17 U.S.C. § 111 — Limitations on exclusive rights: Secondary transmissions of broadcast programming by cable

submitted 50 years ago by Pub. L. 94-553 to r/title-17-COPYRIGHTS · 5,391 words · no verdicts yet

in plain englishAI-generated · not legal advice

This law lets cable systems and others re-broadcast TV and radio signals without infringing copyright, under strict conditions. Cable systems must pay royalty fees based on subscriber revenue and file regular reports. It also defines the technical terms, like distant signal equivalent, used throughout the section.

(a) Certain secondary transmissions exempted. This subsection lists ways of re-sending ("secondary transmission") a broadcast that are not copyright infringement, even without permission. First, a hotel, apartment building, or similar place can relay a local FCC-licensed broadcast signal to guests' or residents' private rooms, as long as it isn't done by a cable system and no direct charge is made to see or hear it. Second, a secondary transmission is exempt if it's made solely for the purpose and under the conditions of the classroom-distance-learning exemption in section 110(2). Third, a "pure" carrier — one with no control over what's being sent or who receives it, and that only supplies wires, cables, or channels for others to use — is exempt for its own carrying activity, though this does not excuse anyone else's use of those wires from liability. Fourth, a secondary transmission made by a satellite carrier under the statutory licenses in section 119 or 122 is exempt. Fifth, a secondary transmission made by a government body or nonprofit organization — not a cable system — is exempt if it has no commercial purpose and charges recipients nothing beyond what covers the actual, reasonable cost of running the service. (b) Secondary transmission to a controlled group. If the original ("primary") broadcast is not meant for the public at large, but is instead limited to particular people, then re-sending it is copyright infringement and can be fully sued over — unless three things are all true: the original broadcast came from an FCC-licensed station, FCC rules require the carrier to carry that signal, and the carrier doesn't alter the signal in any way. (c) Secondary transmissions by cable systems. A cable system can retransmit an FCC-licensed (or Canadian- or Mexican-licensed) broadcast station's signal under a "statutory license" — meaning it doesn't need separate permission from every copyright owner — as long as it follows the reporting and payment rules in subsection (d), and the retransmission is allowed under FCC rules. But retransmission becomes a fully punishable infringement in several situations: if it isn't allowed under FCC rules, or if the cable system skipped filing the required statement and royalty; if the cable system deliberately altered the program's content or its ads (except for ad swaps done by television market-research companies, and only with consent from the advertiser, the station, and the cable system, and not done to make money from selling that ad time); or, for Canadian and Mexican signals, if the cable system's community is more than 150 miles from the Canadian border and south of the 42nd parallel (for Canadian signals), or if it received a Mexican signal by some means other than picking it up directly over the air, unless it was already doing so before April 15, 1976. (d) Statutory license for secondary transmissions by cable systems. This subsection sets out what a cable system must do to keep its statutory license. First, twice a year, the cable system must file a statement of account with the Register of Copyrights. That statement must list: how many channels it used for retransmission, the name and location of every station it retransmitted, its total number of subscribers, and its gross receipts for basic retransmission service (not counting subscribers or money tied to the satellite license in section 119). If it carried non-network programming beyond a station's local area under FCC substitution rules, it must also include a special statement with logs of the times, dates, stations, and programs involved. Along with that statement, the cable system (unless it qualifies for the small-system rates below) must pay a royalty fee, calculated as a percentage of its gross receipts, in steps: 1.064% of receipts for the general privilege of retransmitting non-network programming beyond a station's local area (this amount is then credited against the fees below); then 1.064% of receipts for the first "distant signal equivalent," a unit that measures how much distant programming the system is carrying; then 0.701% for each of the second, third, and fourth distant signal equivalents; and then 0.330% for the fifth distant signal equivalent and every one after that. Partial distant signal equivalents count at their fractional value. If a system serves an area partly inside and partly outside a station's local area, only receipts from subscribers outside that local area count. If a system carries a station's signal to only some of the communities it serves, the receipts and distant-signal-equivalent values are based only on subscribers in the communities that actually get that signal — but the total fee still can't be less than what the base 1.064% rate would produce if applied to receipts from all of the system's subscribers. A system that used this "some communities" method on a statement filed before the 2010 Satellite Television Extension and Localism Act is protected from being sued, or getting a refund, based on that calculation. Instead of these percentage tiers, a small cable system — one whose actual receipts for the period are $263,800 or less — pays a flat 0.5% royalty regardless of how many distant signals it carries, calculated using a reduced receipts figure (never reduced below $10,400). A mid-sized system — with receipts between $263,800 and $527,600 — pays 0.5% on the first $263,800 of receipts and 1% on the rest. Every system must also pay a separate filing fee set under section 708(a). The Register of Copyrights collects all these fees, subtracts the Copyright Office's reasonable costs of running the program, and deposits the rest in the U.S. Treasury, where it earns interest until the Librarian of Congress distributes it once the Copyright Royalty Judges authorize that. The deposited fees go to copyright owners who claim their work was part of a cable system's retransmissions during that period — specifically, work carried in non-network TV programming sent beyond a station's local area, work identified in the special statement described above, or work in non-network audio-only programming sent beyond the local area. Each July, anyone claiming a share of the fees must file a claim with the Copyright Royalty Judges; claimants can agree among themselves how to split the money, file jointly, or use a common agent, without running afoul of antitrust law. After August 1, the Judges decide whether there's a real dispute over how to divide the money. If not, the Librarian of Congress distributes it (minus reasonable administrative costs). If there is a dispute, the Judges hold a formal proceeding to resolve it, but they can still let the Librarian pay out any undisputed portion while that's happening. Two specific royalty rates that used to apply under federal regulations — called the "3.75 percent rate" and the "syndicated exclusivity surcharge" — do not apply to the retransmission of a "multicast stream" (an extra digital programming stream a station sends besides its main one). The Register must also create rules letting copyright owners confidentially verify what cable systems reported on statements filed for periods starting in 2010 or later. Those rules must set up an independent auditor with the sole authority to check a given system's statement on behalf of all the relevant copyright owners, and who isn't otherwise employed by any of them; protect confidential financial information; give the cable system a chance to review the auditor's findings, fix errors, and cure any underpayment, and a chance to dispute facts or conclusions; limit how often a given system, or a company owning several systems, can be audited each year; and allow verification requests only within three years after the year a statement was filed. Finally, if the Copyright Office receives extra royalty payments beyond what a cable system was required to deposit, those extra payments are treated as if they were deposited for whatever accounting period they were actually received in, and are distributed the same way as other fees. (e) Nonsimultaneous secondary transmissions by cable systems. Some cable systems — mainly those outside the 48 contiguous states, Hawaii, or Puerto Rico — are allowed to record a broadcast and replay it later rather than at the same time it airs. Doing this is normally a fully punishable infringement, unless the cable system meets every one of these conditions: it shows the taped program to subscribers only once; it shows the program, including its commercials, without any cuts or edits; an owner or officer of the system takes real steps to stop the tape from being copied while it's in the system's possession, at the facility that made the tape, and while it's being transported, and (with one exception described below) erases or destroys the tape; within 45 days after each calendar quarter, an owner or officer signs a sworn statement describing those anti-copying steps and confirming the tapes were erased or destroyed; that signed statement is kept in a file open to public inspection at the system's main office; and the delayed transmission is one the FCC's rules would have allowed even if it had been shown live, except this last condition doesn't apply to airings that happened by accident. Transferring a taped program to someone else is also normally a fully punishable infringement — except that, under a written, nonprofit cost-sharing agreement, cable systems within Alaska may share tapes with each other, cable systems within Hawaii may do the same, and cable systems in Guam, the Northern Mariana Islands, the Federated States of Micronesia, the Republic of Palau, or the Republic of the Marshall Islands may share tapes among themselves. To use this exception, the sharing contract must be filed with, and made public by, the Copyright Office within 30 days; the system receiving the tape must meet nearly all the same conditions listed above; and the receiving system must give a copy of its own compliance affidavit to every system that showed the tape before it. This subsection doesn't cancel out any exclusivity agreement, existing or future, between a cable system and a broadcast station or its network. And "videotape," as used in this subsection, means a recording of the pictures and sound of an FCC-licensed broadcast program, no matter what kind of physical object — tape, film, or otherwise — holds the recording. (f) Definitions. This subsection defines the technical terms used throughout the section. A "primary transmission" is a transmission made to the public that a secondary transmission service then picks up and re-sends; for a TV station, both its main programming stream and any extra ("multicast") streams count. A "secondary transmission" is the act of re-sending a primary transmission, either at the same time it's airing, or later if the cable system is located outside the 48 contiguous states, Hawaii, or Puerto Rico (a delayed re-send from Hawaii still counts as a secondary transmission if FCC rules allow the delayed carriage). A "cable system" is a facility, anywhere in the U.S. or its territories, that picks up broadcast signals and resends them by wire, cable, microwave, or similar means to paying subscribers; for royalty purposes, multiple cable systems in neighboring communities under common ownership, or sharing one central hub, count as a single system. The "local service area of a primary transmitter" — the zone within which a station's signal is treated as "local" rather than "distant" — is defined differently depending on the type of station: for a regular TV station, it's the area where FCC rules would have let the station insist on being carried as of April 15, 1976, or the station's TV market as later defined and updated by FCC rules; for a low-power TV station, it's the designated market area containing its community of license, plus nearby communities within 35 miles of its transmitter (or within 20 miles, if the station sits in one of the 50 largest metro areas); for a Canadian or Mexican station, it's whatever area it would control if U.S. rules applied to it; and for a radio station, it's the station's primary service area under FCC rules. A "distant signal equivalent" is a number used to measure how much distant (non-local) programming a cable system carries. Each independent station's stream normally counts as a full point; each network or noncommercial-educational station's stream counts as one-quarter of a point. Several exceptions lower or zero out that value: no value is assigned when a cable system substitutes another program for one FCC rules require it to drop; a reduced, prorated value applies for certain elective substitutions the FCC allowed as of the 1976 Copyright Act; a station carried only during certain time slots or part-time (because the cable system lacks channel capacity) gets its value scaled down based on how many of its broadcast hours are actually carried; and no value at all is assigned for retransmitting a station within its own local service area, since that isn't "distant" programming. A "network station" is a main programming stream owned, run by, or affiliated with a nationwide TV network, that airs a substantial share of that network's programming during a typical day — or, for an extra multicast stream, one that airs nearly all of a nationwide interconnected program service's content, where that service is tied to a network and reaches at least 25 affiliated stations in 10 or more states for 15-plus hours a week. An "independent station" is any TV stream that is neither a network station nor a noncommercial educational station. A "noncommercial educational station" is a stream that counts as such under the Communications Act's definition. A "primary stream" is a station's main digital programming stream — generally whichever one matches its old analog signal, or, failing that, whichever digital stream it has carried the longest. A "primary transmitter" is an FCC-licensed (or Canadian- or Mexican-licensed) TV or radio station that broadcasts to the public. A "multicast stream" is any other digital stream a TV station sends besides its primary stream, and a "simulcast" is a multicast stream that just duplicates the primary stream or another multicast stream. Finally, a "subscriber" is a person or entity that receives, and pays for, a cable system's retransmission service, and to "subscribe" means to choose to become one.

