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fying it rather than abandoning it as a dividing line between forms of protection. Instead of "publication" the Report proposed to substitute a concept of "public dissemination" which would have included public performance and the public distribution of records as well as the distribution of visual copies. The Report suggested that common law literary property rights be retained for works that had not been "publicly disseminated," primarily on two grounds:

(1) Most undisseminated works are of a private nature, and to throw them into the public domain after a fixed statutory period could result either in their destruction or in unwarranted invasions of privacy; and

(2) Since undisseminated works are primarily "of a private and local concern," it is more appropriate to leave their protection to State law and the State courts.

The Report proposed that, unlike the present law, the securing of statutory copyright by voluntary registration be permitted for all classes of undisseminated works, and also contained special recommendations for dealing with manuscripts in libraries and other archival institutions.

Very strong objections were lodged against a dual common lawstatutory copyright system based on "public dissemination" as outlined in the Report. Although there was some support for retaining common law copyright, the overwhelming sentiment was definitely in favor of a single Federal copyright system with protection starting upon creation and with a limited term for all works, published or unpublished, disseminated or undisseminated. The 3 principal advantages of a uniform national system, which had also been recognized by the Report, can be summarized as follows:

(1) A single Federal system would clear up the confusion, uncertainty, and capriciousness that results under the present law. It was urged that the current imbroglio of "publication" would be made considerably worse by superimposing the new concept of "public dissemination" upon it, and that the difficulties of proof resulting from the bewildering vagueness of the present law would be increased under the proposal. Strong arguments were made in favor of adopting a system that would be compatible with the technological developments that have taken place in the various methods of making authors' works available to the public.

(2) A single Federal system would carry forward the basic purposes of the Constitution which, as Madison's famous statement in The Federalist shows, was to promote 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 works can be disseminated instantaneously throughout the world, this uniformity is not only a positive advantage with respect to the use of works on a national scale, but it also has tremendous importance when it comes to international dealings. A single national system of copyright from the creation of a work is now universal in foreign countries.

(3) The adoption of a single Federal system would carry forward the "limited times" provision of the Constitution which has become distorted under the historic concept of "publication." It would fit much more con

sistently with the copyright term based on the life of the author than would a dual system, and would also aid scholarship and the public's "right to know" by making unpublished, undisseminated manuscripts available for use after a reasonable period.

In addition to these policy arguments there was very widespread opposition to the concept of "public dissemination" on both technical and practical grounds. It was pointed out that under the proposed definition an isolated public performance might constitute "public dissemination" with important consequences as to the length and scope of protection, and that this could present insuperable problems of proof years later. The difficulties arising from improvisatory or impromptu performances, from revisions during rehearsals, and from the development of successive versions of a work, were emphasized, and the confusing use of a new term, "public dissemination" (which was required by a narrower definition of "publication" in the Universal Copyright Convention), was forcefully criticized. The proposals concerning the deposit of manuscripts in libraries were also attacked as overcomplicated and rigid, and as possibly discouraging the preservation of manuscript material of a personal nature.

In the light of these arguments we came to the conclusion that the criticisms of our proposals were generally well founded, and that the advantages of simplicity and uniformity in a single Federal system outweigh the advantages of preserving common law copyright for undisseminated works. Section 301 of the bill therefore adopts the approach of extending statutory protection to a work as soon as it is “created”—that is, under the definition in section 101, as soon as “it is fixed in a copy or phonorecord for the first time." The statute would apply to all works created after its effective date, whether or not they are ever published or disseminated. Moreover, under section 303, works created before the effective date of the statute and still under common law protection would be governed by the statute from then on, and would be guaranteed a minimum period of statutory copyright.

2. PRE-EMPTION OF STATE LAW

The statute is intended to pre-empt and abolish any rights under State law (whether common law or statutory) that are equivalent to copyright and that extend to works coming within the scope of the copyright law. The purpose is to state this principle as clearly and as explicitly as possible in order to avoid any misunderstanding as to Congress's intention to act pre-emptively, and in order to prevent the development of any hazy borderland areas between State and Federal protection. Section 301 (a) provides:

On and after January 1, 1967, all rights in the nature of copyright in works that come within the subject matter of copyright as specified by sections 102

and 103, whether created before or after that date and whether published or unpublished, are governed exclusively by this title. Thereafter, no person is entitled to copyright, literary property rights, or any equivalent legal or equitable right in any such work under the common law or statutes of any State.

With respect to any work of a kind covered by the statute, "all rights in the nature of copyright"-that is, "copyright, literary property rights, and any equivalent legal or equitable right”—are governed exclusively by the Federal copyright law, and all corresponding State laws are pre-empted. Thus, whenever a work was created, and whether it is published or unpublished, disseminated or undisseminated, in the public domain or under Federal statutory protection, the States cannot offer it protection equivalent to copyright. And, under section 1338 of title 28 of the United States Code, all actions concerning rights under the Federal copyright law would come within the exclusive jurisdiction of the Federal courts.

