Part 21

As noted previously, the process of researching, drafting, debating, then finally replacing the 1909 Copyright Act stretched all the way from 1955 to 1976. In 1967, Barbara Ringer of the Copyright Office wrote the Senate copyright subcommittee that “there is no doubt in my mind that recorded performances represent the ‘writings of an author’ in the Constitutional sense, and are as fully creative and worthy of copyright protection as translations, arrangements or any other class of derivative works.”

However, by the time the second draft of the new legislation was issued in early 1975, the question was no longer if a fee system for the “performance” (sound recording) aspect of phonorecords would be added to the existing composer-based “mechanical rights” system, but merely how much the existing composer-based fees would be adjusted. Congress eventually kicked the can down the road on performance rights to 1978, authorizing a Copyright Office study on the matter.

On the other hand, the situation as to whether sound recordings would be made copyright-eligible was much different. Phonorecords would now comport to the international standards for all copyrightable works—they would be a unified creative product, no longer split between a “composition” and a “sound recording.” Moreover, because formalities such as renewal, filing and marking were now seen as merely “traps for the unwary,” all creative works, not just music, would be automatically copyrighted at the moment they were affixed to a tangible medium. While registering a work made it much easier for an author to prove originality, and often entitled her to seek enhanced damages in court, it was no longer a mandatory precondition to copyright. Finally, the copyright term was changed from a fixed number of years to one based on the author’s life (at the time, life plus 50 years).

To some degree, the “unity” concept allowed Congress to circumvent the problems of performers’ rights. Actually, the trend had started under the 1972 interim revisions. It had allowed an applicant to submit either a phonorecord or sheet music to register for composer’s copyrights. That meant an artist could improvise a tune, record it, and send it in. When it was played on a radio station, he could then receive BMI or SESAC composer’s royalties. (My understanding is that ASCAP still required sheet music copyrighting for several more years.)

Under the new 1976 Act a musician could do the same thing. The only difference was they now had a choice of sending in sheet music and a Form E to register a printed composition, or a cassette tape and Form PA or PAU to register a basic non-dramatic musical work, which protected the composition/sound recording unity. Provided the musician wasn’t playing someone else’s tune, he could list himself as both the composer and performer and receive composer’s royalties for airplay. It wasn’t a great system for musicians, and it was widely abused by producers and managers, who often added themselves as co-composer without the artist’s knowledge, but it was better than the pre-1972 setup.

Two sections of the 1976 Act, taken together, justify a close look. These are section 301 and section 303. Section 301 started life as a fairly standard “boilerplate” preemption provision that said that if the copyright code covered a given subject, no state law could conflict with it. Section 303 was a “sweeping” provision intended to bring all older works under the umbrella of federal copyright, giving them whatever copyright duration they would be eligible for if they came into being on the day the Act was enacted, or if all else failed, until the end of 2027 (later extended to 2047). After eleven years of draft bills and mark-ups, section 301 was changed at the last minute to do some fairly weird legal things affecting only one category of works – pre-1972 sound recordings.

To be continued…