the actual law source: uscode.house.gov ↗public domain

(a)Certain Secondary Transmissions Exempted.—

The secondary transmission of a performance or display of a work embodied in a primary transmission 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 transmitted by a broadcast station licensed by the Federal Communications 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 transmission; or

(2)

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

(3)

the secondary transmission is made by any carrier who has no direct or indirect control over the content or selection of the primary transmission or over the particular recipients of the secondary transmission, and whose activities with respect to the secondary transmission consist solely of providing wires, cables, or other communications channels for the use of others: Provided, That the provisions of this paragraph 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 transmissions;

(4)

the secondary transmission is made by a satellite carrier pursuant to a statutory license under section 119 or section 122;

(5)

the secondary transmission is not made by a cable system but is made by a governmental body, or other nonprofit organization, without any purpose of direct 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 Controlled Group.—

Notwithstanding the provisions of subsections (a) and (c), the secondary transmission to the public of a performance or display of a work embodied in a primary transmission 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 transmission is not made for reception by the public at large but is controlled and limited to reception by particular members of the public: Provided, however, That such secondary transmission is not actionable as an act of infringement if—

(1)

the primary transmission is made by a broadcast station licensed by the Federal Communications Commission; and

(2)

the carriage of the signals comprising the secondary transmission is required under the rules, regulations, or authorizations of the Federal Communications Commission; and

(3)

the signal of the primary transmitter is not altered or changed in any way by the secondary transmitter.

(c)Secondary Transmissions by Cable Systems.—

(1)

Subject to the provisions of paragraphs (2), (3), and (4) of this subsection and section 114(d), secondary transmissions to the public by a cable system of a performance or display of a work embodied in a primary transmission made by a broadcast station licensed by the Federal Communications Commission or by an appropriate governmental authority of Canada or Mexico shall be subject to statutory licensing upon compliance with the requirements of subsection (d) where the carriage of the signals comprising the secondary transmission is permissible under the rules, regulations, or authorizations of the Federal Communications Commission.

(2)

Notwithstanding the provisions of paragraph (1) of this subsection, the willful or repeated secondary transmission to the public by a cable system of a primary transmission made by a broadcast station licensed by the Federal Communications Commission or by an appropriate governmental authority of Canada or Mexico and 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, in the following cases:

(A)

where the carriage of the signals comprising the secondary transmission is not permissible under the rules, regulations, or authorizations of the Federal Communications Commission; or

(B)

where the cable system has not deposited the statement of account and royalty fee required by subsection (d).

(3)

Notwithstanding the provisions of paragraph (1) of this subsection and subject to the provisions of subsection (e) of this section, the secondary transmission to the public by a cable system of a performance or display of a work embodied in a primary transmission made by a broadcast station licensed by the Federal Communications Commission or by an appropriate governmental authority of Canada or Mexico is actionable as an act of infringement under section 501, and is fully subject to the remedies provided by sections 502 through 506 and section 510, if the content of the particular program in which the performance or display is embodied, or any commercial advertising or station announcements transmitted by the primary transmitter during, or immediately before or after, the transmission of such program, is in any way willfully altered by the cable system through changes, deletions, or additions, except for the alteration, deletion, or substitution of commercial advertisements performed by those engaged in television commercial advertising market research: Provided, That the research company has obtained the prior consent of the advertiser who has purchased the original commercial advertisement, the television station broadcasting that commercial advertisement, and the cable system performing the secondary transmission: And provided further, That such commercial alteration, deletion, or substitution is not performed for the purpose of deriving income from the sale of that commercial time.

