Copyright Act of 1976, Pub. L. No. 94-553, 90 Stat. 2541 (Oct. 19, 1976), codified at various parts of Title 17 U.S. Code.
The Copyright Act of 1976 is the primary basis of copyright law in the United States, as amended by numerous later enacted copyright provisions. The Act spells out the basic rights of copyright holders, codified the doctrine of "fair use", and converted the term of copyrights from a fixed period requiring renewal to an extended period based on the date of the creator's death. It was signed into law on October 19, 1976, and went into effect on January 1, 1978. It is codified in Title 17 of the U.S. Code.
History and Purpose
Before the 1976 Act, the last major revision to statutory copyright law in the United States occurred in 1909. In deliberating the 1976 Act, Congress noted that extensive technological advances had occurred since the adoption of the 1909 Copyright Act. Television, motion pictures, sound recordings, and radio were cited as examples. The Act was designed in part to address intellectual property questions raised by these new forms of communication.
Aside from advances in technology, the other main impetus behind the adoption of the 1976 Act was the development of and the United States' participation in the Universal Copyright Convention (UCC) (and its anticipated participation in the Berne Convention). While the United States became a party to the UCC in 1955, the machinery of government was slow to update U.S. copyright law to conform to the Convention's standards. In the years following the United States' adoption of the UCC, Congress commissioned multiple studies on a general revision of copyright law, culminating in a published report in 1961.
A draft of the bill was introduced in both the House and Senate in 1964, but the original version of the Act was revised multiple times between 1964 and 1976. The bill was passed as S. 22 of the 94th Congress by a vote of 97-0 in the Senate on February 19, 1976. S. 22 was passed by a vote of 316-7 in the House of Representatives on September 22, 1976. The final version was adopted into law as Title 17 of the United States Code on October 19, 1976. The law went into effect on January 1, 1978.
At the time, the law was considered to be a fair compromise between publishers' and authors' rights. Barbara Ringer, the U.S. Register of Copyrights, called the new law "a balanced compromise that comes down on the authors' and creators' side in almost every instance." The law was almost exclusively discussed in publishers' and librarians' journals, and with the exception of a half page article in Time Magazine, was not discussed in mainstream publications at all. The claimed advantage of the law's extension of the term of subsisting copyrights was that "royalties will be paid to widows and heirs for an extra 19 years for such about-to-expire copyrights as those on Sherword Anderson's Winesburg, Ohio . . . ." The other intent of the extension was to protect authors' rights "for life plus 50 years—the most common term internationally and the one Mark Twain fought for in his lifetime." Further extensions of both term and scope have been desired by some, as foreshadowed by the contemporary quote made by James Fitzpatrick, a Recording Industry Association of America copyright lawyer, in response to a question about whether his workload would decrease with the passage of the bill, "It's clear, that I'll continue to be occupied."
Significant Portions of the Act
The 1976 Act, through its terms, preempts all previous copyright law in the United States. The preempted law includes prior federal legislation, such as the 1909 Copyright Act, but also includes all relevant common law and state copyright laws insofar as they conflict with the Act.
Changes from 1909 Act
Under the 1976 Act, copyright subsists in original works of authorship upon fixation in any tangible medium of expression. Works need not be registered with the Copyright Office, or published with proper notice, to obtain federal copyright protection, as was the case under the 1909 Act. The 1976 Act thus made it substantially easier for authors to obtain protection for their works.
The 1976 Act made maintaining protection in those works substantially easier as well. Prior to the 1976 Act, the term of copyright was split into two periods of years: an initial 28-year term, followed by an additional 28-year renewal term. Protection for the renewal term could be secured only by registration of a renewal with the Copyright Office during the last year of the first term. Failure to renew properly resulted in complete loss of copyright.
The 1976 Act, however, changed the basic measure of copyright’s term. Instead of two fixed terms of years, the 1976 Act provided a single term for the life of the author, plus an additional 50 years, which was extended to 70 years in 1998. This general term applies to works created on or after January 1, 1978. Works created before then and in the first term of copyright under the old law were still subject to the renewal requirement until 1992, when renewal for those works was made automatic by statute. The term for these works was extended to 75 years in 1976, and then to 95 years in 1998.
These basic changes were important steps toward the United States’ assumption of a more prominent role in the international copyright community. Specifically, these changes harmonized U.S. copyright law with prevailing international norms, moving the U.S. closer to membership in the Berne Convention. Berne — the oldest and most widely accepted international agreement on the protection of literary and artistic works — forbids “formalities” such as registration and renewal as a condition to copyright protection. The prohibition on formalities has been a fundamental principle of international copyright protection for nearly a century, and remains important today.
Moreover, there was substantial evidence presented during consideration of the 1976 Act that the formalities such as renewal and notice, when combined with drastic penalties like forfeiture of copyright, served as a “trap for the unwary” and caused the loss of many valuable copyrights.
