chapter 8 shall establish fees for the retransmission of network
stations and superstations that most clearly represent the fair market value of secondary transmissions. In determining the fair market value, the panel shall base its decision on economic, competitive, and programming information presented by the parties, including-
(i) the competitive environment in which such programming is distributed, the cost of similar signals in similar private and compulsory license marketplaces, and any special features and conditions of the retransmission marketplace;
(ii) the economic impact of such fees on copyright owners and satellite carriers; and
(iii) the impact on the continued availability of secondary transmissions to the public.
(C) Period during which decision of arbitration panel or order of librarian effective. The obligation to pay the royalty fee established under a determination which-
(i) is made by a copyright arbitration royalty panel in an arbitration proceeding under this paragraph and is adopted by the Librarian of Congress under section 802(f), or
(ii) is established by the Librarian of Congress under section 802(f), shall become effective as provided in section 802(g ), or July 1, 1997, whichever is later.
(D) Persons subject to royalty fee. The royalty fee referred to in subparagraph (C) shall be binding on all satellite carriers, distributors, and copyright owners, who are not party to a voluntary agreement filed with the Copyright Office under paragraph (2).
(4) Reduction. [62]-
(A) Superstation. The rate of the royalty fee in effect on January 1, 1998, payable in each case under subsection (b)(1)(B)(i) shall be reduced by 30 percent.
(B) Network and public broadcasting satellite feed. The rate of the royalty fee in effect on January 1, 1998, payable under subsection (b) (1)(B)(ii) shall be reduced by 45 percent.
(5) Public broadcasting service as agent. For purposes of section 802, with respect to royalty fees paid by satellite carriers for retransmitting the Public Broadcasting Service satellite feed, the Public Broadcasting Service shall be the agent for all public television copyright claimants and all Public Broadcasting Service member stations. [63]
(d) Definitions. As used in this section-
(1) Distributor. The term "distributor" means an entity which contracts to distribute secondary transmissions from a satellite carrier and, either as a single channel or in a package with other programming, provides the secondary transmission either directly to individual subscribers for private home viewing or indirectly through other program distribution entities.
(2) Network station. The term "network station" means-
(A) a television broadcast station, including any translator station or terrestrial satellite station that rebroadcasts all or substantially all of the programming broadcast by a network station, that is owned or operated by, or affiliated with, one or more of the television networks in the United States which offer an interconnected program service on a regular basis for 15 or more hours per week to at least 25 of its affiliated television licensees in 10 or more States; or
(B) a noncommercial educational broadcast station (as defined in section 397 of the Communications Act of 1934).
(3) Primary network station. The term "primary network station" means a network station that broadcasts or rebroadcasts the basic programming service of a particular national network.
(4) Primary transmission. The term "primary transmission" has the meaning given that term in section 111(f) of this title.
(5) Private home viewing. The term "private home viewing" means the viewing, for private use in a household by means of satellite reception equipment which is operated by an individual in that household and which serves only such household, of a secondary transmission delivered by a satellite carrier of a primary transmission of a television station licensed by the Federal Communications Commission.
(6) Satellite carrier. The term "satellite carrier" means an entity that uses the facilities of a satellite or satellite service licensed by the Federal Communications Commission and operates in the Fixed-Satellite Service under part 25 of title 47 of the Code of Federal Regulations or the Direct Broadcast Satellite Service under part 100 of title 47 of the Code of Federal Regulations to establish and operate a channel of communications for point-to-multipoint distribution of television station signals, and that owns or leases a capacity or service on a satellite in order to provide such point-to-multipoint distribution, except to the extent that such entity provides such distribution pursuant to tariff under the Communications Act of 1934, other than for private home viewing.
(7) Secondary transmission. The term "secondary transmission" has the meaning given that term in section 111(f) of this title.
(8) Subscriber. The term "subscriber" means an individual who receives a secondary transmission service for private home viewing by means of a secondary transmission from a satellite carrier and pays a fee for the service, directly or indirectly, to the satellite carrier or to a distributor.
