17 U.S.C. § 301 — Preemption with respect to other laws

Page 140 TITLE 17—COPYRIGHTS § 301 law for the administration of the functions of the Reg- ister under this section. All regulations established by the Register are subject to the approval of the Librarian of Congress.’’ REGISTRATION OF CLAIMS TO COPYRIGHTS AND REC- ORDATION OF ASSIGNMENTS OF COPYRIGHTS AND OTHER INSTRUMENTS UNDER PREDECESSOR PROVI- SIONS Recordation of assignments of copyrights or other in- struments received in the Copyright Office before Jan. 1, 1978, to be made in accordance with this title as it ex- isted on Dec. 31, 1977, see section 109 of Pub. L. 94–553, set out as a note under section 410 of this title. CHAPTER 3—DURATION OF COPYRIGHT Sec. 301. Preemption with respect to other laws. 302. Duration of copyright: Works created on or after January 1, 1978. 303. Duration of copyright: Works created but not published or copyrighted before January 1, 1978. 304. Duration of copyright: Subsisting copyrights. 305. Duration of copyright: Terminal date. § 301. Preemption with respect to other laws (a) On and after January 1, 1978, all legal or eq- uitable 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 mat- ter of copyright as specified by sections 102 and 103, whether created before or after that date and whether published or unpublished, are gov- erned exclusively by this title. Thereafter, no person is entitled to any such right or equiva- lent right in 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 the common law or statutes of any State with respect to— (1) subject matter that does not come within the subject matter of copyright as specified by sections 102 and 103, including works of au- thorship not fixed in any tangible medium of expression; or (2) any cause of action arising from under- takings commenced before January 1, 1978; (3) activities violating legal or equitable rights that are not equivalent to any of the ex- clusive rights within the general scope of copyright as specified by section 106; or (4) State and local landmarks, historic pres- ervation, zoning, or building codes, relating to architectural works protected under section 102(a)(8). (c) Notwithstanding the provisions of section 303, and in accordance with chapter 14, no sound recording fixed before February 15, 1972, shall be subject to copyright under this title. With re- spect to sound recordings fixed before February 15, 1972, the preemptive provisions of subsection (a) shall apply to activities that are commenced on and after the date of enactment of the Classics Protection and Access Act. Nothing in this subsection may be construed to affirm or negate the preemption of rights and remedies pertaining to any cause of action arising from the nonsubscription broadcast transmission of sound recordings under the common law or stat- utes of any State for activities that do not qual- ify as covered activities under chapter 14 under- taken during the period between the date of en- actment of the Classics Protection and Access Act and the date on which the term of prohibi- tion on unauthorized acts under section 1401(a)(2) expires for such sound recordings. Any potential preemption of rights and remedies re- lated to such activities undertaken during that period shall apply in all respects as it did the day before the date of enactment of the Classics Protection and Access Act. (d) Nothing in this title annuls or limits any rights or remedies under any other Federal stat- ute. (e) The scope of Federal preemption under this section is not affected by the adherence of the United States to the Berne Convention or the satisfaction of obligations of the United States thereunder. (f)(1) On or after the effective date set forth in section 610(a) of the Visual Artists Rights Act of 1990, all legal or equitable rights that are equiv- alent to any of the rights conferred by section 106A with respect to works of visual art to which the rights conferred by section 106A apply are governed exclusively by section 106A and section 113(d) and the provisions of this title relating to such sections. Thereafter, no person is entitled to any such right or equivalent right in any work of visual art under the common law or statutes of any State. (2) Nothing in paragraph (1) annuls or limits any rights or remedies under the common law or statutes of any State with respect to— (A) any cause of action from undertakings commenced before the effective date set forth in section 610(a) of the Visual Artists Rights Act of 1990; (B) activities violating legal or equitable rights that are not equivalent to any of the rights conferred by section 106A with respect to works of visual art; or (C) activities violating legal or equitable rights which extend beyond the life of the au- thor. (Pub. L. 94–553, title I, § 101, Oct. 19, 1976, 90 Stat. 