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…