(9) Superstation. The term "superstation"-
(A) means a television broadcast station, other than a network station, licensed by the Federal Communications Commission that is secondarily transmitted by a satellite carrier; and
(B) except for purposes of computing the royalty fee, includes the Public Broadcasting Service satellite feed. [64]
(10) Unserved household. The term "unserved household", with respect to a particular television network, means a household that-
(A) cannot receive, through the use of a conventional, stationary, outdoor rooftop receiving antenna, an over-the-air signal of a primary network station affiliated with that network of Grade B intensity as defined by the Federal Communications Commission under section 73.683(a) of title 47 of the Code of Federal Regulations, as in effect on January 1, 1999;
(B) is subject to a waiver granted under regulations established under section 339(c)(2) of the Communications Act of 1934;
(C) is a subscriber to whom subsection (e) applies;
(D) is a subscriber to whom subsection (a)(11) applies; or
(E) is a subscriber to whom the exemption under subsection (a)(2)(B) (iii) applies.
(11) Local market. The term "local market" has the meaning given such term under section 122(j).
(12) Public broadcasting service satellite feed. The term "Public Broadcasting Service satellite feed" means the national satellite feed distributed and designated for purposes of this section by the Public Broadcasting Service consisting of educational and informational programming intended for private home viewing, to which the Public Broadcasting Service holds national terrestrial broadcast rights. [65]
(e) Moratorium on Copyright Liability. Until December 31, 2004, a subscriber who does not receive a signal of Grade A intensity (as defined in the regulations of the Federal Communications Commission under section 73.683(a) of title 47 of the Code of Federal Regulations, as in effect on January 1, 1999, or predicted by the Federal Communications Commission using the Individual Location Longley-Rice methodology described by the Federal Communications Commission in Docket No. 98-201) of a local network television broadcast station shall remain eligible to receive signals of network stations affiliated with the same network, if that subscriber had satellite service of such network signal terminated after July 11, 1998, and before October 31, 1999, as required by this section, or received such service on October 31, 1999.
Section 120. Scope of exclusive rights in architectural works [66]
(a) Pictorial Representations Permitted. The copyright in an architectural work that has been constructed does not include the right to prevent the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work, if the building in which the work is embodied is located in or ordinarily visible from a public place.
(b) Alterations to and Destruction of Buildings. Notwithstanding the provisions of section 106(2), the owners of a building embodying an architectural work may, without the consent of the author or copyright owner of the architectural work, make or authorize the making of alterations to such building, and destroy or authorize the destruction of such building.
Section 121. Limitations on exclusive rights: reproduction for blind or other people with disabilities [67]
(a) Notwithstanding the provisions of section 106, it is not an infringement of copyright for an authorized entity to reproduce or to distribute copies or phonorecords of a previously published, nondramatic literary work if such copies or phonorecords are reproduced or distributed in specialized formats exclusively for use by blind or other persons with disabilities.
(b)(1) Copies or phonorecords to which this section applies shall
(A) not be reproduced or distributed in a format other than a specialized format exclusively for use by blind or other persons with disabilities;
(B) bear a notice that any further reproduction or distribution in a format other than a specialized format is an infringement; and
(C) include a copyright notice identifying the copyright owner and the date of the original publication.
(2) The provisions of this subsection shall not apply to standardized, secure, or norm-referenced tests and related testing material, or to computer programs, except the portions thereof that are in conventional human language (including descriptions of pictorial works) and displayed to users in the ordinary course of using the computer programs.
(c) For purposes of this section, the term-
(1) "authorized entity" means a nonprofit organization or a governmental agency that has a primary mission to provide specialized services relating to training, education, or adaptive reading or information access needs of blind or other persons with disabilities;
(2) "blind or other persons with disabilities" means individuals who are eligible or who may qualify in accordance with the Act entitled "An Act to provide books for the adult blind", approved March 3, 1931 (2 U.S.C. 135a; 46 Stat. 1487) to receive books and other publications produced in specialized formats; and
(3) "specialized formats" means braille, audio, or digital text which is exclusively for use by blind or other persons with disabilities.
