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…