The scope of the pre-emption extends to "works that come within the subject matter of copyright as specified by sections 102 and 103 ***." The use of the phrase "*** come within the subject matter” rather than a phrase such as "subject to protection" is intended to rule out any argument that a work clearly falling within one of the categories listed in sections 102 and 103 is still entitled to common law copyright protection because it is too minimal or lacking in originality to qualify for protection under the statute. However, since "the subject matter of copyright as specified" in those sections covers only "works of authorship fixed in any tangible medium of expression, now known or later developed * ***" the pre-emptive effect of section 301 is not intended to extend to unfixed works such as, for example, a piece of choreography that has never been notated or filmed, an impromptu speech, or a musical composition that has been performed from memory but never written down or recorded. These would continue to be protected indefinitely at common law until fixed in some form "from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device." The pre-emption is intended to be complete with respect to any work coming within the scope of the bill, even though it would not be given as broad protection as might otherwise be available to it under the common law. For example, since sound recordings are now to be made copyrightable works, it would not be possible to afford them any rights of public performance under State law even though they are denied these rights under section 112 of the statute.

Subsection (b) of section 301 is intended to make clear that, consistent with the 1964 Supreme Court decisions in Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, and Compco Corp. v. Day-Brite Lighting, Inc., 376 U.S, 234, the pre-emption does not extend to causes of

action or unpublished subject matter outside the scope of the new Federal copyright statute. It provides that "[n]othing in this title annuls or limits any rights or remedies under the law of any State with respect to:

(1) unpublished material that does not come within the subject matter of copyright as specified in sections 102 and 103;

(2) any cause of action arising from undertakings commenced before January 1, 1967;

(3) activities violating rights that are not equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106, including breaches of contract, breaches of trust, invasion of privacy, defamation, and deceptive trade practices such as passing off and false representation.

The word "unpublished" in clause (1) of section 301 (b) deserves special note. In the United States, under the doctrine established by the Supreme Court in Wheaton v. Peters, 33 U.S. (8 Pet.) 591 (1834), common law copyright protection has consistently been held to terminate upon publication of the work. The word "unpublished" was therefore added to this clause to avoid any implication that common law protection equivalent to copyright, for material not coming within the subject matter of the statute, might continue after its publication. What constitutes "publication" for this purpose, which is now a matter of some uncertainty, would be governed by the definition of that term in the statute.

While the third clause of section 301 (b) is not intended to represent an exhaustive listing, its purpose is to illustrate rights and remedies that are different in nature from copyright and that are preserved under State common law or statute. Some examples might include, depending upon the particular circumstances in the case:

The unauthorized exploitation of a person's name or photograph for commercial advertising;

The unauthorized use of the title of a work in such a way as to constitute passing off or fraud;

The unauthorized disclosure and exploitation of a trade secret.

The language of clause (3) has been worded very carefully in an effort to avoid saying too much or too little. In particular, we have resisted use of the ambiguous term "unfair competition," which in recent years has gone through some wide shifts in meaning. In some States it was greatly broadened to become, under the name "misappropriation," the virtual equivalent of a copyright; and it has been cut back, by the Supreme Court's decision in Sears, Roebuck & Co. v. Stiffel Co.. to the traditional concept of "passing off." There is no intention to pre-empt. causes of action for unfair competition involving false labeling and fraudulent representation but, to the extent that a right against "unfair competition" is merely copyright by another name, section 301 is intended to abolish it as a common law cause of action.

3. MANUSCRIPTS

The problem of how to deal with manuscripts and other unpublished works deposited in libraries and similar institutions, which was dealt with specially in the Report, drops out under the single Federal system proposed by the bill. Unpublished works, including letters, photographs, diaries, memoranda, home movies, tape recordings, and other personal material, would be protected by the statute under section 301, and would go into the public domain when the statutory copyright expires at the end of the term provided in sections 302 or 303. We believe the terms provided in those sections are long enough to avoid any questions of invasion of privacy.

4. STATE REGULATION OF TRADE IN COPYRIGHTS

It has been suggested that the language of section 301 be broadened to include a prohibition against the enactment of State legislation that, under the guise of regulating combinations (such as performing rights societies) which are claimed to be in restraint of trade, impose added registration requirements or other restrictions on the rights accorded by the Federal copyright law. There appears to be no question, on the one hand, of the general power of a State to regulate activities in restraint of trade within its borders in the absence of pre-emptive Federal regulation, or, on the other hand, of its lack of power to impinge directly upon the rights granted by a Federal statute. However, we believe that section 301 goes as far as it should in stating the limits of State power in this area, and that any further definition of these limits should be left to separate legislation or the courts.

B. DURATION OF COPYRIGHT

1. IN GENERAL

To many people, especially authors and their representatives, the duration of copyright represents the most important single issue in copyright law revision. The Register's Report in 1961 recognized the urgency of this problem and recommended that the term be lengthened, although there was almost unanimous disagreement with its specific proposals for doing so. There is no question that the differences between those proposals and the provisions on the length of the copyright term now in the 1965 bill are far-reaching and significant, but we believe that they represent changes in approach and not in result. The Copyright Office has never doubted the need to lengthen the term of copyright, and the only question we have had is how to do it most effectively.

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