Section 122. Limitations on exclusive rights; secondary transmissions by satellite carriers within local markets [68]
(a) Secondary Transmissions of television Broadcast Stations by Satellite Carriers. A secondary transmission of a performance or display of a work embodied in a primary transmission of a television broadcast station into the station's local market shall be subject to statutory licensing under this section if-
(1) the secondary transmission is made by a satellite carrier to the public;
(2) with regard to secondary transmissions, the satellite carrier is in compliance with the rules, regulations, or authorizations of the Federal Communications Commission governing the carriage of television broadcast station signals; and
(3) the satellite carrier makes a direct or indirect charge for the secondary transmission to-
(A) each subscriber receiving the secondary transmission; or
(B) a distributor that has contracted with the satellite carrier for direct or indirect delivery of the secondary transmission to the public.
(b) Reporting Requirements.-
(1) Initial lists. A satellite carrier that makes secondary transmissions of a primary transmission made by a network station under subsection (a) shall, within 90 days after commencing such secondary transmissions, submit to the network that owns or is affiliated with the network station a list identifying (by name in alphabetical order and street address, including county and zip code) all subscribers to which the satellite carrier makes secondary transmissions of that primary transmission under subsection (a).
(2) Subsequent lists. After the list is submitted under paragraph (1), the satellite carrier shall, on the 15th of each month, submit to the network a list identifying (by name in alphabetical order and street address, including county and zip code) any subscribers who have been added or dropped as subscribers since the last submission under this subsection.
(3) Use of subscriber information. Subscriber information submitted by a satellite carrier under this subsection may be used only for the purposes of monitoring compliance by the satellite carrier with this section.
(4) Requirements of networks. The submission requirements of this subsection shall apply to a satellite carrier only if the network to which the submissions are to be made places on file with the Register of Copyrights a document identifying the name and address of the person to whom such submissions are to be made. The Register of Copyrights shall maintain for public inspection a file of all such documents.
(c) No Royalty Fee Required. A satellite carrier whose secondary transmissions are subject to statutory licensing under subsection (a) shall have no royalty obligation for such secondary transmissions.
(d) Noncompliance with Reporting and Regulatory Requirements. Notwithstanding subsection (a), the willful or repeated secondary transmission to the public by a satellite carrier into the local market of a television broadcast station of a primary transmission embodying a performance or display of a work made by that television broadcast station is actionable as an act of infringement under section 501, and is fully subject to the remedies provided under sections 502 through 506 and 509, if the satellite carrier has not complied with the reporting requirements of subsection (b) or with the rules, regulations, and authorizations of the Federal Communications Commission concerning the carriage of television broadcast signals.
(e) Willful Alterations. Notwithstanding subsection (a), the secondary transmission to the public by a satellite carrier into the local market of a television broadcast station of a performance or display of a work embodied in a primary transmission made by that television broadcast station is actionable as an act of infringement under section 501, and is fully subject to the remedies provided by sections 502 through 506 and sections 509 and 510, if the content of the particular program in which the performance or display is embodied, or any commercial advertising or station announcement transmitted by the primary transmitter during, or immediately before or after, the transmission of such program, is in any way willfully altered by the satellite carrier through changes, deletions, or additions, or is combined with programming from any other broadcast signal.
(f) Violation of territorial Restrictions on Statutory License for television Broadcast Stations.-
(1) Individual violations. The willful or repeated secondary transmission to the public by a satellite carrier of a primary transmission embodying a performance or display of a work made by a television broadcast station to a subscriber who does not reside in that station's local market, and is not subject to statutory licensing under section 119 or a private licensing agreement, is actionable as an act of infringement under section 501 and is fully subject to the remedies provided by sections 502 through 506 and 509, except that-
(A) no damages shall be awarded for such act of infringement if the satellite carrier took corrective action by promptly withdrawing service from the ineligible subscriber; and
(B) any statutory damages shall not exceed $5 for such subscriber for each month during which the violation occurred.
