Part 25

And finally, the third sentence reads:

Notwithstanding the provisions of section 303, no sound recording fixed before February 15, 1972 shall be subject to copyright under this title before, on or after February 15, 2047.

This sentence does one, and maybe two, things. The first is obvious: had it not been inserted, pre-1972 phonorecords would have been swept up into federal copyright by section 303 along with all older, pre-1978 writings. Now, they will remain in the same limbo they have been in since the 1909 Copyright Act.

But is there a second effect? For paragraph (a) to be effective, a work “must come within the subject matter of copyright as specified by sections 102 and 103.” This sentence says that “no sound recording . . . shall be subject to copyright . . . after February 15, 2047.” Is it possible that this third sentence removes pre-1972 phonorecords from “the subject matter of copyright” and therefore makes the (a) paragraph inapplicable? If so, the net effect would be that on February 15, 2047 [now, 2067], absolutely nothing changes. Pre-1972 phonorecords would remain in state-law copyright in perpetuity.

My conclusion is “it’s possible, but probably not.” The 1976 Copyright Act legislative commentary on subsection 301(a) notes that “as long as a work fits within one of the general subject matter categories of section 102 and 103, the bill prevents the States from protecting it, even if it fails to achieve Federal copyright.” There are also a small, but growing, number of cases (none music-related) in which a state misappropriation law was found to be preempted because the general area was covered under section 102, even through the specific object was not copyrightable.

This sounds bizarre, but it is actually necessary. Let’s take an example that I have used before in my history of discographies, the copying of pure facts. Straight facts cannot be copyrighted. Provided that telephone company “B” doesn’t just photocopy pages out of telephone company “A”s phone books, company B can extract the names and numbers out of A’s phone book for its own use, because pure facts are, in themselves, uncopyrightable due to lack of originality.

On the other hand, phone books as a whole are “original works of authorship fixed in a tangible medium,” and thus fall within the subject matter covered by section 102. Therefore, a state cannot step into the void left by federal law and prohibit the manual extraction of factual data from phone books. It’s easy to think up lots of other examples of a state protecting a copyrighted item that has fallen into the public domain or that is insufficiently original to warrant federal copyright (a big problem with toys and games) in order to protect a home-grown industry. In fact, the fear of many copyright observers (including me) is that Judge Graffeo’s decision in Capitol v. Naxos IV is a preemptive attempt to get around the problem of federal non-copyrightability to create an economic recruitment tool for music and software firms: come to the Empire State to do business and we’ll cover your products against copying in a way that the federal copyright code can’t reach. One wonders what would have happened if Naxos had been based in New York City and not Nashville.

To be continued…

Part 24

The second sentence reads:

The preemptive provisions of subsection (a) shall apply to any such rights and remedies pertaining to any cause of action arising from undertakings commenced on or after February, 15, 2047.

This implies that the provisions of sentence one sunset on February, 2047 [now 2067]. But read it again: it does not do this. It does, on the other hand, “switch on” the preemptive powers of subsection (a). At the same time, the very broad preemption in sentence one does “switch off” (under its own language), but only to the minimum extent necessary to accommodate the preemptive powers of subsection (a). It is silent as to whether all the exclusive rights outside the general scope of copyright as defined by section 106 still remain. Two important sections of the Copyright Act that define rights in sound recordings are not located in section 106: section 114 (“scope of exclusive rights in sound recordings”) and section 115 (“compulsory license for making and distributing phonorecords”). These are discussed below.        

The overall effect is that those state-law powers equal to section 106 (“subject matter of copyright in general”) protections will be preempted beginning in 2047 [now, 2067]. Sound recording are explicitly listed among those things that fall within the “subject of copyright as specified by sections 102 and 103.”

Also uncertain is sentence two’s silence as to paragraph 301(b). Is it also invoked? It was specifically added at the time the 1976 Copyright Act was drafted to allow states to continue to prosecute “palming off” offenses such as deceptive trade practices and false labeling. The failure to “switch it on” at the same time as subsection (a) would seem to imply that the general intent at one time was originally to preempt state activities absolutely – that is, to create a quasi-public domain status for pre-1972 records. (Technically, they cannot be moved into the public domain because they never had “in copyright” status.)

