(Pub. L. 94–553, title I, § 101,Oct. 19, 1976, 90 Stat. 2548; Pub. L. 98–450, § 2,Oct. 4, 1984, 98 Stat. 1727; Pub. L. 100–617, § 2,Nov. 5, 1988, 102 Stat. 3194; Pub. L. 101–650, title VIII, §§ 802,
803,Dec. 1, 1990, 104 Stat. 5134, 5135; Pub. L. 103–465, title V, § 514(b),Dec. 8, 1994, 108 Stat. 4981; Pub. L. 105–80, § 12(a)(5),Nov. 13, 1997, 111 Stat. 1534; Pub. L. 110–403, title II, § 209(a)(1),Oct. 13, 2008, 122 Stat. 4264.)
Historical and Revision Notes
house report no. 94–1476
Effect on Further Disposition of Copy or Phonorecord.Section
restates and confirms the principle that, where the copyright owner has transferred ownership of a particular copy or phonorecord of a work, the person to whom the copy or phonorecord is transferred is entitled to dispose of it by sale, rental, or any other means. Under this principle, which has been established by the court decisions and section 27 of the present law [section 27 of former title 17], the copyright owner’s exclusive right of public distribution would have no effect upon anyone who owns “a particular copy or phonorecord lawfully made under this title” and who wishes to transfer it to someone else or to destroy it.
Thus, for example, the outright sale of an authorized copy of a book frees it from any copyright control over its resale price or other conditions of its future disposition. A library that has acquired ownership of a copy is entitled to lend it under any conditions it chooses to impose. This does not mean that conditions on future disposition of copies or phonorecords, imposed by a contract between their buyer and seller, would be unenforceable between the parties as a breach of contract, but it does mean that they could not be enforced by an action for infringement of copyright. Under section
however, the owner of the physical copy or phonorecord cannot reproduce or perform the copyrighted work publicly without the copyright owner’s consent.
To come within the scope of section
, a copy or phonorecord must have been “lawfully made under this title,” though not necessarily with the copyright owner’s authorization. For example, any resale of an illegally “pirated” phonorecord would be an infringement, but the disposition of a phonorecord legally made under the compulsory licensing provisions of section
Effect on Display of Copy.Subsection (b) ofsection
deals with the scope of the copyright owner’s exclusive right to control the public display of a particular “copy” of a work (including the original or prototype copy in which the work was first fixed). Assuming, for example, that a painter has sold the only copy of an original work of art without restrictions, would it be possible for him to restrain the new owner from displaying it publicly in galleries, shop windows, on a projector, or on television?
adopts the general principle that the lawful owner of a copy of a work should be able to put his copy on public display without the consent of the copyright owner. As in cases arising under section
, this does not mean that contractual restrictions on display between a buyer and seller would be unenforceable as a matter of contract law.
The exclusive right of public display granted by section
would not apply where the owner of a copy wishes to show it directly to the public, as in a gallery or display case, or indirectly, as through an opaque projector. Where the copy itself is intended for projection, as in the case of a photographic slide, negative, or transparency, the public projection of a single image would be permitted as long as the viewers are “present at the place where the copy is located.”
On the other hand, section
takes account of the potentialities of the new communications media, notably television, cable and optical transmission devices, and information storage and retrieval devices, for replacing printed copies with visual images. First of all, the public display of an image of a copyrighted work would not be exempted from copyright control if the copy from which the image was derived were outside the presence of the viewers. In other words, the display of a visual image of a copyrighted work would be an infringement if the image were transmitted by any method (by closed or open circuit television, for example, or by a computer system) from one place to members of the public located elsewhere.
Moreover, the exemption would extend only to public displays that are made “either directly or by the projection of no more than one image at a time.” Thus, even where the copy and the viewers are located at the same place, the simultaneous projection of multiple images of the work would not be exempted. For example, where each person in a lecture hall is supplied with a separate viewing apparatus, the copyright owner’s permission would generally be required in order to project an image of a work on each individual screen at the same time.