(2) Pattern of violations. If a satellite carrier engages in a willful or repeated pattern or practice of secondarily transmitting to the public a primary transmission embodying a performance or display of a work made by a television broadcast station to subscribers who do not reside in that station's local market, and are not subject to statutory licensing under section 119 or a private licensing agreement, then in addition to the remedies under paragraph (1)-
(A) if the pattern or practice has been carried out on a substantially nationwide basis, the court-
(i) shall order a permanent injunction barring the secondary transmission by the satellite carrier of the primary transmissions of that television broadcast station (and if such television broadcast station is a network station, all other television broadcast stations affiliated with such network); and
(ii) may order statutory damages not exceeding $250,000 for each 6-month period during which the pattern or practice was carried out; and
(B) if the pattern or practice has been carried out on a local or regional basis with respect to more than one television broadcast station, the court-
(i) shall order a permanent injunction barring the secondary transmission in that locality or region by the satellite carrier of the primary transmissions of any television broadcast station; and
(ii) may order statutory damages not exceeding $250,000 for each 6-month period during which the pattern or practice was carried out.
(g) Burden of Proof. In any action brought under subsection (f), the satellite carrier shall have the burden of proving that its secondary transmission of a primary transmission by a television broadcast station is made only to subscribers located within that station's local market or subscribers being served in compliance with section 119 or a private licensing agreement.
(h) Geographic Limitations on secondary Transmissions. The statutory license created by this section shall apply to secondary transmissions to locations in the United States.
(i) Exclusivity with Respect to Secondary Transmissions of Broadcast Stations by Satellite to Members of the Public. No provision of section 111 or any other law (other than this section and section 119) shall be construed to contain any authorization, exemption, or license through which secondary transmissions by satellite carriers of programming contained in a primary transmission made by a television broadcast station may be made without obtaining the consent of the copyright owner.
(j) Definitions. In this section-
(1) Distributor. The term "distributor" means an entity which contracts to distribute secondary transmissions from a satellite carrier and, either as a single channel or in a package with other programming, provides the secondary transmission either directly to individual subscribers or indirectly through other program distribution entities.
(2) Local market.-
(A) In general. The term "local market", in the case of both commercial and noncommercial television broadcast stations, means the designated market area in which a station is located, and-
(i) in the case of a commercial television broadcast station, all commercial television broadcast stations licensed to a community within the same designated market area are within the same local market; and
(ii) in the case of a noncommercial educational television broadcast station, the market includes any station that is licensed to a community within the same designated market area as the noncommercial educational television broadcast station.
(B) County of license. In addition to the area described in subparagraph (A), a station's local market includes the county in which the station's community of license is located.
(C) Designated market area. For purposes of subparagraph (A), the term "designated market area" means a designated market area, as determined by Nielsen Media Research and published in the 1999-2000 Nielsen Station Index Directory and Nielsen Station Index United States Television Household Estimates or any successor publication.
(3) Network station; satellite carrier; secondary transmission. The terms "network station", "satellite carrier", and "secondary transmission" have the meanings given such terms under section 119(d).
(4) Subscriber. The term "subscriber" means a person who receives a secondary transmission service from a satellite carrier and pays a fee for the service, directly or indirectly, to the satellite carrier or to a distributor.
(5) Television broadcast station. The term "television broadcast station"-
(A) means an over-the-air, commercial or noncommercial television broadcast station licensed by the Federal Communications Commission under subpart E of part 73 of title 47, Code of Federal Regulations, except that such term does not include a low-power or translator television station; and
(B) includes a television broadcast station licensed by an appropriate governmental authority of Canada or Mexico if the station broadcasts primarily in the English language and is a network station as defined in section 119(d)(2)(A).