and Related Laws Contained in Title 17 of the United States Code
Circular 92 - Chapter 1
Subject Matter and Scope of Copyright
§ 106. Exclusive rights in copyrighted works*
Subject to sections 107 through 121, the owner of copyright
under this title has the exclusive rights to do and to authorize any
of the following:
(1) to reproduce the copyrighted work in copies
or phonorecords;
(2) to prepare derivative works based upon the
copyrighted work;
(3) to distribute copies or phonorecords of the
copyrighted work to the public by sale or other transfer of ownership,
or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic,
and choreographic works, pantomimes, and motion pictures and other audiovisual
works, to perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic,
and choreographic works, pantomimes, and pictorial, graphic, or sculptural
works, including the individual images of a motion picture or other
audiovisual work, to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform
the copyrighted work publicly by means of a digital audio transmission.
(a) Rights of Attribution and Integrity.- Subject
to section 107 and independent of the exclusive rights provided in section
106, the author of a work of visual art-
(1) shall have the right-
(A) to claim authorship of that work, and
(B) to prevent the use of his or her name as the
author of any work of visual art which he or she did not create;
(2) shall have the right to prevent the use of
his or her name as the author of the work of visual art in the event
of a distortion, mutilation, or other modification of the work which
would be prejudicial to his or her honor or reputation; and
(3) subject to the limitations set forth in section
113(d), shall have the right-
(A) to prevent any intentional distortion, mutilation,
or other modification of that work which would be prejudicial to his
or her honor or reputation, and any intentional distortion, mutilation,
or modification of that work is a violation of that right, and
(B) to prevent any destruction of a work of recognized
stature, and any intentional or grossly negligent destruction of that
work is a violation of that right.
(b) Scope and Exercise of Rights.-Only the author
of a work of visual art has the rights conferred by subsection (a) in
that work, whether or not the author is the copyright owner. The authors
of a joint work of visual art are coowners of the rights conferred by
subsection (a) in that work.
(c) Exceptions.- (1) The modification of a work
of visual art which is the result of the passage of time or the inherent
nature of the materials is not a distortion, mutilation, or other modification
described in subsection (a)(3)(A).
(2) The modification of a work of visual art which
is the result of conservation, or of the public presentation, including
lighting and placement, of the work is not a destruction, distortion,
mutilation, or other modification described in subsection (a)(3) unless
the modification is caused by gross negligence.
(3) The rights described in paragraphs (1) and
(2) of subsection (a) shall not apply to any reproduction, depiction,
portrayal, or other use of a work in, upon, or in any connection with
any item described in subparagraph (A) or (B) of the definition of "work
of visual art" in section 101, and any such reproduction, depiction,
portrayal, or other use of a work is not a destruction, distortion,
mutilation, or other modification described in paragraph (3) of subsection
(a).
(d) Duration of Rights.- (1) With respect to works
of visual art created on or after the effective date set forth in section
610(a) of the Visual Artists Rights Act of 1990, the rights conferred
by subsection (a) shall endure for a term consisting of the life of
the author.
(2) With respect to works of visual art created
before the effective date set forth in section 610(a) of the Visual
Artists Rights Act of 1990, but title to which has not, as of such effective
date, been transferred from the author, the rights conferred by subsection
(a) shall be coextensive with, and shall expire at the same time as,
the rights conferred by section 106.
(3) In the case of a joint work prepared by two
or more authors, the rights conferred by subsection (a) shall endure
for a term consisting of the life of the last surviving author.
(4) All terms of the rights conferred by subsection
(a) run to the end of the calendar year in which they would otherwise
expire.
(e) Transfer and Waiver.- (1) The rights conferred
by subsection (a) may not be transferred, but those rights may be waived
if the author expressly agrees to such waiver in a written instrument
signed by the author. Such instrument shall specifically identify the
work, and uses of that work, to which the waiver applies, and the waiver
shall apply only to the work and uses so identified. In the case of
a joint work prepared by two or more authors, a waiver of rights under
this paragraph made by one such author waives such rights for all such
authors.
(2) Ownership of the rights conferred by subsection
(a) with respect to a work of visual art is distinct from ownership
of any copy of that work, or of a copyright or any exclusive right under
a copyright in that work. Transfer of ownership of any copy of a work
of visual art, or of a copyright or any exclusive right under a copyright,
shall not constitute a waiver of the rights conferred by subsection
(a). Except as may otherwise be agreed by the author in a written instrument
signed by the author, a waiver of the rights conferred by subsection
(a) with respect to a work of visual art shall not constitute a transfer
of ownership of any copy of that work, or of ownership of a copyright
or of any exclusive right under a copyright in that work.
Notwithstanding the provisions of sections 106 and 106A,
the fair use of a copyrighted work, including such use by reproduction
in copies or phonorecords or by any other means specified by that section,
for purposes such as criticism, comment, news reporting, teaching (including
multiple copies for classroom use), scholarship, or research, is not
an infringement of copyright. In determining whether the use made of
a work in any particular case is a fair use the factors to be considered
shall include-
(1) the purpose and character of the use, including
whether such use is of a commercial nature or is for nonprofit educational
purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion
used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market
for or value of the copyrighted work.
The fact that a work is unpublished shall not itself
bar a finding of fair use if such finding is made upon consideration
of all the above factors.
(a) Except as otherwise provided in this title and
notwithstanding the provisions of section 106, it is not an infringement
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, except as provided in subsections (b)
and (c), or to distribute such copy or phonorecord, under the conditions
specified by this section, if-
(1) the reproduction or distribution is made without
any purpose of direct or indirect commercial advantage;
(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; and
(3) the reproduction or distribution of the work
includes a notice of copyright that appears on the copy or phonorecord
that is reproduced under the provisions of this section, or includes
a legend stating that the work may be protected by copy-right if no
such notice can be found on the copy or phonorecord that is reproduced
under the provisions of this section.
