Definition Edit

An ephemeral recording is a

[r]eproduction of a work produced solely for the purpose of a transmission of the work by an entity legally entitled to publicly perform the work.[1]

Overview Edit

Section 112 of the Copyright Act provides that it is not an infringement of copyright for a "transmitting organization" that has the right to transmit to the public a performance or display of a work "to make no more than one copy or phonorecord of a particular transmission program embodying the performance or display" under certain conditions.[2] This limitation on the copyright owner's reproduction right is applicable only if:

(1) the copy or phonorecord is retained and used solely by the transmitting organization that made it, and no further copies or phonorecords are reproduced from it; and

(2) the copy or phonorecord is used solely for the transmitting organization's own transmissions within its local service area, or for purposes of archival preservation or security; and

(3) unless preserved exclusively for archival purposes, the copy or phonorecord is destroyed within six months from the date the transmission program was first transmitted to the public.[3]

Sections 111 and 119 are compulsory licensing provisions that allow cable systems and satellite operators to retransmit copyrighted programming without infringement liability if they pay a statutory licensing fee (which is then distributed among the copyright owners of the programming retransmitted).[4] A compulsory license under Section 111 is only available to a "cable system," which is defined as "a facility . . . that in whole or in part receives signals transmitted or programs broadcast by one or more television broadcast stations. . . ." A compulsory license under Section 111 generally would not be available with respect to Internet-based transmissions because case law and regulations make clear that the term "cable system" does not encompass facilities such as those used for computer network transmissions.[5] Similarly, the compulsory license under Section 119 would not be available unless the transmitting entity qualified as a "satellite carrier" and met the other statutory criteria.[6] Compulsory licenses are also available for the public performance of nondramatic musical works by means of jukeboxes,[7] for the use of certain works in connection with noncommercial broadcasting,[8] and for the reproduction and distribution of nondramatic musical works in the course of making and distributing phonorecords of such works.[9]


  1. Bonneville Int’l Corp. v. Peters, 153 F. Supp. 2d 763, 769 (E.D. Pa. 2001).
  2. See 17 U.S.C. §112(a).
  3. Id.
  4. See id. §§111, 119. These provisions are referred to as "compulsory licenses" because under such provisions, the copyright owners are compelled to grant the licenses. No license agreements are signed and the terms of such licenses are set forth in the statute; the copyright owner cannot object to the use of the work and must be satisfied with the license fees collected under the statute, which are distributed among all of the affected copyright owners by arbitrators impaneled by the Librarian of Congress.
  5. The Copyright Office issued a regulation in 1992 stating that a cable system is a facility that both receives and transmits signals from within the same state. See 37 C.F.R. § 201.17(k) (1994). This ruling makes clear that Section 111 should not be applicable to any entities other than community-based cable systems. Moreover, in Satellite Broadcast Networks, Inc. v. Oman, 17 F.3d 344 (11th Cir.), cert. denied, 513 U.S. 823 (1994), the 11th Circuit upheld the regulation, finding it valid, enforceable and to be used by courts when determining whether a facility qualifies as a cable system. Since facilities used to transmit works through the Internet will generally be inherently capable of receiving and transmitting outside any particular state, these facilities will not qualify for the cable compulsory license.
  6. A "satellite carrier" is defined as "an entity that uses facilities of a satellite service licensed by the Federal Communications Commission to establish and operate a channel of communications for point-to-multipoint distribution of television station signals . . . ." See 17 U.S.C. §119(d)(6). Unless the Internet transmission occurs through a satellite service licensed by the FCC for the statutorily prescribed purposes, the compulsory license provisions would not be applicable.
  7. See id. §116. This compulsory license may only be invoked if private negotiations fail to produce a consensual license.
  8. See id. §118.
  9. See id. §115.

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