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105th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 105-325
_______________________________________________________________________
TREATMENT OF PRE-1978 PUBLICATION OF SOUND RECORDINGS
_______________________________________________________________________
October 21, 1997.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Coble, from the Committee on the Judiciary, submitted the following
R E P O R T
[To accompany H.R. 1967]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 1967) to amend title 17, United States Code, to
provide that the distribution before January 1, 1978, of a
phonorecord shall not for any purpose constitute a publication
of the musical work embodied therein, having considered the
same, reports favorably thereon without amendment and
recommends that the bill do pass.
TABLE OF CONTENTS
Page
Purpose and Summary........................................ 2
Background and Need for Legislation........................ 2
Hearings................................................... 3
Committee Consideration.................................... 3
Committee Oversight Findings............................... 3
Committee on Government Reform and Oversight Findings...... 3
New Budget Authority and Tax Expenditures.................. 3
Congressional Budget Office Estimate....................... 3
Inflationary Impact Statement.............................. 4
Section-by-Section Analysis and Discussion................. 5
Agency Views............................................... 5
Changes in Existing Law Made by the Bill, as Reported...... 6
Purpose and Summary
H.R. 1967 resolves problems created by recent judicial
interpretations of provisions of the 1909 Copyright Act. It
makes clear that the distribution of a musical record, disc or
tape before 1978 did not constitute a publication of the
musical composition(s) embodied in that disc or tape.
Background and Need for the Legislation
Under the 1909 Copyright Act, a copyright owner had to
secure her rights to her work once it was ``published'' by
providing statutory notice to the public that the work was
copyrighted. In Rosette v. Rainbo Mfg. Corp., 546 F. 2d 461 (2d
Cir. 1976), the United States Court of Appeals for the Second
Circuit held that the sale of a phonorecord did not a
``publication'' of the work(s) contained within the phonorecord
for purposes of the 1909 Copyright Act, because a record is not
a ``copy'' of the works contained within it (citing the Supreme
Court's ruling in White-Smith Music Pub. Co. v. Apollo Co., 209
U.S. 1 (1908), which held that a piano roll is not a ``copy''
of the underlying composition.) Based upon the Court's holding
that the distribution of a phonorecord did not constitute a
copy of any work contained therein, and on the Copyright
Office's advice, songwriters and music publishers did not
attempt to assure that the cover of a phonorecord which
contained one of their works had printed upon it a statutory
notice of ownership of the copyrighted work(s) contained within
the phonorecord.
As a practical matter, industry practice would make it very
difficult for songwriters and music publishers to ensure that a
phonorecord cover contain a copyright notice regarding works
contained within the recording, since these owners do not own
the copyright in the phonorecord itself, and therefore do not
control the production and publishing of the cover. Usually, a
recording label company owns the copyright in the distribution
(and digital performance) of the phonorecord itself, while a
songwriter or music publisher owns the copyright to a work or
works contained within any one recording.
The Copyright Office interpreted the 1909 Act, based upon
the above practical considerations and legal interpretations,
to mean that the release of a phonorecord was not a ``copy''
for purposes of the Act, and thus advised songwriters and music
publishers that there was no need to comply with the 1909
notification requirements for phonorecord releases. This
interpretation was affirmed in 1976 by Rosette.
The United States Court of Appeals for the Ninth Circuit,
in La Cienega Music Co. v. ZZ Top, 44 F. 3d 813 (9th Cir.
1995), rejected the Rosette interpretation of the 1909 Act and
held that the selling of a phonorecord does constitute a
``publication'' of any of the underlying works, requiring
compliance with the notice requirements. This decision
effectively places all pre-1978 works (the 1909 Act applies to
pre-1978 works) under a cloud since, in reliance on the 1976
decision and Copyright Office advice, most recordings of
musical works at that time were released without a copyright
notice for works contained within.
H.R. 1967 reverses the La Cienega decision and affirms in
the Copyright Act that a phonorecord released before 1978 did
not constitute a ``publication'' under the 1909 Copyright Act.
Hearings
The Committee's Subcommittee on Courts and Intellectual
Property held a field hearing on H.R. 1967 in Nashville,
Tennessee, on June 27, 1997. Testimony on this issue was
received from Paul Williams, songwriter, on behalf of the
American Society of Composers, Authors and Publishers; Ed
Murphy, President, National Music Publishers Association;
George David Weiss, Songwriter, Songwriters Guild of America;
and Frances Preston, President and Chief Executive Officer,
Broadcast Music Incorporated.
Committee Consideration
On September 30, 1997, the Subcommittee held a markup on
H.R. 1967. No amendments were offered and the bill was
favorably reported, by voice vote, a quorum being present, to
the full Committee. On October 7, 1997, the Committee held a
markup on H.R. 1967. No amendments were offered and the bill
was favorably reported, by voice vote, a quorum being present,
to the House.
Committee Oversight Findings
In compliance with clause 2(l)(3)(A) of rule XI of the
Rules of the House of Representatives, the Committee reports
that the findings and recommendations of the Committee, based
on oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
Committee on Government Reform and Oversight Findings
No findings or recommendations of the Committee on
Government Reform and Oversight were received as referred to in
clause 2(l)(3)(D) of rule XI of the Rules of the House of
Representatives.
New Budget Authority and Tax Expenditures
Clause 2(l)(3)(B) of House Rule XI is inapplicable because
this legislation does not provide new budgetary authority or
increased tax expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 2(l)(C)(3) of rule XI of the
Rules of the House of Representatives, the Committee sets
forth, with respect to the bill, H.R. 1967, the following
estimate and comparison prepared by the Director of the
Congressional Budget Office under section 403 of the
Congressional Budget Act of 1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, May 16, 1997.
