§ 301. — Preemption with respect to other laws.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 17USC301]
TITLE 17--COPYRIGHTS
CHAPTER 3--DURATION OF COPYRIGHT
Sec. 301. Preemption with respect to other laws
(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
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created before or after that date and whether published or unpublished,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 any such right or equivalent 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 authorship not fixed in any tangible medium of expression; or
(2) any cause of action arising from undertakings commenced
before January 1, 1978;
(3) activities violating legal or equitable rights that are not
equivalent to any of the exclusive rights within the general scope
of copyright as specified by section 106; or
(4) State and local landmarks, historic preservation, zoning, or
building codes, relating to architectural works protected under
section 102(a)(8).
(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, 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 before February
15, 1972, shall be subject to copyright under this title before, on, or
after February 15, 2067.
(d) Nothing in this title annuls or limits any rights or remedies
under any other Federal statute.
(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 equivalent 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 author.
(Pub. L. 94-553, title I, Sec. 101, Oct. 19, 1976, 90 Stat. 2572; Pub.
L. 100-568, Sec. 6, Oct. 31, 1988, 102 Stat. 2857; Pub. L. 101-650,
title VI, Sec. 605, title VII, Sec. 705, Dec. 1, 1990, 104 Stat. 5131,
5134; Pub. L. 105-298, title I, Sec. 102(a), Oct. 27, 1998, 112 Stat.
2827.)
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
unpublished 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 ``created'' 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 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
constitutional aims of uniformity and the promotion of writing and
scholarship. The main arguments in favor of a single Federal system can
be summarized as follows:
1. One of the fundamental purposes behind the copyright clause
of the Constitution, as shown in Madison's comments in The
Federalist, 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 the methods for dissemination of an
author's work are incomparably broader and faster than they were in
1789, national uniformity in copyright protection is even more
essential than it was then to carry out the constitutional intent.
2. ``Publication,'' perhaps the most important single 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 practical
dividing line between common law and statutory protection, this is
no longer true. With the development of the 20th-century
communications revolution, the concept of publication has become
increasingly 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 interpretations, some of them radically different.
Not unexpectedly, the results in individual cases have become
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, Sec. 8, cl.
8], which has become distorted under the traditional concept of
``publication.'' Common law protection in ``unpublished'' works is
now perpetual, no matter how widely they may be disseminated by
means other than ``publication''; the bill would place a time limit
on the duration of exclusive rights in them. The provision would
also aid scholarship and the dissemination of historical materials
by making unpublished, undisseminated manuscripts 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
copyrighted works can be disseminated instantaneously to every
country on the globe, the need for effective international copyright
relations, and the concomitant need for national uniformity, assume
ever greater 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 protection from
that date on, and would guarantee a minimum 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 copyright 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
preemptively, and to avoid the development of any vague borderline areas
between State and Federal protection.
Under section 301(a) 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'' 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 specified by sections 102 and
103.'' All corresponding State laws, whether common law or statutory,
are preempted and abrogated. Regardless of when the work was created and
whether it is published or unpublished, disseminated or undisseminated,
in the public domain or copyrighted under the Federal statute, the
States cannot 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 jurisdiction 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, Sec. 8, cl. 8].
As long as a work fits within one of the general subject 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 copyright protection for one
important class of works: works that have not been ``fixed in any
tangible medium of expression.'' Examples would include choreography
that has never been filmed or notated, an extemporaneous speech,
``original works of authorship'' communicated solely through
conversations or live broadcasts, 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 included 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 protection 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 potential impact on protection
of preliminary advertising copy and layouts prepared by printers. They
argued that this material is frequently ``pirated'' by competitors, 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
material cannot be justified. Moreover, subsection (b), discussed below,
will preserve other legal grounds on which the printers can protect
themselves against ``pirates'' under State laws.
In a general way subsection (b) of section 301 represents the
obverse of subsection (a). It sets out, in broad terms and without
necessarily being exhaustive, some of the principal areas of protection
that preemption would not prevent the States from protecting. Its
purpose is to make clear, consistent with the 1964 Supreme 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, 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 general 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 different in nature from the
rights comprised in a copyright 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 remain 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;
however, 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 representation''--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 preempt common law
protection in cases involving activities 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 unauthorized 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 updates from scientific, business, or financial
data bases. Likewise, a person having no trust or other relationship
with the proprietor of a computerized data base should not be immunized
from sanctions against electronically or cryptographically breaching the
proprietor's security arrangements and accessing the proprietor's data.
The unauthorized data access which should be remediable might also be
achieved by the intentional interception of data transmissions by wire,
microwave or laser transmissions, or by the common unintentional means
of ``crossed'' telephone lines occasioned by errors in switching.
The proprietor of data displayed on the cathode ray tube of a
computer terminal should be afforded protection 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 respect 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-February 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 provided 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
coming into effect of the new law. 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 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.
References in Text
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
1998--Subsec. (c). Pub. L. 105-298 substituted ``2067'' for ``2047''
wherever appearing.
1990--Subsec. (b)(4). Pub. L. 101-650, Sec. 705, added par. (4).
Subsec. (f). Pub. L. 101-650, Sec. 605, added subsec. (f).
1988--Subsec. (e). Pub. L. 100-568 added subsec. (e).
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 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.
