of contract.
    Projection Devices.--As long as there is no transmission beyond the 
place where the copy is located, both section 109(b) and section 110(1) 
would permit the classroom display of a work by means of any sort of 
projection device or process.
    Instructional Broadcasting. Works Affected.--The exemption for 
instructional broadcasting provided by section 110(2) would apply only 
to ``performance of a nondramatic literary or musical work or display of 
a work.'' Thus, the copyright owner's permission would be required for 
the performance on educational television or radio of a dramatic work, 
of a dramatico-musical work such as an opera or musical comedy, or of a 
motion picture. Since, as already explained, audiovisual works such as 
filmstrips are equated with motion pictures, their sequential showing 
would be regarded as a performance rather than a display and would not 
be exempt under section 110(2). The clause is not intended to limit in 
any way the copyright owner's exclusive right to make dramatizations, 
adaptations, or other derivative works under section 106(2). Thus, for 
example, a performer could read a nondramatic literary work aloud under 
section 110(2), but the copyright owner's permission would be required 
for him to act it out in dramatic form.
    Systematic Instructional Activities.--Under section 110(2) a 
transmission must meet three specified conditions in order to be 
exempted from copyright liability. The first of these, as provided by 
subclause (A), is that the performance or display must be ``a regular 
part of the systematic instructional activities of a governmental body 
or a nonprofit educational institution.'' The concept of ``systematic 
instructional activities'' is intended as the general equivalent of 
``curriculums,'' but it could be broader in a case such as that of an 
institution using systematic teaching methods not related to specific 
course work. A transmission would be a regular part of these activities 
if it is in accordance with the pattern of teaching established by the 
governmental body or institution. The use of commercial facilities, such 
as those of a cable service, to transmit the performance or display, 
would not affect the exemption as long as the actual performance or 
display was for nonprofit purposes.
    Content of Transmission.--Subclause (B) requires that the 
performance or display be directly related and of material assistance to 
the teaching content of the transmission.
    Intended Recipients.--Subclause (C) requires that 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 employment.
    In all three cases, the instructional transmission need only be made 
``primarily'' rather than ``solely'' to the specified recipients to be 
exempt. Thus, the transmission could still be exempt even though it is 
capable of reception by the public at large. Conversely, it would not be 
regarded as made ``primarily'' for one of the required groups of 
recipients if the principal purpose behind the transmission is reception 
by the public at large, even if it is cast in the form of instruction 
and is also received in classrooms. Factors to consider in determining 
the ``primary'' purpose of a program would include its subject matter, 
content, and the time of its transmission.
    Paragraph (i) of subclause (C) generally covers what are known as 
``in-school'' broadcasts, whether open- or closed-circuit. The reference 
to ``classrooms or similar places'' here is intended to have the same 
meaning as that of the phrase as used in section 110(1). The exemption 
in paragraph (ii) is intended to exempt transmissions providing 
systematic instruction to individuals who cannot be reached in 
classrooms because of ``their disabilities or other special 
circumstances.'' Accordingly, the exemption is confined to instructional 
broadcasting that is an adjunct to the actual classwork of nonprofit 
schools or is primarily for people who cannot be brought together in 
classrooms such as preschool children, displaced workers, illiterates, 
and shut-ins.
    There has been some question as to whether or not the language in 
this section of the bill is intended to include instructional television 
college credit courses. These telecourses are aimed at undergraduate and 
graduate students in earnest pursuit of higher educational degrees who 
are unable to attend daytime classes because of daytime employment, 
distance from campus, or some other intervening reason. So long as these 
broadcasts are aimed at regularly enrolled students and conducted by 
recognized higher educational institutions, the committee believes that 
they are clearly within the language of section 110(2)(C)(ii). Like 
night school and correspondence courses before them, these telecourses 
are fast becoming a valuable adjunct of the normal college curriculum.
    The third exemption in subclause (C) is intended to permit the use 
of copyrighted material, in accordance with the other conditions of 
section 110(2), in the course of instructional transmissions for 
Government personnel who are receiving training ``as a part of their 
official duties or employment.''
    Religious Services. The exemption in clause (3) of section 110 
covers performances of a nondramatic literary or musical work, and also 
performances ``of dramatico-musical works of a religious nature''; in 
addition, it extends to displays of works of all kinds. The exemption 
applies where the performance or display is ``in the course of services 
at a place of worship or other religious assembly.'' The scope of the 
clause does not cover the sequential showing of motion pictures and 
other audiovisual works.
    The exemption, which to some extent has its counterpart in sections 
1 and 104 of the present law [sections 1 and 104 of former title 17], 
applies to dramatico-musical works ``of a religious nature.'' The 
purpose here is to exempt certain performances of sacred music that 
might be regarded as ``dramatic'' in nature, such as oratorios, 
cantatas, musical settings of the mass, choral services, and the like. 
The exemption is not intended to cover performances of secular operas, 
musical plays, motion pictures, and the like, even if they have an 
underlying religious or philosophical theme and take place ``in the 
course of [religious] services.''
    To be exempted under section 110(3) a performance or display must be 