(4)

Notwithstanding the provisions of paragraph (1) of this subsection, the secondary transmission to the public by a cable system of a performance or display of a work embodied in a primary transmission made by a broadcast station licensed by an appropriate governmental authority of Canada or Mexico is actionable as an act of infringement under section 501, and is fully subject to the remedies provided by sections 502 through 506, if (A) with respect to Canadian signals, the community of the cable system is located more than 150 miles from the United States-Canadian border and is also located south of the forty-second parallel of latitude, or (B) with respect to Mexican signals, the secondary transmission is made by a cable system which received the primary transmission by means other than direct interception of a free space radio wave emitted by such broadcast television station, unless prior to April 15, 1976, such cable system was actually carrying, or was specifically authorized to carry, the signal of such foreign station on the system pursuant to the rules, regulations, or authorizations of the Federal Communications Commission.

(d)Statutory License for Secondary Transmissions by Cable Systems.—

(1)Statement of account and royalty fees.—

Subject to paragraph (5), a cable system whose secondary transmissions have been subject to statutory licensing under subsection (c) shall, on a semiannual basis, deposit with the Register of Copyrights, in accordance with requirements that the Register shall prescribe by regulation the following:

(A)

A statement of account, covering the six months next preceding, specifying the number of channels on which the cable system made secondary transmissions to its subscribers, the names and locations of all primary transmitters whose transmissions were further transmitted by the cable system, the total number of subscribers, the gross amounts paid to the cable system for the basic service of providing secondary transmissions of primary broadcast transmitters, and such other data as the Register of Copyrights may from time to time prescribe by regulation. In determining the total number of subscribers and the gross amounts paid to the cable system for the basic service of providing secondary transmissions of primary broadcast transmitters, the system shall not include subscribers and amounts collected from subscribers receiving secondary transmissions pursuant to section 119. Such statement shall also include a special statement of account covering any non-network television programming that was carried by the cable system in whole or in part beyond the local service area of the primary transmitter, under rules, regulations, or authorizations of the Federal Communications Commission permitting the substitution or addition of signals under certain circumstances, together with logs showing the times, dates, stations, and programs involved in such substituted or added carriage.

(B)

Except in the case of a cable system whose royalty fee is specified in subparagraph (E) or (F), a total royalty fee payable to copyright owners pursuant to paragraph (3) for the period covered by the statement, computed on the basis of specified percentages of the gross receipts from subscribers to the cable service during such period for the basic service of providing secondary transmissions of primary broadcast transmitters, as follows:

(i)

1.064 percent of such gross receipts for the privilege of further transmitting, beyond the local service area of such primary transmitter, any non-network programming of a primary transmitter in whole or in part, such amount to be applied against the fee, if any, payable pursuant to clauses (ii) through (iv);

(ii)

1.064 percent of such gross receipts for the first distant signal equivalent;

(iii)

0.701 percent of such gross receipts for each of the second, third, and fourth distant signal equivalents; and

(iv)

0.330 percent of such gross receipts for the fifth distant signal equivalent and each distant signal equivalent thereafter.

(C)

In computing amounts under clauses (ii) through (iv) of subparagraph (B)—

(i)

any fraction of a distant signal equivalent shall be computed at its fractional value;

(ii)

in the case of any cable system located partly within and partly outside of the local service area of a primary transmitter, gross receipts shall be limited to those gross receipts derived from subscribers located outside of the local service area of such primary transmitter; and

(iii)

if a cable system provides a secondary transmission of a primary transmitter to some but not all communities served by that cable system—

(I)

the gross receipts and the distant signal equivalent values for such secondary transmission shall be derived solely on the basis of the subscribers in those communities where the cable system provides such secondary transmission; and

(II)

the total royalty fee for the period paid by such system shall not be less than the royalty fee calculated under subparagraph (B)(i) multiplied by the gross receipts from all subscribers to the system.

(D)

A cable system that, on a statement submitted before the date of the enactment of the Satellite Television Extension and Localism Act of 2010, computed its royalty fee consistent with the methodology under subparagraph (C)(iii), or that amends a statement filed before such date of enactment to compute the royalty fee due using such methodology, shall not be subject to an action for infringement, or eligible for any royalty refund or offset, arising out of its use of such methodology on such statement.

(E)

(i)

gross receipts of the cable system for the purpose of this paragraph shall be computed by subtracting from such actual gross receipts the amount by which $263,800 exceeds such actual gross receipts, except that in no case shall a cable system’s gross receipts be reduced to less than $10,400; and

(ii)

the royalty fee payable under this paragraph to copyright owners pursuant to paragraph (3) shall be 0.5 percent, regardless of the number of distant signal equivalents, if any.

