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…

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…

Part 21

As noted previously, the process of researching, drafting, debating, then finally replacing the 1909 Copyright Act stretched all the way from 1955 to 1976. In 1967, Barbara Ringer of the Copyright Office wrote the Senate copyright subcommittee that “there is no doubt in my mind that recorded performances represent the ‘writings of an author’ in the Constitutional sense, and are as fully creative and worthy of copyright protection as translations, arrangements or any other class of derivative works.”

However, by the time the second draft of the new legislation was issued in early 1975, the question was no longer if a fee system for the “performance” (sound recording) aspect of phonorecords would be added to the existing composer-based “mechanical rights” system, but merely how much the existing composer-based fees would be adjusted. Congress eventually kicked the can down the road on performance rights to 1978, authorizing a Copyright Office study on the matter.

On the other hand, the situation as to whether sound recordings would be made copyright-eligible was much different. Phonorecords would now comport to the international standards for all copyrightable works—they would be a unified creative product, no longer split between a “composition” and a “sound recording.” Moreover, because formalities such as renewal, filing and marking were now seen as merely “traps for the unwary,” all creative works, not just music, would be automatically copyrighted at the moment they were affixed to a tangible medium. While registering a work made it much easier for an author to prove originality, and often entitled her to seek enhanced damages in court, it was no longer a mandatory precondition to copyright. Finally, the copyright term was changed from a fixed number of years to one based on the author’s life (at the time, life plus 50 years).

To some degree, the “unity” concept allowed Congress to circumvent the problems of performers’ rights. Actually, the trend had started under the 1972 interim revisions. It had allowed an applicant to submit either a phonorecord or sheet music to register for composer’s copyrights. That meant an artist could improvise a tune, record it, and send it in. When it was played on a radio station, he could then receive BMI or SESAC composer’s royalties. (My understanding is that ASCAP still required sheet music copyrighting for several more years.)

Under the new 1976 Act a musician could do the same thing. The only difference was they now had a choice of sending in sheet music and a Form E to register a printed composition, or a cassette tape and Form PA or PAU to register a basic non-dramatic musical work, which protected the composition/sound recording unity. Provided the musician wasn’t playing someone else’s tune, he could list himself as both the composer and performer and receive composer’s royalties for airplay. It wasn’t a great system for musicians, and it was widely abused by producers and managers, who often added themselves as co-composer without the artist’s knowledge, but it was better than the pre-1972 setup.

Two sections of the 1976 Act, taken together, justify a close look. These are section 301 and section 303. Section 301 started life as a fairly standard “boilerplate” preemption provision that said that if the copyright code covered a given subject, no state law could conflict with it. Section 303 was a “sweeping” provision intended to bring all older works under the umbrella of federal copyright, giving them whatever copyright duration they would be eligible for if they came into being on the day the Act was enacted, or if all else failed, until the end of 2027 (later extended to 2047). After eleven years of draft bills and mark-ups, section 301 was changed at the last minute to do some fairly weird legal things affecting only one category of works – pre-1972 sound recordings.

To be continued…