2572; Pub. L. 100–568, § 6, Oct. 31, 1988, 102 Stat. 2857; Pub. L. 101–650, title VI, § 605, title VII, § 705, Dec. 1, 1990, 104 Stat. 5131, 5134; Pub. L. 105–298, title I, § 102(a), Oct. 27, 1998, 112 Stat. 2827; Pub. L. 115–264, title II, § 202(a)(1), Oct. 11, 2018, 132 Stat. 3728.) HISTORICAL AND REVISION NOTES HOUSE REPORT NO. 94–1476 Single Federal System. Section 301, one of the bedrock provisions of the bill, would accomplish a fundamental and significant change in the present law. Instead of a dual system of ‘‘common law copyright’’ for unpub- lished works and statutory copyright for published works, which has been the system in effect in the United States since the first copyright statute in 1790, the bill adopts a single system of Federal statutory copyright from creation. Under section 301 a work would obtain statutory protection as soon as it is ‘‘cre- ated’’ or, as that term is defined in section 101 when it is ‘‘fixed in a copy or phonorecord for the first time.’’ Common law copyright protection for works coming within the scope of the statute would be abrogated, and the concept of publication would lose its all-embracing importance as a dividing line between common law and Page 141 TITLE 17—COPYRIGHTS § 301 statutory protection and between both of these forms of legal protection and the public domain. By substituting a single Federal system for the present anachronistic, uncertain, impractical, and highly complicated dual system, the bill would greatly improve the operation of the copyright law and would be much more effective in carrying out the basic con- stitutional aims of uniformity and the promotion of writing and scholarship. The main arguments in favor of a single Federal system can be summarized as fol- lows: 1. One of the fundamental purposes behind the copyright clause of the Constitution, as shown in Madison’s comments in The Federalist, was to pro- mote national uniformity and to avoid the practical difficulties of determining and enforcing an author’s rights under the differing laws and in the separate courts of the various States. Today when the methods for dissemination of an author’s work are incom- parably broader and faster than they were in 1789, na- tional uniformity in copyright protection is even more essential than it was then to carry out the con- stitutional intent. 2. ‘‘Publication,’’ perhaps the most important sin- gle concept under the present law, also represents its most serious defect. Although at one time when works were disseminated almost exclusively through printed copies, ‘‘publication’’ could serve as a prac- tical dividing line between common law and statu- tory protection, this is no longer true. With the de- velopment of the 20th-century communications revo- lution, the concept of publication has become in- creasingly artificial and obscure. To cope with the legal consequences of an established concept that has lost much of its meaning and justification, the courts have given ‘‘publication’’ a number of diverse inter- pretations, some of them radically different. Not un- expectedly, the results in individual cases have be- come unpredictable and often unfair. A single Federal system would help to clear up this chaotic situation. 3. Enactment of section 301 would also implement the ‘‘limited times’’ provision of the Constitution [Const. Art. I, § 8, cl. 8], which has become distorted under the traditional concept of ‘‘publication.’’ Com- mon law protection in ‘‘unpublished’’ works is now perpetual, no matter how widely they may be dis- seminated by means other than ‘‘publication’’; the bill would place a time limit on the duration of exclu- sive rights in them. The provision would also aid scholarship and the dissemination of historical mate- rials by making unpublished, undisseminated manu- scripts available for publication after a reasonable period. 4. Adoption of a uniform national copyright system would greatly improve international dealings in copyrighted material. No other country has anything like our present dual system. In an era when copy- righted works can be disseminated instantaneously to every country on the globe, the need for effective international copyright relations, and the concomi- tant need for national uniformity, assume ever great- er importance. Under section 301, the statute would apply to all works created after its effective date [Jan 1, 1978], whether or not they are ever published or disseminated. With respect to works created before the effective date of the statute [Jan. 1, 1978] and still under common law protection, section 303 of the statute would provide pro- tection from that date on, and would guarantee a min- imum period of statutory copyright. Preemption of State Law. The intention of section 301 is to preempt and abolish any rights under the common law or statutes of a