Subject Matter of Copyright
Under Section 102 of the Act, copyright protection extends to "original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device." The Act defines "works of authorship" as any of the following:
- literary works,
- musical works, including any accompanying words,
- dramatic works, including any accompanying music,
- pantomimes and choreographic works,
- pictorial, graphic, and sculptural works,
- motion pictures and other audiovisual works, and
- sound recordings.
An eighth category, architectural works, was added in 1990.
The wording of Section 102 is significant mainly because it effectuated a major change in the mode of United States copyright protection. Under the last major statutory revision to U.S. copyright law, the 1909 Copyright Act, federal statutory copyright protection attached to original works only when those works were 1) published and 2) had a notice of copyright affixed. State copyright law governed protection for unpublished works before the adoption of the 1976 Act, but published works, whether containing a notice of copyright or not, were governed exclusively by federal law. If no notice of copyright was affixed to a work and the work was, in fact, published in a legal sense, the 1909 Act provided no copyright protection and the work became part of the public domain. Under the 1976 Act, however, Section 102 says that copyright protection extends to original works that are fixed in a tangible medium of expression. Thus, the 1976 Act broadened the scope of federal statutory copyright protection from published works to works that are fixed. The Act does not require that a copyright symbol appear on a work for the work to be covered by copyright protection, rather, the Act requires only that the work be original and fixed.
- the right to reproduce (copy),
- the right to create derivative works of the original work,
- the right to sell, lease, or rent copies of the work to the public,
- the right to perform the work publicly (if the work is a literary, musical, dramatic, choreographic, pantomime, motion picture, or other audiovisual work), and
- the right to display the work publicly (if the work is a literary, musical, dramatic, choreographic, pantomime, pictorial, graphic, sculptural, motion picture, or other audiovisual work).
The Act was amended in 1995 to include a sixth exclusive right—the right to perform a sound recording by means of digital audio.
Exceptions and Limitations
The exclusive rights are not absolute. They are subject to specific exceptions and limitations, and contain “built-in First Amendment accommodations," which are set out in sections 102(b), 107 to 122 of the Copyright Act. These exceptions describe certain uses of copyrighted works that may be made freely, without permission.
Congress and the courts have long recognized that allowing some reasonable uses of copyrighted works without permission or compensation is fully consistent with and sometimes required by the ultimate goal of copyright: to promote the progress of knowledge. Creative works inspire new creations, which in turn inspire others, but this “engine of free expression” does not function unless the works so created are made available to the public.
There are certain public interests that on balance outweigh copyright rights in certain circumstances. Where Congress has found that public policy concerns warrant exceptions or limitations, it has tried to circumscribe the exception or limitation so that it complements the fundamental aims of copyright law and preserves the incentives to create or to invest in the creation of new works.
In crafting exceptions, Congress and the courts have been mindful of the need to avoid harm to the incentives to create and disseminate works of authorship that copyright law was designed to foster and still serve the public good by ensuring the dissemination of knowledge. The legislative history of the 1976 Copyright Act and its amendments illustrates that Congress, in creating exceptions, is influenced by notions of what is fair and reasonable, mindful that an exception should not swallow the affected right or interfere with the incentive to create and disseminate original works of authorship.
In considering exceptions and limitations to copyright, Congress must be mindful of relevant U.S. treaty obligations. The principal international copyright treaty is the Berne Convention for the Protection of Literary and Artistic Works. Article 9(2) of the Berne Convention limits the nature and scope of exceptions to copyright rights that members (including the United States) may create. Article 9(2) provides:
|“||It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.||”|
Exceptions and limitations must thus satisfy a three-step test: (1) they must relate to “certain special cases,” (2) they may not conflict with a normal exploitation of the work, and (3) they may not unreasonably prejudice the author’s legitimate interests. Berne article 9(2) refers only to reproduction rights, but the World Intellectual Property Organization (WIPO) Copyright Treaty and the WIPO Performances and Phonograms Treaty, to which the United States has also adhered, provide that all rights granted under those treaties will be governed by the Berne article 9(2) standard.
While the Berne Convention itself has no enforcement mechanism, the requirements of Berne were incorporated into the World Trade Organization (WTO) Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS) and are now subject to the WTO dispute resolution procedures. Accordingly, the United States is subject to sanctions in WTO enforcement proceedings if its copyright exceptions exceed what is permitted under the three-step test.
Additionally, the fair use defense to copyright infringement was codified for the first time in Section 107 of the 1976 Act. Fair use was not a novel proposition in 1976, however, as federal courts had been using a common law form of the doctrine since the 1840s (an English version of fair use appeared much earlier). The Act codified this common law doctrine with little modification. Under Section 107, the fair use of a copyrighted work is not copyright infringement, even if such use technically violates Section 106. While fair use explicitly applies to use of copyrighted work for criticism, news reporting, teaching, scholarship, or research purposes, the defense is not limited to these areas.
