Part 22

            The section 303 “sweeping” clause changed very little between the 1967 first draft bill and the final 1976 product. The final version read:

303. Works created but not published or copyrighted before January 1, 1978

Copyright in a work created before January 1, 1978, but not theretofore in the public domain or copyrighted, subsists from January 1, 1978 and endures for the terms provided by section 302. In no case, however, shall the term of copyright expire before December 31, 2002, and if the work is published on or before December 31, 2002, the term of copyright shall not expire before December 31, 2047.

The copyright durations referred to in section 302 were:

• single artist:  life plus 50 years (now 70)

• groups or works for hire:   75 years from publication (now 95)  OR  100 years from creation (now 120),  whichever is longer

(The original copyright durations were extended by the Term Extension Act of 1998. That is why two dates are listed.)

As you can see, there is nothing in the language of section 303 that mentions pre-1972 phonorecords, which were neither copyrighted, nor in the public domain. Thus, there is every reason to believe that pre-1972 records were planned for inclusion. On January 1, 1978, they would become federally copyrighted, either for the life of their rights owner plus 50 years or (because under the Capitol Records v. Mercury Records decision, they were probably not capable of being “published,” and most were “works for hire” anyway), for 100 years from the date of their creation (now, life plus 75 years or 120 years, respectively).

Section 301 of the new Act was a preemption clause. It was somewhat complicated:

301.(a)   On and after January 1, 1978, all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106 in works of authorship that are fixed in a tangible medium of expression and come within the subject of copyright as specified by sections 102 and 103, whether created before or after that date and whether created before or after that date and whether published or unpublished, are governed exclusively by this title. Thereafter, no person is entitled to any such work under the common law or statutes of any State.

(b)    Nothing in this title annuls or limits any rights or remedies under common or statutes of any State with respect to:

(i) [any material not listed in sections 102 and 103 as subject to copyright]

(ii) [any lawsuit already commenced before January 1, 1978]

(iii) [any state law that is not equivalent to a federal copyright protection]

The (a) subsection was the all-important “preemption” clause. It prohibited the states from enacting their local copyright laws. The (b) subsection was added in response to the Sears and Compco decisions, in which the Supreme Court held that in the absence of copyright or patent law, states could not prohibit product duplication. But remember, the Court also said that it was okay for states to prohibit so-called “palming off” activities. Subsection (b) preserved state powers to regulate these practices.

Fairly late in the process, in mid-1975, the Attorney General’s office voiced the objection that section 301, as written, “could be read as abrogating the antipiracy laws now existing in 29 States relating to pre-February 15, 1972 sound recordings,” and recommended that a new provision be added to specifically exempt pre-1972 sound recordings. In the 1973 Goldstein case, the Supreme Court had declined to comment on whether it believed that California’s anti-music piracy statute fell within the “palming off” exception. Therefore, the AG’s concern was a legitimate one. In the final Senate draft a new subpart (iv) was added to subsection (b):

(iv) sound recordings fixed before February 15, 1972

This is how the Senate-approved version of the bill read. It was sent to the House in December, 1975. Then things got very strange.

To be continued…