State that are equivalent to copy- right and that extend to works coming within the scope of the Federal copyright law. The declaration of this principle in section 301 is intended to be stated in the clearest and most unequivocal language possible, so as to foreclose any conceivable misinterpretation of its unqualified intention that Congress shall act preemp- tively, and to avoid the development of any vague bor- derline areas between State and Federal protection. Under section 301(a) all ‘‘legal or equitable rights that are equivalent to any of the exclusive rights with- in the general scope of copyright as specified by section 106’’ are governed exclusively by the Federal copyright statute if the works involved are ‘‘works of authorship that are fixed in a tangible medium of expression and come within the subject matter of copyright as speci- fied by sections 102 and 103.’’ All corresponding State laws, whether common law or statutory, are preempted and abrogated. Regardless of when the work was cre- ated and whether it is published or unpublished, dis- seminated or undisseminated, in the public domain or copyrighted under the Federal statute, the States can- not offer it protection equivalent to copyright. Section 1338 of title 28, United States Code, also makes clear that any action involving rights under the Federal copyright law would come within the exclusive juris- diction of the Federal courts. The preemptive effect of section 301 is limited to State laws; as stated expressly in subsection (d) of section 301, there is no intention to deal with the question of whether Congress can or should offer the equivalent of copyright protection under some constitutional provision other than the patent-copyright clause of article 1, section 8 [Const. Art. I, § 8, cl. 8]. As long as a work fits within one of the general sub- ject matter categories of sections 102 and 103, the bill prevents the States from protecting it even if it fails to achieve Federal statutory copyright because it is too minimal or lacking in originality to qualify, or because it has fallen into the public domain. On the other hand section 301(b) explicitly preserves common law copy- right protection for one important class of works: works that have not been ‘‘fixed in any tangible me- dium of expression.’’ Examples would include choreog- raphy that has never been filmed or notated, an extem- poraneous speech, ‘‘original works of authorship’’ com- municated solely through conversations or live broad- casts, and a dramatic sketch or musical composition improvised or developed from memory and without being recorded or written down. As mentioned above in connection with section 102, unfixed works are not in- cluded in the specified ‘‘subject matter of copyright.’’ They are therefore not affected by the preemption of section 301, and would continue to be subject to protec- tion under State statute or common law until fixed in tangible form. The preemption of rights under State law is complete with respect to any work coming within the scope of the bill, even though the scope of exclusive rights given the work under the bill is narrower than the scope of common law rights in the work might have been. Representatives of printers, while not opposed to the principle of section 301, expressed concern about its po- tential impact on protection of preliminary advertising copy and layouts prepared by printers. They argued that this material is frequently ‘‘pirated’’ by competi- tors, and that it would be a substantial burden if, in order to obtain full protection, the printer would have to make registrations and bear the expense and bother of suing in Federal rather than State courts. On the other hand, these practical problems are essentially procedural rather than substantive, and the proposal for a special exemption to preserve common law rights equivalent to copyright in unpublished advertising ma- terial cannot be justified. Moreover, subsection (b), dis- cussed below, will preserve other legal grounds on which the printers can protect themselves against ‘‘pi- rates’’ under State laws. In a general way subsection (b) of section 301 rep- resents the obverse of subsection (a). It sets out, in broad terms and without necessarily being exhaustive, some of the principal areas of protection that preemp- tion would not prevent the States from protecting. Its purpose is to make clear, consistent with the 1964 Su- preme Court decisions in Sears, Roebuck & Co., v. Stiffel Co., 376 U.S. 225 [84 S.Ct. 784, 11 L.Ed.2d 661, rehearing denied 84 S.Ct. 1131, 376 U.S. 973, 12 L.Ed.2d 87], and Compco Corp. v. Day-Brite Lighting, Inc., 376 U.S. 234 [84 S.Ct. 779, 11 L.Ed.2d 669, rehearing denied 84 S.Ct. 1162, Page 142 TITLE 17—COPYRIGHTS § 301 377 U.S. 913, 12 L.Ed.2d 183], that preemption does not extend to causes of