Analysis of Public Law 105-80 (11/13/97)
Effective in 1996, certain foreign copyrights were made valid in the United States, to include many original music compositions. This makes the US copyrights previously issued to arrangers (and any other derivative works) a legal infringement. This new rule allows these now infringing copyrights to continue in force, but only if the royalty payment is made to the restored works author. Should the term of the derivative work exceed the term of the restored rights (a very good possibility), the copyright of the derivative will be effectively reinstated upon the expiration of the true author's copyright term.
The copyright office recognizes only one royalty collection for music compositions. This determination is vital because most phonorecords royalty payments are based on the mechanic rights rule which is administrated by the Copyright Office. Thus the only way an arranger can share in royalty is with permission of the author (if not public domain) to generate a derivative work. Usually the author does not seek a new arrangement until the term of copyright protection is nearly expired, and the creation of a new copyright to be shared with an arranger could make financial sense. Many of the URAA restored works already had copyrights issued to American arrangers based on the prior public domain status of the composition. These are now infringing and the Copyright Office is obligated to pay future royalties to the true author. Unless the infringer can strike a deal with the author. Not likely, except where the URAA restored work is near its term end and the American arranger could offer to share his royalty on the derivative work with the original author. It's a thought.
Reaffirms that a phonorecord is a publication. But adds new language-
Phonorecords were made publications by statute in 1909 so that music composer's could receive copyright royalty payments. Edison previously claimed his "talking record" was a patent and that he had exclusive rights to profit therefrom.
This change is intended to reward a few high profile cases of performers that openly scoffed the law in their flower-power youth by failing to register their works for copyright, but now 20-30 years later want to collect royalties. The problem with this is that the "correction" affects the many poor but law abiding composers that had properly registered their works prior to 1972 using the then legally accepted evidence of a phonorecord as proof of publication. Without publication a work was not eligible for registration, and only the well-connected could ever hope to produce commercially printed sheet music. In fact even many of the so-called "publishing houses" were nothing more than phonorecord producers. The publication rule was relaxed in 1972 and essentially eliminated effective in 1978. Registration is of paramount importance in making a claim of infringement, thus the rights of many composers have been severely compromised. The phrase "for any purpose" will most certainly be the subject of constitutional legal challenge. Did congress really intend to deny protection of previously registered copyright holders so as to reward a special class? This action may further make infringing the many arrangement (derivative work) copyright registrations previously issued for both cases.
Taken together, these two sections will result in greatly reduced royalty payments to many American composers and arrangers in the years to come, while increasing the enrolled membership of ASCAP (which incidently supported both of these measures). Meanwhile, the competing rights organization, BMI has always encouraged its membership to file copyrights on arrangements of so-called public domain music, and now a large portion of the BMI repertoire has become infringing.
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