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…