action, or subject matter outside the scope of the revised Federal copyright statute. The numbered clauses of subsection (b) list three gen- eral areas left unaffected by the preemption: (1) subject matter that does not come within the subject matter of copyright; (2) causes of action arising under State law before the effective date of the statute [Jan. 1, 1978]; and (3) violations of rights that are not equivalent to any of the exclusive rights under copyright. The examples in clause (3), while not exhaustive, are intended to illustrate rights and remedies that are dif- ferent in nature from the rights comprised in a copy- right and that may continue to be protected under State common law or statute. The evolving common law rights of ‘‘privacy,’’ ‘‘publicity,’’ and trade secrets, and the general laws of defamation and fraud, would re- main unaffected as long as the causes of action contain elements, such as an invasion of personal rights or a breach of trust or confidentiality, that are different in kind from copyright infringement. Nothing in the bill derogates from the rights of parties to contract with each other and to sue for breaches of contract; how- ever, to the extent that the unfair competition concept known as ‘‘interference with contract relations’’ is merely the equivalent of copyright protection, it would be preempted. The last example listed in clause (3)—‘‘deceptive trade practices such as passing off and false representa- tion’’—represents an effort to distinguish between those causes of action known as ‘‘unfair competition’’ that the copyright statute is not intended to preempt and those that it is. Section 301 is not intended to pre- empt common law protection in cases involving activi- ties such as false labeling, fraudulent representation, and passing off even where the subject matter involved comes within the scope of the copyright statute. ‘‘Misappropriation’’ is not necessarily synonymous with copyright infringement, and thus a cause of action labeled as ‘‘misappropriation’’ is not preempted if it is fact based neither on a right within the general scope of copyright as specified by section 106 nor on a right equivalent thereto. For example, state law should have the flexibility to afford a remedy (under traditional principles of equity) against a consistent pattern of un- authorized appropriation by a competitor of the facts (i.e., not the literary expression) constituting ‘‘hot’’ news, whether in the traditional mold of International News Service v. Associated Press, 248 U.S. 215 (1918) [39 S.Ct. 68, 63 L.Ed. 211], or in the newer form of data up- dates from scientific, business, or financial data bases. Likewise, a person having no trust or other relation- ship with the proprietor of a computerized data base should not be immunized from sanctions against elec- tronically or cryptographically breaching the propri- etor’s security arrangements and accessing the propri- etor’s data. The unauthorized data access which should be remediable might also be achieved by the inten- tional interception of data transmissions by wire, microwave or laser transmissions, or by the common unintentional means of ‘‘crossed’’ telephone lines occa- sioned by errors in switching. The proprietor of data displayed on the cathode ray tube of a computer terminal should be afforded protec- tion against unauthorized printouts by third parties (with or without improper access), even if the data are not copyrightable. For example, the data may not be copyrighted because they are not fixed in a tangible medium of expression (i.e., the data are not displayed for a period or not more than transitory duration). Nothing contained in section 301 precludes the owner of a material embodiment of a copy or a phonorecord from enforcing a claim of conversion against one who takes possession of the copy or phonorecord without consent. A unique and difficult problem is presented with re- spect to the status of sound recordings fixed before February 12, 1972, the effective date of the amendment bringing recordings fixed after that date under Federal copyright protection. In its testimony during the 1975 hearings, the Department of Justice pointed out that, under section 301 as then written: This language could be read as abrogating the anti- piracy laws now existing in 29 states relating to pre- February 15, 1972, sound recordings on the grounds that these statutes proscribe activities violating rights equivalent to * * * the exclusive rights within the general scope of copyright. * * * Certainly such a result cannot have been intended for it would likely effect the immediate resurgence of piracy of pre-Feb- ruary 15, 1972, sound recordings. The Department recommended that section 301(b) be amended to exclude sound recordings fixed prior to February 15, 1972 from the effect of the