The committee’s intention is to preserve the traditional privilege of the owner of a copy to display it directly, but to place reasonable restrictions on the ability to display it indirectly in such a way that the copyright owner’s market for reproduction and distribution of copies would be affected. Unless it constitutes a fair use under section
, or unless one of the special provisions of section
is applicable, projection of more than one image at a time, or transmission of an image to the public over television or other communication channels, would be an infringement for the same reasons that reproduction in copies would be. The concept of “the place where the copy is located” is generally intended to refer to a situation in which the viewers are present in the same physical surroundings as the copy, even though they cannot see the copy directly.
Effect of Mere Possession of Copy or Phonorecord.Subsection (c) ofsection
qualifies the privileges specified in subsections (a) and (b) by making clear that they do not apply to someone who merely possesses a copy or phonorecord without having acquired ownership of it. Acquisition of an object embodying a copyrighted work by rental, lease, loan, or bailment carries with it no privilege to dispose of the copy under section
or to display it publicly under section
. To cite a familiar example, a person who has rented a print of a motion picture from the copyright owner would have no right to rent it to someone else without the owner’s permission.
Burden of Proof in Infringement Actions. During the course of its deliberations on this section, the Committee’s attention was directed to a recent court decision holding that the plaintiff in an infringement action had the burden of establishing that the allegedly infringing copies in the defendant’s possession were not lawfully made or acquired under section 27 of the present law [section 27 of former title 17]. American International Pictures, Inc. v. Foreman, 400 F.Supp. 928 (S.D.Alabama 1975). The Committee believes that the court’s decision, if followed, would place a virtually impossible burden on copyright owners. The decision is also inconsistent with the established legal principle that the burden of proof should not be placed upon a litigant to establish facts particularly within the knowledge of his adversary. The defendant in such actions clearly has the particular knowledge of how possession of the particular copy was acquired, and should have the burden of providing this evidence to the court. It is the intent of the Committee, therefore, that in an action to determine whether a defendant is entitled to the privilege established by section
and (b), the burden of proving whether a particular copy was lawfully made or acquired should rest on the defendant.
References in Text
The date of the enactment of the Computer Software Rental Amendments Act of 1990, referred to in subsec. (b)(2)(B), is the date of enactment of Pub. L. 101–650
, which was approved Dec. 1, 1990.
The first section of the Clayton Act, referred to in subsec. (b)(3), is classified to section
, Commerce and Trade, and section
, Labor. The term “antitrust laws” is defined in section
Section 5 of the Federal Trade Commission Act, referred to in subsec. (b)(3), is classified to section
2008—Subsec. (b)(4). Pub. L. 110–403
substituted “and 505” for “505, and 509”.
1997—Subsec. (b)(2)(B). Pub. L. 105–80
substituted “Register of Copyrights considers appropriate” for “Register of Copyright considers appropriate”.
1994—Subsec. (a). Pub. L. 103–465
inserted at end “Notwithstanding the preceding sentence, copies or phonorecords of works subject to restored copyright under section
that are manufactured before the date of restoration of copyright or, with respect to reliance parties, before publication or service of notice under section
, may be sold or otherwise disposed of without the authorization of the owner of the restored copyright for purposes of direct or indirect commercial advantage only during the 12-month period beginning on—
“(1) the date of the publication in the Federal Register of the notice of intent filed with the Copyright Office under section
whichever occurs first.”
“(2) the date of the receipt of actual notice served under section
1990—Subsec. (b)(1). Pub. L. 101–650
, § 802(2), added par. (1) and struck out former par. (1) which read as follows: “Notwithstanding the provisions of subsection (a), unless authorized by the owners of copyright in the sound recording and in the musical works embodied therein, the owner of a particular phonorecord may not, for purposes of direct or indirect commercial advantage, dispose of, or authorize the disposal of, the possession of that phonorecord by rental, lease, or lending, or by any other act or practice in the nature of rental, lease, or lending. Nothing in the preceding sentence shall apply to the rental, lease, or lending of a phonorecord for nonprofit purposes by a nonprofit library or nonprofit educational institution.”
Subsec. (b)(2), (3). Pub. L. 101–650
, § 802(1), (2), added par. (2) and redesignated former pars. (2) and (3) as (3) and (4), respectively.
