Copyright Act preempts itself

BSD Protector bsdprotector at
Thu Feb 12 05:05:56 UTC 2004

Now, I promise that this is not a troll. Really, I do.
I was simply reading the Copyright Act again and found
this in section 106:

Subject to sections 107 through 122, the owner of
copyright under this title has the exclusive rights to
do and to *authorize* any of the following:

Emphasis is mine, of course.

Now, to authorize, what exactly does that mean

Synonyms: authorize, accredit, commission, empower,

    These verbs mean to give someone the authority to
act: authorized her partner to negotiate on her
behalf; a representative who was accredited by his
government; commissioned the real-estate agent to
purchase the house; was empowered to make decisions
during the president's absence; a pharmacist licensed
to practice in two states.

So, I take this to mean that "authorize" means
"license". So, now we know that the owner of copyright
has the explicit authority to license, as given by the

The next important questions are:

1. Can an author impose any conditions to this
authorization or licensing?

2. Can two owners of copyright give permission
independently or do they have to create a contract in
order to do so?

Section 114, which relates to "Scope of exclusive
rights in sound recordings", contains this text:

(2) For licenses granted under section 106(6), other
than statutory licenses, such as for performances by
interactive services or performances that exceed the
sound recording performance complement — 

(A) copyright owners of sound recordings affected by
this section may designate common agents to act on
their behalf to grant licenses and receive and remit
royalty payments: Provided, That each copyright owner
shall establish the royalty rates and material license
terms and conditions unilaterally, that is, not in
agreement, combination, or concert with other
copyright owners of sound recordings; and

First, the obvious thing here is that this Act
explicity recognises the concept of "licenses granted
under section 106(6)". I don't think that if licensing
applies to 106(6) it wouldn't apply to the whole of
106. So, it is pretty safe to assume that a concept of
licensing is something that does in fact apply here.
After all, "auhtorize" == "license".

Second, note the wording of establishing conditions
unilaterally and not in agreement with other copyright
owners. Similar situation exists when it comes to
derivative works - there are multiple owners. One
would tend to conclude here that this Act in fact
recogizes a possiblity of multiple unilateral
"licenses" or "authorizations" without an agreement
between those involved (i.e. without a binding legal
form, contract).

Third, note the wording of "conditions". This is
absolutely recognised by this Act. It is also used in
combination with "unilaterally" quite explicitly.

So, why did I title this e-mail "Copyright Act
preempts itself"?

First, "copyright license" is an "authorization" as
specified by this Act and not a contract of any kind.
This Act does not require any other laws for this
authorization or licensing to be enforced.

Second, because if the above "conditional licensing"
recongition weren't the case, one would absolutely
require a contract to enforce anything that has
"conditions". Conditions would assume some sort of a
promise, so this would then fall under the contracts
law. This would then mean that in order to "authorize
with conditions", as explicitly recognised here in the
Act, one would need to employ a contract and therefore
fall afoul of section 301 which deals with preemption
when it comes to exclusive rights as set forward in
section 106.

Third, it would seem clear that it is explicitly
allowed by the Act that multiple permissions of the
owners of copyright be employed together and without
an agreement between them, in order to achieve a
complete permission to do something with the work.

So, the logical conclusion would be that Copyright Act
preempts itself if it requires some other state law in
order for the exclusive rights, it (Copyright Act)
exclusively governs, to be enforced. This if, of
course not possible, so the only interpretation
available is that "authorization with conditions" or
"licensing under conditions" is explicitly allowed by
the Act.

Also, the other concusion is that "multiple
independent permissions of copyright holders" are
sufficient to get authorization (i.e. license) to do
something with the copyrighted work which would be
otherwise prohibited by the Act. No contract between
owners of copyright is required to do so.

Do you Yahoo!?
Yahoo! Finance: Get your refund fast by filing online.
license-discuss archive is at

More information about the License-discuss mailing list