preemption. The Senate adopted this suggestion when it passed S. 22. The result of the Senate amendment would be to leave pre-1972 sound recordings as entitled to perpetual protection under State law, while post-1972 recordings would eventually fall into the public domain as pro- vided in the bill. The Committee recognizes that, under recent court decisions, pre-1972 recordings are protected by State statute or common law, and that should not all be thrown into the public domain instantly upon the com- ing into effect of the new law. However, it cannot agree that they should in effect be accorded perpetual protec- tion, as under the Senate amendment, and it has there- fore revised clause (4) to establish a future date for the pre-emption to take effect. The date chosen is February 15, 2047 which is 75 years from the effective date of the statute extending Federal protection to recordings. Subsection (c) makes clear that nothing contained in Title 17 annuls or limits any rights or remedies under any other Federal statute. Editorial Notes REFERENCES IN TEXT The date of enactment of the Classics Protection and Access Act, referred to in subsec. (c), is the date of en- actment of title II of Pub. L. 115–264, which was ap- proved Oct. 11, 2018. Section 610(a) of the Visual Artists Rights Act of 1990 [Pub. L. 101–650], referred to in subsec. (f)(1), (2)(A), is set out as an Effective Date note under section 106A of this title. AMENDMENTS 2018—Subsec. (c). Pub. L. 115–264, § 202(a)(1), added subsec. (c) and struck out former subsec. (c) which read as follows: ‘‘With respect to sound recordings fixed be- fore February 15, 1972, any rights or remedies under the common law or statutes of any State shall not be an- nulled or limited by this title until February 15, 2067. 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 and after February 15, 2067. Notwithstanding the provisions of section 303, no sound recording fixed be- fore February 15, 1972, shall be subject to copyright under this title before, on, or after February 15, 2067.’’ 1998—Subsec. (c). Pub. L. 105–298 substituted ‘‘2067’’ for ‘‘2047’’ wherever appearing. 1990—Subsec. (b)(4). Pub. L. 101–650, § 705, added par. (4). Subsec. (f). Pub. L. 101–650, § 605, added subsec. (f). 1988—Subsec. (e). Pub. L. 100–568 added subsec. (e). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1990 AMENDMENT Amendment by section 605 of Pub. L. 101–650 effective 6 months after Dec. 1, 1990, see section 610 of Pub. L. 101–650, set out as an Effective Date note under section 106A of this title. Amendment by section 705 Pub. L. 101–650 applicable to any architectural work created on or after Dec. 1, 1990, and any architectural work, that, on Dec. 1, 1990, is unconstructed and embodied in unpublished plans or Page 143 TITLE 17—COPYRIGHTS § 302 drawings, except that protection for such architectural work under this title terminates on Dec. 31, 2002, unless the work is constructed by that date, see section 706 of Pub. L. 101–650, set out as a note under section 101 of this title. EFFECTIVE DATE OF 1988 AMENDMENT Amendment by Pub. L. 100–568 effective Mar. 1, 1989, with any cause of action arising under this title before such date being governed by provisions in effect when cause of action arose, see section 13 of Pub. L. 100–568, set out as a note under section 101 of this title. § 302. Duration of copyright: Works created on or after January 1, 1978 (a) IN GENERAL.—Copyright in a work created on or after January 1, 1978, subsists from its cre- ation and, except as provided by the following subsections, endures for a term consisting of the life of the author and 70 years after the author’s death. (b) JOINT WORKS.—In the case of a joint work prepared by two or more authors who did not work for hire, the copyright endures for a term consisting of the life of the last surviving author and 70 years after such last surviving author’s death. (c) ANONYMOUS WORKS, PSEUDONYMOUS WORKS, AND WORKS MADE FOR HIRE.—In the case of an anonymous work, a pseudonymous work, or a work made for hire, the copyright endures for a term of 95 years from the year of its first publi- cation, or a term of 120 years from the year of its creation, whichever expires first. If, before the end of such term, the identity of one or more of the authors of an anonymous or pseudony- mous work is revealed in the records of a reg- istration made for that work under subsections (a) or (d) of section 408, or in the records pro- vided by this subsection, the copyright in the work endures for the term specified by sub- section (a) or (b), based on the life of the author or authors whose identity has been revealed. Any person having an interest in the copyright in an anonymous or pseudonymous work may at any time record, in records to be maintained by the Copyright Office for that purpose, a state- ment identifying one or more authors of the work; the statement shall also identify the per- son filing it, the nature of that person’s interest, the source of the information recorded, and the particular work affected, and shall comply in form and content with requirements that the Register of Copyrights shall prescribe by regula- tion. (d) RECORDS RELATING TO DEATH OF AU- THORS.