``in the course of services,'' thus excluding activities at a place of 
worship that are for social, educational, fund raising, or entertainment 
purposes. Some performances of these kinds could be covered by the 
exemption in section 110(4), discussed next. Since the performance or 
display must also occur ``at a place of worship or other religious 
assembly,'' the exemption would not extend to religious broadcasts or 
other transmissions to the public at large, even where the transmissions 
were sent from the place of worship. On the other hand, as long as 
services are being conducted before a religious gathering, the exemption 
would apply if they were conducted in places such as auditoriums, 
outdoor theaters, and the like.
    Certain Other Nonprofit Performances. In addition to the educational 
and religious exemptions provided by clauses (1) through (3) of section 
110, clause (4) contains a general exception to the exclusive right of 
public performance that would cover some, though not all, of the same 
ground as the present ``for profit'' limitation.
    Scope of Exemption.--The exemption in clause (4) applies to the same 
general activities and subject matter as those covered by the ``for 
profit'' limitation today: public performances of nondramatic literary 
and musical works. However, the exemption would be limited to public 
performances given directly in the presence of an audience whether by 
means of living performers, the playing of phonorecords, or the 
operation of a receiving apparatus, and would not include a 
``transmission to the public.'' Unlike the clauses (1) through (3) and 
(5) of section 110, but like clauses (6) through (8), clause (4) applies 
only to performing rights in certain works, and does not affect the 
exclusive right to display a work in public.
    No Profit Motive.--In addition to the other conditions specified by 
the clause, the performance must be ``without any purpose of direct or 
indirect commercial advantage.'' This provision expressly adopts the 
principle established by the court decisions construing the ``for 
profit'' limitation: that public performances given or sponsored in 
connection with any commercial or profit-making enterprises are subject 
to the exclusive rights of the copyright owner even though the public is 
not charged for seeing or hearing the performance.
    No Payment for Performance.--An important condition for this 
exemption is that the performance be given ``without payment of any fee 
or other compensation for the performance to any of its performers, 
promoters, or organizers.'' The basic purpose of this requirement is to 
prevent the free use of copyrighted material under the guise of charity 
where fees or percentages are paid to performers, promoters, producers, 
and the like. However, the exemption would not be lost if the 
performers, directors, or producers of the performance, instead of being 
paid directly ``for the performance,'' are paid a salary for duties 
encompassing the performance. Examples are performances by a school 
orchestra conducted by a music teacher who receives an annual salary, or 
by a service band whose members and conductors perform as part of their 
assigned duties and who receive military pay. The committee believes 
that performances of this type should be exempt, assuming the other 
conditions in clause (4) are met, and has not adopted the suggestion 
that the word ``salary'' be added to the phrase referring to the 
``payment of any fee or other compensation.''
    Admission Charge.--Assuming that the performance involves no profit 
motive and no one responsible for it gets paid a fee, it must still meet 
one of two alternative conditions to be exempt. As specified in 
subclauses (A) and (B) of section 110(4), these conditions are: (1) that 
no direct or indirect admission charge is made, or (2) that the net 
proceeds are ``used exclusively for educational, religious, or 
charitable purposes and not for private financial gain.''
    Under the second of these conditions, a performance meeting the 
other conditions of clause (4) would be exempt even if an admission fee 
is charged, provided any amounts left ``after deducting the reasonable 
costs of producing the performance'' are used solely for bona fide 
educational, religious, or charitable purposes. In cases arising under 
this second condition and as provided in subclause (B), where there is 
an admission charge, the copyright owner is given an opportunity to 
decide whether and under what conditions the copyrighted work should be 
performed; otherwise, owners could be compelled to make involuntary 
donations to the fund-raising activities of causes to which they are 
opposed. The subclause would thus permit copyright owners to prevent 
public performances of their works under section 110(4)(B) by serving 
notice of objection, with the reasons therefor, at least seven days in 
advance.
    Mere Reception in Public. Unlike the first four clauses of section 
110, clause (5) is not to any extent a counterpart of the ``for profit'' 
limitation of the present statute. It applies to performances and 
displays of all types of works, and its purpose is to exempt from 
copyright liability anyone who merely turns on, in a public place, an 
ordinary radio or television receiving apparatus of a kind commonly sold 
to members of the public for private use.
    The basic rationale of this clause is that the secondary use of the 
transmission by turning on an ordinary receiver in public is so remote 
and minimal that no further liability should be imposed. In the vast 
majority of these cases no royalties are collected today, and the 
exemption should be made explicit in the statute. This clause has 
nothing to do with cable television systems and the exemptions would be 
denied in any case where the audience is charged directly to see or hear 
the transmission.
    With respect to section 110(5), the conference substitute conforms 
to the language in the Senate bill. It is the intent of the conferees 
that a small commercial establishment of the type involved in Twentieth 
Century Music Corp. v. Aiken, 422 U.S. 151 (1975), [95 S.Ct. 2040, 45 
L.Ed.2d 84], which merely augmented a home-type receiver and which was 
not of sufficient size to justify, as a practical matter, a subscription 
to a commercial background music service, would be exempt. However, 
where the public communication was by means of something other than a 
