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§ 112. Limitations on exclusive rights:
Ephemeral recordings

Section 112(b) expressly allows a nonprofit institution that makes a transmission containing a display or performance allowed under 110(2) to make no more than thirty copies of such transmission, if: (1) no further copies are made from those copies, and (2) those copies are destroyed within seven years after the date of the first transmission, except one copy may be preserved for archival purposes.

Keep in mind that this provision applies only to Section 110(2) situations: transmissions that include only displays of works or performances of non-dramatic literary or musical works.

If the transmission does not include anyone else's copyrighted materials, then the right to duplicate the tapes will be determined solely by the university and the individual faculty member. If the transmission includes works beyond those allowed under Section 110(2), the right to make copies will depend on either a fair use analysis or a license agreement with the owner of the copyright to the included works.

If Section 112(b) applies, the House Report details that the thirty copies may be used for future transmissions by the original source, or they may be exchanged with other broadcasters for their transmission.

A practical procedure for implementing this provision would be to number the copies of the tapes in succession from 1 to 30. Each tape should be labeled to indicate its place of origin and date of first transmission. The label should, of course, include other information about the tape's content and copyright status.

Last Updated: March 6, 2006

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