(F)

If the actual gross receipts paid by subscribers to a cable system for the period covered by the statement for the basic service of providing secondary transmissions of primary broadcast transmitters are more than $263,800 but less than $527,600, the royalty fee payable under this paragraph to copyright owners pursuant to paragraph (3) shall be—

(i)

0.5 percent of any gross receipts up to $263,800, regardless of the number of distant signal equivalents, if any; and

(ii)

1 percent of any gross receipts in excess of $263,800, but less than $527,600, regardless of the number of distant signal equivalents, if any.

(G)

A filing fee, as determined by the Register of Copyrights pursuant to section 708(a).

(2)Handling of fees.—

The Register of Copyrights shall receive all fees (including the filing fee specified in paragraph (1)(G)) deposited under this section and, after deducting the reasonable costs incurred by the Copyright Office under this section, shall deposit the balance in the Treasury of the United States, in such manner as the Secretary of the Treasury directs. All funds held by the Secretary of the Treasury shall be invested in interest-bearing United States securities for later distribution with interest by the Librarian of Congress upon authorization by the Copyright Royalty Judges.

(3)Distribution of royalty fees to copyright owners.—

The royalty fees thus deposited shall, in accordance with the procedures provided by paragraph (4), be distributed to those among the following copyright owners who claim that their works were the subject of secondary transmissions by cable systems during the relevant semiannual period:

(A)

Any such owner whose work was included in a secondary transmission made by a cable system of a non-network television program in whole or in part beyond the local service area of the primary transmitter.

(B)

Any such owner whose work was included in a secondary transmission identified in a special statement of account deposited under paragraph (1)(A).

(C)

Any such owner whose work was included in non-network programming consisting exclusively of aural signals carried by a cable system in whole or in part beyond the local service area of the primary transmitter of such programs.

(4)Procedures for royalty fee distribution.—

The royalty fees thus deposited shall be distributed in accordance with the following procedures:

(A)

During the month of July in each year, every person claiming to be entitled to statutory license fees for secondary transmissions shall file a claim with the Copyright Royalty Judges, in accordance with requirements that the Copyright Royalty Judges shall prescribe by regulation. Notwithstanding any provisions of the antitrust laws, for purposes of this clause any claimants may agree among themselves as to the proportionate division of statutory licensing fees among them, may lump their claims together and file them jointly or as a single claim, or may designate a common agent to receive payment on their behalf.

(B)

After the first day of August of each year, the Copyright Royalty Judges shall determine whether there exists a controversy concerning the distribution of royalty fees. If the Copyright Royalty Judges determine that no such controversy exists, the Copyright Royalty Judges shall authorize the Librarian of Congress to proceed to distribute such fees to the copyright owners entitled to receive them, or to their designated agents, subject to the deduction of reasonable administrative costs under this section. If the Copyright Royalty Judges find the existence of a controversy, the Copyright Royalty Judges shall, pursuant to chapter 8 of this title, conduct a proceeding to determine the distribution of royalty fees.

(C)

During the pendency of any proceeding under this subsection, the Copyright Royalty Judges shall have the discretion to authorize the Librarian of Congress to proceed to distribute any amounts that are not in controversy.

(5) 3.75 percent rate and syndicated exclusivity surcharge not applicable to multicast streams.—

The royalty rates specified in sections 256.2(c) and 256.2(d) of title 37, Code of Federal Regulations (commonly referred to as the “3.75 percent rate” and the “syndicated exclusivity surcharge”, respectively), as in effect on the date of the enactment of the Satellite Television Extension and Localism Act of 2010, as such rates may be adjusted, or such sections redesignated, thereafter by the Copyright Royalty Judges, shall not apply to the secondary transmission of a multicast stream.

(6)Verification of accounts and fee payments.—

The Register of Copyrights shall issue regulations to provide for the confidential verification by copyright owners whose works were embodied in the secondary transmissions of primary transmissions pursuant to this section of the information reported on the semiannual statements of account filed under this subsection for accounting periods beginning on or after January 1, 2010, in order that the auditor designated under subparagraph (A) is able to confirm the correctness of the calculations and royalty payments reported therein. The regulations shall—

(A)

establish procedures for the designation of a qualified independent auditor—

(i)

with exclusive authority to request verification of such a statement of account on behalf of all copyright owners whose works were the subject of secondary transmissions of primary transmissions by the cable system (that deposited the statement) during the accounting period covered by the statement; and

(ii)

who is not an officer, employee, or agent of any such copyright owner for any purpose other than such audit;

(B)

establish procedures for safeguarding all non-public financial and business information provided under this paragraph;

(C)

(i)

require a consultation period for the independent auditor to review its conclusions with a designee of the cable system;

(ii)

establish a mechanism for the cable system to remedy any errors identified in the auditor’s report and to cure any underpayment identified; and

(iii)

provide an opportunity to remedy any disputed facts or conclusions;

(D)

limit the frequency of requests for verification for a particular cable system and the number of audits that a multiple system operator can be required to undergo in a single year; and

(E)

permit requests for verification of a statement of account to be made only within 3 years after the last day of the year in which the statement of account is filed.