But here is where we bump up against the conflict between the first sentence that blocks the application of federal law against a corresponding state law, regardless of where within in the Copyright Act the law may be found, and the second sentence that only relaxes that block, allowing federal preemption, if a state law corresponds to a copyright power in section 106. But the two important sections, section 114, which limits a sound recording owner’s normal copyrights in favor of radio broadcasters, and section 115, which limits a composer’s rights against duplicators, substituting instead the mechanical royalties provisions, creates a conflict. Both are outside of section 106! Does that mean that a state will still have to power to invoke common-law or statutory-law equivalents of sections 114 or 115 after 2067? If so, the result would be a long way from “the equivalent of public domain.”

To be continued…

Part 23

In early 1976, the House version of section 301 was changed. Instead of adding the Senate’s proposed sub-clause (b)(iv), a whole new subsection (c) was added:

(c) With respect to sound recordings fixed before February 15, 1972, any rights or remedies under the common law or statutes of any State shall not be annulled or limited by this title until February 15, 2047. The preemptive provisions of subsection (a) shall apply to any such rights and remedies pertaining to any cause of action arising from undertakings commenced on or after February, 15, 2047. Notwithstanding the provisions of section 303, no sound recording fixed before February 15, 1972 shall be subject to copyright under this title before, on or after February 15, 2047.

As to why they did this, The House legislative report says only that:

…the [House] Committee recognizes that, under recent court decisions, pre-1972 recordings are protected by State statute or common law, and that they should not all be thrown into the public domain instantly upon the coming into effect of the new law. [They are talking here about Sears and Compco.] However, it cannot agree that they should in effect be accorded perpetual protection, as under the Senate amendment, and it has therefore revised clause (4) to establish a future date for the pre-emption to take place.

Frankly, I cannot entirely figure out what they were thinking of. The new paragraph did a lot more than just “establish a future date” for ending federal pre-emption. The explanatory note appears to assume that section 303 (the “sweeping” provision) will not pull pre-1972 phonorecords under the umbrella of federal copyright. I don’t know how they got that idea – given 303’s plain language it would take a vivid imagination to come to the opposite conclusion, and there is nothing in the record to support it.

On the other hand, it is true that Attorney General’s proposed solution of adding a new line item to the Sears/Compco exceptions would probably have thrown federal preemption over them permanently, but that would have been a simple one-line glitch fix.

Let’s take the amended paragraph (c) one sentence at a time:

 With respect to sound recordings fixed before February 15, 1972, any rights or remedies under the common law or statutes of any State shall not be annulled or limited by this title until February 15, 2047.

This overrides paragraph (a), and thus blocks federal preemption, thereby preserving state statutory and common-law remedies for pre-1972 sound recordings. It could have been written to simply disable paragraph (a) by saying that it did not apply to pre-1972 sound recordings, but this isn’t what it does. The preemption here is, in fact, broader in scope than the preemption given in paragraph (a).

Paragraph (a) preempts only those state laws that are “equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106,” that is, the rights conferred by being federally copyrighted. But this sentence prohibits any inhibition of state rights or remedies whatever their source may be within Title 17, the Copyright Code.

This was an important part of Capitol Records v. Naxos IV decision. Judge Graffeo was faced with two conflicting laws in determining whether the English-origin Elgar and Bach recordings were in the public domain in the U.S. The Berne Convention and the Universal Copyright Convention both specified something called the “Rule of the Shorter Term,” which says that the copyright duration in the nation of first publication (England) determines the copyright in all other nations (including the United States), thus making the public domain date 1986. New York State law, on the other hand, says that state common-law copyright lasts until 2067. Judge Graffeo ruled that New York law was superior to the Berne Convention and the Universal Copyright Convention because New York rights and remedies are preserved under section 301(c) of the Copyright Act. The Berne and UCC documents, as international treaties, are empowered through the Copyright Act, but they are not “exclusive rights within the general scope of copyright as specified by section 106,” because they are not American copyrights.

To be continued…