Hon. Henry J. Hyde, Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 1967, a bill to
amend title 17, United States Code, to provide that the
distribution before January 1, 1978, of a phonorecord shall not
for any purpose constitute a publication of the musical work
embodied therein.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Rachel
Forward, who can be reached at 226-2860.
Sincerely,
June E. O'Neill, Director.
Enclosure.
H.R. 1967--Title 17, United States Code, to provide that the
distribution before January 1, 1978, of a phonorecord shall not
for any purpose constitute a publication of the musical work
embodied therein
CBO estimates that enacting H.R. 1967 would have no
significant impact on the federal budget. Because H.R. 1967
would not affect direct spending or receipts, pay-as-you-go
procedures would not apply. In addition H.R. 1967 contains no
private-sector or intergovernmental mandates as defined in the
Unfunded Mandates Reform Act of 1995 and would not affect the
budgets of state, local, or tribal governments.
H.R. 1967 would affirm the Copyright Office's current
policy that the distribution of a phonorecord before 1978 does
not constitute a publication of the underlying musical
composition. That policy is consistent with a 1976 ruling from
the Second U.S. Circuit Court of Appeals (Rosette v. Rainbo
Manufacturing Corporation). In 1995 the Ninth U.S. Circuit
Court of Appeals issued a contrary decision (La Cienega Music
Co. v. ZZ Top), which held that pre-1978 musical compositions
distributed on phonorecords constitute published works and must
bear the required copyright notice to avoid becoming part of
the public domain. Because the bill would confirm the Copyright
Office's treatment of pre-1978 musical compositions, enacting
H.R. 1967 would not significantly affect the workload or costs
of the office.
The CBO staff contact for this estimate is Rachel Forward,
who can be reach at 226-2860. The estimate was approved by
Robert A. Sunshine, Deputy Assistant Director for Budget
Analysis.
Inflationary Impact Statement
Pursuant to clause 2(l)(4) of rule XI of the Rules of the
House of Representatives, the Committee estimates that H.R.
1967 will have no significant inflationary impact on prices and
costs in the national economy.
Section-by-Section Analysis
Section 1.--Treatment of Pre-1978 Publication of Sound Recordings
This section affirms that the distribution of a phonorecord
to the public before January 1, 1978 did not constitute
publication of a musical composition embodied in that
phonorecord under the 1909 Copyright Act. It is intended to
restore the law to what it was before the decision of the Ninth
Circuit Court of Appeals in La Cienega Music Co. v. Z.Z.
Top.\1\
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\1\ 44 F.3d 813 (9th Cir.), cert. denied, 64 U.S.L.W. 3262 (Oct.
10, 1995).
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Until that decision, it was the long-standing view of the
Copyright Office and the understanding of the music industry,
as reflected in their business practices, that the sale or
distribution of a recording to the public before January 1,
1978, did not constitute publication of the musical
composition(s) embodied in the recording. This view was
confirmed by the Second Circuit Court of Appeals in Rosette v.
Rainbo Record Mfg. Corp.\2\
---------------------------------------------------------------------------
\2\ 354 F. Supp. 1183 (S.D.N.Y.), aff'd per curiam, 546 F.2d 461
(2d Cir. 1976).
---------------------------------------------------------------------------
The La Cienega decision has, therefore, placed a cloud over
the legal status of a large number of musical works recorded
and sold before January 1, 1978. Moreover, it has called into
question the long established interpretation of the Copyright
Office. It is the intent of this section to remove the cloud
and bring the law into conformity with the Second Circuit
opinion and Copyright Office practices.
Section 2.--Effective Dates
All amendments to the Copyright Act included in this bill
take effect on the date of enactment of the legislation.
Agency Views
U.S.Department of Commerce,
Office of the General Counsel,
Washington, DC.
Hon. Henry J. Hyde, Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: I am writing to express the
Administration's support for H.R. 1967, copyright legislation
scheduled for consideration by your Committee.
We strongly support legislation to remove a cloud over the
copyright status of thousands of musical works embodied in
phonorecords distributed before 1978. In the case of La Cienega
Music Co. v. ZZ Top, 53 F.3d 950 (9th Cir. 1995), cert. denied,
116 S.Ct. 331 (1995), the Ninth Circuit held that the
publication of a phonorecord published the underlying musical
work, thereby upsetting years of business practices based on
what was believed to be settled law. Under pre-1978 copyright
law, it was widely accepted that the publication of a
phonorecord did not publish the music embodied in that
phonorecord. By holding that this was a publication of a
musical work, the La Cienega decision casts doubt over the
copyright status of these works because the phonorecords in
which they were embodied did not include the notice of
copyright required under the 1909 Copyright Act to secure
Federal copyright protection. Enactment of H.R. 1967 would
reverse the Ninth Circuit's La Cienega decision, thereby
ensuring the continued copyright protection of these valuable
musical works, estimated by industry to generate $1.2 billion
in annual revenues.
We urge the Committee to move promptly to report this bill.
The Office of Management and Budget advises that from the
standpoint of the Administration's program, there is no
objection to the presentation of this report for the
consideration of the Committee.
Sincerely,
Kathryn R. Lunney,
Deputy General Counsel
H.L.C.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3 of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (new matter is
printed in italics and existing law in which no change is
proposed is shown in roman):
SECTION 303 OF TITLE 17, UNITED STATES CODE
Sec. 303. Duration of copyright: Works created but not published or
copyrighted before January 1, 1978
(a) 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 term provided by
section 302. In no case, however, shall the term of copyright
in such a work 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, 2027.
(b) The distribution before January 1, 1978, of a
phonorecord shall not for any purpose constitute a publication
of the musical work embodied therein.