home-type receiving apparatus, or where the establishment actually makes 
a further transmission to the public, the exemption would not apply.
    On June 17, 1975, the Supreme Court handed down a decision in 
Twentieth Century Music Corp. v. Aiken, 95 S.Ct. 2040 [422 U.S. 151, 45 
L.Ed.2d 84], that raised fundamental questions about the proper 
interpretation of section 110(5). The defendant, owner and operator of a 
fast-service food shop in downtown Pittsburgh, had ``a radio with 
outlets to four speakers in the ceiling,'' which he apparently turned on 
and left on throughout the business day. Lacking any performing license, 
he was sued for copyright infringement by two ASCAP members. He lost in 
the District Court, won a reversal in the Third Circuit Court of 
Appeals, and finally prevailed, by a margin of 7-2, in the Supreme 
Court.
    The Aiken decision is based squarely on the two Supreme Court 
decisions dealing with cable television. In Fortnightly Corp. v. United 
Artists, 392 U.S. 390 [88 S.Ct. 2084, 20 L.Ed.2d 1176, rehearing denied 
89 S.Ct. 65, 393 U.S. 902, 21 L.Ed.2d 190], and again in Teleprompter 
Corp. v. CBS, 415 U.S. 394 [94 S.Ct. 1129, 39 L.Ed.2d 415], the Supreme 
Court has held that a CATV operator was not ``performing'' within the 
meaning of the 1909 statute, when it picked up broadcast signals off the 
air and retransmitted them to subscribers by cable. The Aiken decision 
extends this interpretation of the scope of the 1909 statute's right of 
``public performance for profit'' to a situation outside the CATV 
context and, without expressly overruling the decision in Buck v. 
Jewell-LaSalle Realty Co., 283 U.S. 191 (1931) [51 S.Ct. 410, 75 L.Ed. 
971], effectively deprives it of much meaning under the present law. For 
more than forty years the Jewell-LaSalle rule was thought to require a 
business establishment to obtain copyright licenses before it could 
legally pick up any broadcasts off the air and retransmit them to its 
guests and patrons. As reinterpreted by the Aiken decision, the rule of 
Jewell-LaSalle applies only if the broadcast being retransmitted was 
itself unlicensed.
    The majority of the Supreme Court in the Aiken case based its 
decision on a narrow construction of the word ``perform'' in the 1909 
statute. This basis for the decision is completely overturned by the 
present bill and its broad definition of ``perform'' in section 101. The 
Committee has adopted the language of section 110(5) with an amendment 
expressly denying the exemption in situations where ``the performance or 
display is further transmitted beyond the place where the receiving 
apparatus is located''; in doing so, it accepts the traditional, pre-
Aiken, interpretation of the Jewell-LaSalle decision, under which public 
communication by means other than a home receiving set, or further 
transmission of a broadcast to the public, is considered an infringing 
act.
    Under the particular fact situation in the Aiken case, assuming a 
small commercial establishment and the use of a home receiver with four 
ordinary loudspeakers grouped within a relatively narrow circumference 
from the set, it is intended that the performances would be exempt under 
clause (5). However, the Committee considers this fact situation to 
represent the outer limit of the exemption, and believes that the line 
should be drawn at that point. Thus, the clause would exempt small 
commercial establishments whose proprietors merely bring onto their 
premises standard radio or television equipment and turn it on for their 
customers' enjoyment, but it would impose liability where the proprietor 
has a commercial ``sound system'' installed or converts a standard home 
receiving apparatus (by augmenting it with sophisticated or extensive 
amplification equipment) into the equivalent of a commercial sound 
system. Factors to consider in particular cases would include the size, 
physical arrangement, and noise level of the areas within the 
establishment where the transmissions are made audible or visible, and 
the extent to which the receiving apparatus is altered or augmented for 
the purpose of improving the aural or visual quality of the performance 
for individual members of the public using those areas.
    Agricultural Fairs. The Committee also amended clause (6) of section 
110 of S. 22 as adopted by the Senate. As amended, the provision would 
exempt ``performance of a nondramatic musical work by a governmental 
body or a nonprofit agricultural or horticultural organization, in the 
course of an annual agricultural or horticultural fair or exhibition 
conducted by such body or organization.'' The exemption extends only to 
the governmental body or nonprofit organization sponsoring the fair; the 
amendment makes clear that, while such a body or organization cannot 
itself be held vicariously liable for infringements by concessionaires 
at the fair, the concessionaires themselves enjoy no exemption under the 
clause.
    Retail Sale of Phonorecords. Clause (7) provides that the 
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, is not 
an infringement of copyright. This exemption applies only if the 
performance is not transmitted beyond the place where the establishment 
is located and is within the immediate area where the sale is occurring.
    Transmission to Handicapped Audiences. The new clause (8) of 
subsection 110, which had been added to S. 22 by the Senate Judiciary 
Committee when it reported the bill on November 20, 1975, and had been 
adopted by the Senate on February 19, 1976, was substantially amended by 
the Committee. Under the amendment, the exemption would apply only to 
performances of ``nondramatic literary works'' by means of ``a 
transmission specifically designed for and primarily directed to'' one 
or the other of two defined classes of handicapped persons: (1) ``blind 
or other handicapped persons who are unable to read normal printed 
material as a result of their handicap'' or (2) ``deaf or other 
handicapped persons who are unable to hear the aural signals 
accompanying a transmission.'' Moreover, the exemption would be 
applicable only if the performance is ``without any purpose of direct or 
indirect commercial advantage,'' and if the transmission takes place 
through government facilities or through the facilities of a 
noncommercial educational broadcast station, a radio subcarrier 
authorization (SCA), or a cable system.