Subsec. (b)(4). Pub. L. 101–650
, § 802(3), added par. (4) and struck out former par. (4) which read as follows: “Any person who distributes a phonorecord in violation of clause (1) is an infringer of copyright under section
of this title and is subject to the remedies set forth in sections
. Such violation shall not be a criminal offense under section
or cause such person to be subject to the criminal penalties set forth in section
Pub. L. 101–650
, § 802(1), redesignated par. (3) as (4).
Subsec. (e). Pub. L. 101–650
, § 803, added subsec. (e).
1988—Subsec. (d). Pub. L. 100–617
substituted “(a) and (c)” for “(a) and (b)” and “copyright” for “coyright”.
1984—Subsecs. (b) to (d). Pub. L. 98–450
added subsec. (b) and redesignated existing subsecs. (b) and (c) as (c) and (d), respectively.
Effective Date of 1990 Amendment
Section 804 of title VIII of Pub. L. 101–650
, as amended by Pub. L. 103–465
, title V, § 511,Dec. 8, 1994, 108 Stat. 4974
, provided that:
“(a) In General.—Subject to subsection (b), this title [amending this section and enacting provisions set out as notes under sections
of this title] and the amendments made in section
[amending this section] shall take effect on the date of the enactment of this Act [Dec. 1, 1990]. The amendment made by section
[amending this section] shall take effect one year after such date of enactment.
“(b) Prospective Application.—Section
, United States Code, as amended by section 802 of this Act, shall not affect the right of a person in possession of a particular copy of a computer program, who acquired such copy before the date of the enactment of this Act [Dec. 1, 1990], to dispose of the possession of that copy on or after such date of enactment in any manner permitted by section
, United States Code, as in effect on the day before such date of enactment.
“(c) Termination.—The amendments made by section
shall not apply to public performances or displays that occur on or after October 1, 1995.”
Effective Date of 1984 Amendment
Section 4 ofPub. L. 98–450
, as amended by Pub. L. 100–617
, § 1,Nov. 5, 1988, 102 Stat. 3194
; Pub. L. 103–182
, title III, § 332,Dec. 8, 1993, 107 Stat. 2114
, provided that:
“(a) The amendments made by this Act [amending this section and section
of this title and enacting provisions set out as a note under section
of this title] shall take effect on the date of the enactment of this Act [Oct. 4, 1984].
“(b) The provisions of section
, United States Code, as added by section 2 of this Act, shall not affect the right of an owner of a particular phonorecord of a sound recording, who acquired such ownership before the date of the enactment of this Act [Oct. 4, 1984], to dispose of the possession of that particular phonorecord on or after such date of enactment in any manner permitted by section
, United States Code, as in effect on the day before the date of the enactment of this Act.”
[Amendment by Pub. L. 103–182
to section 4 ofPub. L. 98–450
, set out above, effective on the date the North American Free Trade Agreement enters into force with respect to the United States [Jan. 1, 1994], see section 335 ofPub. L. 103–182
, set out as an Effective Date of 1993 Amendment note under section
, Commerce and Trade.]
Evaluation of Impact of Copyright Law and Amendments on Electronic Commerce and Technological Development
Pub. L. 105–304
, title I, § 104,Oct. 28, 1998, 112 Stat. 2876
, provided that:
“(a) Evaluation by the Register of Copyrights and the Assistant Secretary for Communications and Information.—The Register of Copyrights and the Assistant Secretary for Communications and Information of the Department of Commerce shall jointly evaluate—
“(1) the effects of the amendments made by this title [enacting chapter
of this title and amending sections
of this title] and the development of electronic commerce and associated technology on the operation of sections
, United States Code; and
“(2) the relationship between existing and emergent technology and the operation of sections
, United States Code.
“(b) Report to Congress.—The Register of Copyrights and the Assistant Secretary for Communications and Information of the Department of Commerce shall, not later than 24 months after the date of the enactment of this Act [Oct. 28, 1998], submit to the Congress a joint report on the evaluation conducted under subsection (a), including any legislative recommendations the Register and the Assistant Secretary may have.”