(b) The rights of reproduction and distribution
under this section apply to three copies or phonorecords of an unpublished
work duplicated solely for purposes of preservation and security or
for deposit for research use in another library or archives of the type
described by clause (2) of subsection (a), if-
(1) the copy or phonorecord reproduced is currently
in the collections of the library or archives; and
(2) any such copy or phonorecord that is reproduced
in digital format is not otherwise distributed in that format and is
not made available to the public in that format outside the premises
of the library or archives.
(c) The right of reproduction under this section
applies to three copies or phonorecords of a published work duplicated
solely for the purpose of replacement of a copy or phonorecord that
is damaged, deteriorating, lost, or stolen, or if the existing format
in which the work is stored has become obsolete, if-
(1) the library or archives has, after a reasonable
effort, determined that an unused replacement cannot be obtained at
a fair price; and
(2) any such copy or phonorecord that is reproduced
in digital format is not made available to the public in that format
outside the premises of the library or archives in lawful possession
of such copy.
For purposes of this subsection, a format shall
be considered obsolete if the machine or device necessary to render
perceptible a work stored in that format is no longer manufactured or
is no longer reasonably available in the commercial marketplace.
(d) The rights of reproduction and distribution
under this section apply to a copy, made from the collection of a library
or archives where the user makes his or her request or from that of
another library or archives, of no more than one article or other contribution
to a copyrighted collection or periodical issue, or to a copy or phonorecord
of a small part of any other copyrighted work, if -
(1) the copy or phonorecord becomes the property
of the user, and the library or archives has had no notice that the
copy or phonorecord would be used for any purpose other than private
study, scholarship, or research; and
(2) the library or archives displays prominently,
at the place where orders are accepted, and includes on its order form,
a warning of copyright in accordance with requirements that the Register
of Copyrights shall prescribe by regulation.
(e) The rights of reproduction and distribution
under this section apply to the entire work, or to a substantial part
of it, made from the collection of a library or archives where the user
makes his or her request or from that of another library or archives,
if the library or archives has first determined, on the basis of a reasonable
investigation, that a copy or phonorecord of the copyrighted work cannot
be obtained at a fair price, if-
(1) the copy or phonorecord becomes the property
of the user, and the library or archives has had no notice that the
copy or phonorecord would be used for any purpose other than private
study, scholarship, or research; and
(2) the library or archives displays prominently,
at the place where orders are accepted, and includes on its order form,
a warning of copyright in accordance with requirements that the Register
of Copyrights shall prescribe by regulation.
(f) Nothing in this section-
(1) shall be construed to impose liability for
copyright infringement upon a library or archives or its employees for
the unsupervised use of reproducing equipment located on its premises:
Provided, That such equipment displays a notice that the making of a
copy may be subject to the copyright law;
(2) excuses a person who uses such reproducing
equipment or who requests a copy or phonorecord under subsection (d)
from liability for copyright infringement for any such act, or for any
later use of such copy or phonorecord, if it exceeds fair use as provided
by section 107;
(3) shall be construed to limit the reproduction
and distribution by lending of a limited number of copies and excerpts
by a library or archives of an audiovisual news program, subject to
clauses (1), (2), and (3) of subsection (a); or
(4) in any way affects the right of fair use as
provided by section 107, or any contractual obligations assumed at any
time by the library or archives when it obtained a copy or phonorecord
of a work in its collections.
(g) The rights of reproduction and distribution
under this section extend to the isolated and unrelated reproduction
or distribution of a single copy or phonorecord of the same material
on separate occasions, but do not extend to cases where the library
or archives, or its employee-
(1) is aware or has substantial reason to believe
that it is engaging in the related or concerted reproduction or distribution
of multiple copies or phonorecords of the same material, whether made
on one occasion or over a period of time, and whether intended for aggregate
use by one or more individuals or for separate use by the individual
members of a group; or
(2) engages in the systematic reproduction or distribution
of single or multiple copies or phonorecords of material described in
subsection (d): Provided, That nothing in this clause prevents a library
or archives from participating in interlibrary arrangements that do
not have, as their purpose or effect, that the library or archives receiving
such copies or phonorecords for distribution does so in such aggregate
quantities as to substitute for a subscription to or purchase of such
work.
(h)(1) For purposes of this section, during the
last 20 years of any term of copyright of a published work, a library
or archives, including a nonprofit educational institution that functions
as such, may reproduce, distribute, display, or perform in facsimile
or digital form a copy or phonorecord of such work, or portions thereof,
for purposes of preservation, scholarship, or research, if such library
or archives has first determined, on the basis of a reasonable investigation,
that none of the conditions set forth in subparagraphs (A), (B), and
(C) of paragraph (2) apply.
(2) No reproduction, distribution, display, or
performance is authorized under this subsection if-
(A) the work is subject to normal commercial exploitation;
(B) a copy or phonorecord of the work can be obtained
at a reasonable price; or
(C) the copyright owner or its agent provides notice
pursuant to regulations promulgated by the Register of Copyrights that
either of the conditions set forth in subparagraphs (A) and (B) applies.
(3) The exemption provided in this subsection does
not apply to any subsequent uses by users other than such library or
archives.
(i) The rights of reproduction and distribution
under this section do not apply to a musical work, a pictorial, graphic
or sculptural work, or a motion picture or other audiovisual work other
than an audiovisual work dealing with news, except that no such limitation
shall apply with respect to rights granted by subsections (b) and (c),
or with respect to pictorial or graphic works published as illustrations,
diagrams, or similar adjuncts to works of which copies are reproduced
or distributed in accordance with subsections (d) and (e).
Notes