                               Amendments

    1999--Par. (5)(A). Pub. L. 106-44 redesignated cls. (A) and (B) as 
(i) and (ii), respectively.
    1998--Pub. L. 105-298, Sec. 202(a)(2), inserted concluding 
provisions.
    Par. (5). Pub. L. 105-298, Sec. 202(a)(1), designated existing 
provisions as subpar. (A), inserted ``except as provided in subparagraph 
(B),'' after ``(A)'', and added subpar. (B).
    Par. (7). Pub. L. 105-298, Sec. 202(b), inserted ``or of the 
audiovisual or other devices utilized in such performance,'' after 
``phonorecords of the work,''.
    1997--Par. (8). Pub. L. 105-80, Sec. 12(a)(6)(A), substituted 
semicolon for period at end.
    Par. (9). Pub. L. 105-80, Sec. 12(a)(6)(B), substituted ``; and'' 
for period at end.
    Par. (10). Pub. L. 105-80, Sec. 12(a)(6)(C), substituted ``paragraph 
(4)'' for ``paragraph 4 above''.
    1982--Par. (10). Pub. L. 97-366 added par. (10).


                    Effective Date of 1998 Amendment

    Amendment by Pub. L. 105-298 effective 90 days after Oct. 27, 1998, 
see section 207 of Pub. L. 105-298, set out as a note under section 101 
of this title.


                    Effective Date of 1982 Amendment

    Amendment by Pub. L. 97-366 effective 30 days after Oct. 25, 1982, 
see section 2 of Pub. L. 97-366, set out as a note under section 708 of 
this title.

                  Section Referred to in Other Sections

    This section is referred to in sections 106, 111, 112, 118, 501, 
504, 511 of this title; title 18 section 2319.