(7)Acceptance of additional deposits.—

Any royalty fee payments received by the Copyright Office from cable systems for the secondary transmission of primary transmissions that are in addition to the payments calculated and deposited in accordance with this subsection shall be deemed to have been deposited for the particular accounting period for which they are received and shall be distributed as specified under this subsection.

(e)Nonsimultaneous Secondary Transmissions by Cable Systems.—

(1)

Notwithstanding those provisions of the 1 subsection (f)(2) relating to nonsimultaneous secondary transmissions by a cable system, any such transmissions are actionable as an act of infringement under section 501, and are fully subject to the remedies provided by sections 502 through 506 and section 510, unless—

(A)

the program on the videotape is transmitted no more than one time to the cable system’s subscribers;

(B)

the copyrighted program, episode, or motion picture videotape, including the commercials contained within such program, episode, or picture, is transmitted without deletion or editing;

(C)

an owner or officer of the cable system (i) prevents the duplication of the videotape while in the possession of the system, (ii) prevents unauthorized duplication while in the possession of the facility making the videotape for the system if the system owns or controls the facility, or takes reasonable precautions to prevent such duplication if it does not own or control the facility, (iii) takes adequate precautions to prevent duplication while the tape is being transported, and (iv) subject to paragraph (2), erases or destroys, or causes the erasure or destruction of, the videotape;

(D)

within forty-five days after the end of each calendar quarter, an owner or officer of the cable system executes an affidavit attesting (i) to the steps and precautions taken to prevent duplication of the videotape, and (ii) subject to paragraph (2), to the erasure or destruction of all videotapes made or used during such quarter;

(E)

such owner or officer places or causes each such affidavit, and affidavits received pursuant to paragraph (2)(C), to be placed in a file, open to public inspection, at such system’s main office in the community where the transmission is made or in the nearest community where such system maintains an office; and

(F)

the nonsimultaneous transmission is one that the cable system would be authorized to transmit under the rules, regulations, and authorizations of the Federal Communications Commission in effect at the time of the nonsimultaneous transmission if the transmission had been made simultaneously, except that this subparagraph shall not apply to inadvertent or accidental transmissions.

(2)

If a cable system transfers to any person a videotape of a program nonsimultaneously transmitted by it, such transfer is actionable as an act of infringement under section 501, and is fully subject to the remedies provided by sections 502 through 506, except that, pursuant to a written, nonprofit contract providing for the equitable sharing of the costs of such videotape and its transfer, a videotape nonsimultaneously transmitted by it, in accordance with paragraph (1), may be transferred by one cable system in Alaska to another system in Alaska, by one cable system in Hawaii permitted to make such nonsimultaneous transmissions to another such cable system in Hawaii, or by one cable system in Guam, the Northern Mariana Islands, the Federated States of Micronesia, the Republic of Palau, or the Republic of the Marshall Islands, to another cable system in any of those five entities, if—

(A)

each such contract is available for public inspection in the offices of the cable systems involved, and a copy of such contract is filed, within thirty days after such contract is entered into, with the Copyright Office (which Office shall make each such contract available for public inspection);

(B)

the cable system to which the videotape is transferred complies with paragraph (1)(A), (B), (C)(i), (iii), and (iv), and (D) through (F); and

(C)

such system provides a copy of the affidavit required to be made in accordance with paragraph (1)(D) to each cable system making a previous nonsimultaneous transmission of the same videotape.

(3)

This subsection shall not be construed to supersede the exclusivity protection provisions of any existing agreement, or any such agreement hereafter entered into, between a cable system and a television broadcast station in the area in which the cable system is located, or a network with which such station is affiliated.

(4)

As used in this subsection, the term “videotape” means the reproduction of the images and sounds of a program or programs broadcast by a television broadcast station licensed by the Federal Communications Commission, regardless of the nature of the material objects, such as tapes or films, in which the reproduction is embodied.

(f)Definitions.—

As used in this section, the following terms mean the following:

(1)Primary transmission.—

A “primary transmission” is a transmission made to the public by a transmitting facility whose signals are being received and further transmitted by a secondary transmission service, regardless of where or when the performance or display was first transmitted. In the case of a television broadcast station, the primary stream and any multicast streams transmitted by the station constitute primary transmissions.

(2)Secondary transmission.—

A “secondary transmission” is the further transmitting of a primary transmission simultaneously with the primary transmission, or nonsimultaneously with the primary transmission if by a cable system not located in whole or in part within the boundary of the forty-eight contiguous States, Hawaii, or Puerto Rico: Provided, however, That a nonsimultaneous further transmission by a cable system located in Hawaii of a primary transmission shall be deemed to be a secondary transmission if the carriage of the television broadcast signal comprising such further transmission is permissible under the rules, regulations, or authorizations of the Federal Communications Commission.