—Any person having an interest in a copyright may at any time record in the Copy- right Office a statement of the date of death of the author of the copyrighted work, or a state- ment that the author is still living on a par- ticular date. The statement shall identify the person filing it, the nature of that person’s in- terest, and the source of the information re- corded, and shall comply in form and content with requirements that the Register of Copy- rights shall prescribe by regulation. The Reg- ister shall maintain current records of informa- tion relating to the death of authors of copy- righted works, based on such recorded state- ments and, to the extent the Register considers practicable, on data contained in any of the records of the Copyright Office or in other ref- erence sources. (e) PRESUMPTION AS TO AUTHOR’S DEATH.— After a period of 95 years from the year of first publication of a work, or a period of 120 years from the year of its creation, whichever expires first, any person who obtains from the Copy- right Office a certified report that the records provided by subsection (d) disclose nothing to indicate that the author of the work is living, or died less than 70 years before, is entitled to the benefits of a presumption that the author has been dead for at least 70 years. Reliance in good faith upon this presumption shall be a complete defense to any action for infringement under this title. (Pub. L. 94–553, title I, § 101, Oct. 19, 1976, 90 Stat. 2572; Pub. L. 105–298, title I, § 102(b), Oct. 27, 1998, 112 Stat. 2827.) HISTORICAL AND REVISION NOTES HOUSE REPORT NO. 94–1476 In General. The debate over how long a copyright should last is as old as the oldest copyright statute and will doubtless continue as long as there is a copyright law. With certain exceptions, there appears to be strong support for the principle, as embodied in the bill, of a copyright term consisting of the life of the au- thor and 50 years after his death. In particular, the au- thors and their representatives stressed that the adop- tion of a life-plus-50 term was by far their most impor- tant legislative goal in copyright law revision. The Register of Copyrights now regards a life-plus-50 term as the foundation of the entire bill. Under the present law statutory copyright protection begins on the date of publication (or on the date of reg- istration in unpublished form) and continues for 28 years from that date; it may be renewed for a second 28 years, making a total potential term of 56 years in all cases. [Under Public Laws 87–668, 89–142, 90–141, 90–416, 91–147, 91–555, 92–170, 92–566, and 93–573, copyrights that were subsisting in their renewal term on September 19, 1962, and that were scheduled to expire before Dec. 31, 1976, have been extended to that later date, in anticipa- tion that general revision legislation extending their terms still further will be enacted by then.] The prin- cipal elements of this system—a definite number of years, computed from either publication or registra- tion, with a renewal feature—have been a part of the U.S. copyright law since the first statute in 1790. The arguments for changing this system to one based on the life of the author can be summarized as follows: 1. The present 56-year term is not long enough to insure an author and his dependents the fair eco- nomic benefits from his works. Life expectancy has increased substantially, and more and more authors are seeing their works fall into the public domain during their lifetimes, forcing later works to compete with their own early works in which copyright has expired. 2. The tremendous growth in communications media has substantially lengthened the commercial life of a great many works. A short term is particu- larly discriminatory against serious works of music, literature, and art, whose value may not be recog- nized until after many years. 3. Although limitations on the term of copyright are obviously necessary, too short a term harms the author without giving any substantial benefit to the public. The public frequently pays the same for works in the public domain as it does for copyrighted works, and the only result is a commercial windfall to cer- tain users at the author’s expense. In some cases the lack of copyright protection actually restrains dis- semination of the work, since publishers and other users cannot risk investing in the work unless as- sured of exclusive rights.