(3)Cable system.—

A “cable system” is a facility, located in any State, territory, trust territory, or possession of the United States, that in whole or in part receives signals transmitted or programs broadcast by one or more television broadcast stations licensed by the Federal Communications Commission, and makes secondary transmissions of such signals or programs by wires, cables, microwave, or other communications channels to subscribing members of the public who pay for such service. For purposes of determining the royalty fee under subsection (d)(1), two or more cable systems in contiguous communities under common ownership or control or operating from one headend shall be considered as one system.

(4)Local service area of a primary transmitter.—

The “local service area of a primary transmitter”, in the case of both the primary stream and any multicast streams transmitted by a primary transmitter that is a television broadcast station, comprises the area where such primary transmitter could have insisted upon its signal being retransmitted by a cable system pursuant to the rules, regulations, and authorizations of the Federal Communications Commission in effect on April 15, 1976, or such station’s television market as defined in section 76.55(e) of title 47, Code of Federal Regulations (as in effect on September 18, 1993), or any modifications to such television market made, on or after September 18, 1993, pursuant to section 76.55(e) or 76.59 of title 47, Code of Federal Regulations, or within the noise-limited contour as defined in 73.622(e)(1) of title 47, Code of Federal Regulations, or in the case of a television broadcast station licensed by an appropriate governmental authority of Canada or Mexico, the area in which it would be entitled to insist upon its signal being retransmitted if it were a television broadcast station subject to such rules, regulations, and authorizations. In the case of a low power television station, as defined by the rules and regulations of the Federal Communications Commission, the “local service area of a primary transmitter” comprises the designated market area, as defined in section 122(j)(2)(C), that encompasses the community of license of such station and any community that is located outside such designated market area that is either wholly or partially within 35 miles of the transmitter site or, in the case of such a station located in a standard metropolitan statistical area which has one of the 50 largest populations of all standard metropolitan statistical areas (based on the 1980 decennial census of population taken by the Secretary of Commerce), wholly or partially within 20 miles of such transmitter site. The “local service area of a primary transmitter”, in the case of a radio broadcast station, comprises the primary service area of such station, pursuant to the rules and regulations of the Federal Communications Commission.

(5)Distant signal equivalent.—

(A)In general.—

Except as provided under subparagraph (B), a “distant signal equivalent”—

(i)

is the value assigned to the secondary transmission of any non-network television programming carried by a cable system in whole or in part beyond the local service area of the primary transmitter of such programming; and

(ii)

is computed by assigning a value of one to each primary stream and to each multicast stream (other than a simulcast) that is an independent station, and by assigning a value of one-quarter to each primary stream and to each multicast stream (other than a simulcast) that is a network station or a noncommercial educational station.

(B)Exceptions.—

The values for independent, network, and noncommercial educational stations specified in subparagraph (A) are subject to the following:

(i)

Where the rules and regulations of the Federal Communications Commission require a cable system to omit the further transmission of a particular program and such rules and regulations also permit the substitution of another program embodying a performance or display of a work in place of the omitted transmission, or where such rules and regulations in effect on the date of the enactment of the Copyright Act of 1976 2 permit a cable system, at its election, to effect such omission and substitution of a nonlive program or to carry additional programs not transmitted by primary transmitters within whose local service area the cable system is located, no value shall be assigned for the substituted or additional program.

(ii)

Where the rules, regulations, or authorizations of the Federal Communications Commission in effect on the date of the enactment of the Copyright Act of 1976 ² permit a cable system, at its election, to omit the further transmission of a particular program and such rules, regulations, or authorizations also permit the substitution of another program embodying a performance or display of a work in place of the omitted transmission, the value assigned for the substituted or additional program shall be, in the case of a live program, the value of one full distant signal equivalent multiplied by a fraction that has as its numerator the number of days in the year in which such substitution occurs and as its denominator the number of days in the year.

(iii)

In the case of the secondary transmission of a primary transmitter that is a television broadcast station pursuant to the late-night or specialty programming rules of the Federal Communications Commission, or the secondary transmission of a primary transmitter that is a television broadcast station on a part-time basis where full-time carriage is not possible because the cable system lacks the activated channel capacity to retransmit on a full-time basis all signals that it is authorized to carry, the values for independent, network, and noncommercial educational stations set forth in subparagraph (A), as the case may be, shall be multiplied by a fraction that is equal to the ratio of the broadcast hours of such primary transmitter retransmitted by the cable system to the total broadcast hours of the primary transmitter.

(iv)

No value shall be assigned for the secondary transmission of the primary stream or any multicast streams of a primary transmitter that is a television broadcast station in any community that is within the local service area of the primary transmitter.

(6)Network station.—

(A)Treatment of primary stream.—

The term “network station” shall be applied to a primary stream of a television broadcast station that is owned or operated by, or affiliated with, one or more of the television networks in the United States providing nationwide transmissions, and that transmits a substantial part of the programming supplied by such networks for a substantial part of the primary stream’s typical broadcast day.

(B)Treatment of multicast streams.—

The term “network station” shall be applied to a multicast stream on which a television broadcast station transmits all or substantially all of the programming of an interconnected program service that—

(i)

is owned or operated by, or affiliated with, one or more of the television networks described in subparagraph (A); and

(ii)

offers programming on a regular basis for 15 or more hours per week to at least 25 of the affiliated television licensees of the interconnected program service in 10 or more States.

(7)Independent station.—

The term “independent station” shall be applied to the primary stream or a multicast stream of a television broadcast station that is not a network station or a noncommercial educational station.

(8)Noncommercial educational station.—

The term “noncommercial educational station” shall be applied to the primary stream or a multicast stream of a television broadcast station that is a noncommercial educational broadcast station as defined in section 397 of the Communications Act of 1934, as in effect on the date of the enactment of the Satellite Television Extension and Localism Act of 2010.

(9)Primary stream.—

A “primary stream” is—

(A)

the single digital stream of programming that, before June 12, 2009, was substantially duplicating the programming transmitted by the television broadcast station as an analog signal; or

(B)

if there is no stream described in subparagraph (A), then the single digital stream of programming transmitted by the television broadcast station for the longest period of time.

(10)Primary transmitter.—

A “primary transmitter” is a television or radio broadcast station licensed by the Federal Communications Commission, or by an appropriate governmental authority of Canada or Mexico, that makes primary transmissions to the public.

(11)Multicast stream.—

A “multicast stream” is a digital stream of programming that is transmitted by a television broadcast station and is not the station’s primary stream.

(12)Simulcast.—

A “simulcast” is a multicast stream of a television broadcast station that duplicates the programming transmitted by the primary stream or another multicast stream of such station.

(13)Subscriber; subscribe.—

(A)Subscriber.—

The term “subscriber” means a person or entity that receives a secondary transmission service from a cable system and pays a fee for the service, directly or indirectly, to the cable system.

(B)Subscribe.—

The term “subscribe” means to elect to become a subscriber.

Source credit: (Pub. L. 94–553, title I, § 101, Oct. 19, 1976, 90 Stat. 2550; Pub. L. 99–397, §§ 1, 2(a), (b), Aug. 27, 1986, 100 Stat. 848; Pub. L. 100–667, title II, § 202(1), Nov. 16, 1988, 102 Stat. 3949; Pub. L. 101–318, § 3(a), July 3, 1990, 104 Stat. 288; Pub. L. 103–198, § 6(a), Dec. 17, 1993, 107 Stat. 2311; Pub. L. 103–369, § 3, Oct. 18, 1994, 108 Stat. 3480; Pub. L. 104–39, § 5(b), Nov. 1, 1995, 109 Stat. 348; Pub. L. 106–113, div. B, § 1000(a)(9) [title I, § 1011(a)(1), (2), (b)(1)], Nov. 29, 1999, 113 Stat. 1536, 1501A–543; Pub. L. 108–419, § 5(a), Nov. 30, 2004, 118 Stat. 2361; Pub. L. 108–447, div. J, title IX [title I, § 107(b)], Dec. 8, 2004, 118 Stat. 3406; Pub. L. 109–303, § 4(a), Oct. 6, 2006, 120 Stat. 1481; Pub. L. 110–229, title VIII, § 807, May 8, 2008, 122 Stat. 874; Pub. L. 110–403, title II, § 209(a)(2), Oct. 13, 2008, 122 Stat. 4264; Pub. L. 111–175, title I, § 104(a)(1), (b), (c), (e), (g), May 27, 2010, 124 Stat. 1231, 1235, 1238; Pub. L. 113–200, title II, §§ 201(1), 203, Dec. 4, 2014, 128 Stat. 2066, 2067.)

history & why it existsrecord from the source credit

1976Enacted · Pub. L. 94-553 · 90 Stat. 2550
1986Amended · Pub. L. 99-397 · 100 Stat. 848
1988Amended · Pub. L. 100-667 · 102 Stat. 3949
1990Amended · Pub. L. 101-318 · 104 Stat. 288
1993Amended · Pub. L. 103-198 · 107 Stat. 2311
1994Amended · Pub. L. 103-369 · 108 Stat. 3480
1995Amended · Pub. L. 104-39 · 109 Stat. 348
1999Amended · Pub. L. 106-113 · 113 Stat. 1536, 1501
2004Amended · Pub. L. 108-419 · 118 Stat. 2361
2004Amended · Pub. L. 108-447 · 118 Stat. 3406
2006Amended · Pub. L. 109-303 · 120 Stat. 1481
2008Amended · Pub. L. 110-229 · 122 Stat. 874
2008Amended · Pub. L. 110-403 · 122 Stat. 4264
2010Amended · Pub. L. 111-175 · 124 Stat. 1231, 1235, 1238
2014Amended · Pub. L. 113-200 · 128 Stat. 2066, 2067

A history note hasn’t been published yet. The record shows enactment by Pub. L. 94-553 on 1976-10-19.

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