The Act gives four factors to be considered to determine whether a particular use is a fair use:
- the purpose and character of the use (commercial or educational, transformative or reproductive);
- the nature of the copyrighted work (fictional or factual, the degree of creativity);
- the amount and substantiality of the portion of the original work used; and
- the effect of the use upon the market (or potential market) for the original work.
Term of Protection
Previous copyright law set the duration of copyright protection at twenty-eight years with a possibility of a twenty-eight year extension, for a total maximum term of fifty-six years. The 1976 Act, however, substantially increased the term of protection. Section 302 of the Act extended protection to "a term consisting of the life of the author and 50 years after the author's death." In addition, the Act created a static seventy-five year term (dated from the date of publication) for anonymous works, pseudonymous works, and works made for hire. In 1998 the Sonny Bono Copyright Term Extension Act extended copyright protection to the duration of the author's life plus seventy years for general copyrights and to ninety-five years for works made for hire.
Transfer of Copyright
Section 204 of the Act governs the transfer of ownership of copyrights. The section requires a copyright holder to sign a written instrument of conveyance that expressly transfers ownership of the copyright to the intended recipient for a transfer to be effective. Prior case law on this issue was conflicting, with some cases espousing a rule similar to section 204 and others reaching a quite different conclusion. A 1942 New York case, for example, held the opposite — the court said that while a copyright in a work is distinct from a property right in the work, the copyright must be expressly withheld by the author if the work is sold or it will automatically transfer with the property right in the work. While the 1976 Act retains the property right/copyright distinction (in Section 202), Section 204 eliminates the inconsistent common law by assuming that the copyright is withheld by the author unless it is expressly transferred.
Registration and Deposit
According to Section 408 of the Act, registration of a work with the U.S. Copyright Office is not a prerequisite for copyright protection. The Act does, however, allow for registration, and gives the U.S. Copyright Office the power to promulgate the necessary forms. Aside from Copyright Office paperwork, the Act requires only that one copy, or two copies if the work has been published, be deposited with the Copyright Office to accomplish registration. Though registration is not required for copyright protection to attach to a work, Section 411 of the Act does require registration before a copyright infringement action by the owner of the copyright in the work can proceed. Even if registration is denied, however, a copyright infringement action can continue if the owner of the copyright in the work joins the Copyright Office as a defendant, requiring the court to determine the copyrightability of the work before addressing the issue of infringement.
- See H.R. Rep. 94-1476.
- See H.R. Rep. 94-1476.
- Righting Copyright, Time, Nov. 1, 1976, at 92.
- 17 U.S.C. §102(a).
- Pub. L. 94-553, §302(a), 90 Stat. 2541 (1976).
- Copyright Renewal Act of 1992, title I of the Copyright Amendments Act of 1992, Pub. L. No. 102-307, 106 Stat. 264 (1992) (amending id. §304 to add an automatic renewal term).
- Berne Convention for the Protection of Literary and Artistic Works (Paris Act 1971) (hereinafter “Berne Convention” or “Berne”). The U.S. formally acceded to Berne in 1988. See Berne Convention Implementation Act, Pub. L. No. 100-568, 102 Stat. 2853 (1988).
- “The enjoyment and exercise of these rights shall not be subject to any formality; . . .” Berne Convention art. 5(2).
- Berne’s “no formalities” requirement has been incorporated by reference into the modern treaties addressing copyright. See Agreement on Trade-related Aspects of Intellectual Property Rights, Apr. 15, 1994, art. 9.1, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, Legal Instruments–Results of the Uruguay Round vol. 31, 33 I.L.M. 81, 87 (1994); WIPO Copyright Treaty, Apr. 12, 1997, art. 3, S. Treaty Doc. No. 105-17 (1997), 36 I.L.M. 65, 69 (1997); WIPO Performances and Phonograms Treaty, Apr. 12, 1997, art. 20, S. Treaty Doc. No. 105-17 (1997), 36 I.L.M. 76, 80 (1997).
- See, e.g., H.R. Rep. No. 94-1476, at 134 (1976) (“One of the worst features of the present copyright law is the provision for renewal of copyright. A substantial burden and expense, this unclear and highly technical requirement results in incalculable amounts of unproductive work. In a number of cases it is the cause of inadvertent and unjust loss of copyright. Under a life-plus-50 system the renewal device would be inappropriate and unnecessary.”); Copyright Law Revision: Hearings on S. 1006 before the Subcomm. on Pat., Trademarks, and Copyrights of the Comm. on the Judiciary, U.S. Senate, 89th Cong. 68 (1965) (statement of Abraham Kaminstein, Register of Copyrights) (“It is important for the revised term provisions to do away with the present system of copyright renewal, which is a nightmare of complexity and which frequently results in the inadvertent loss of protection.”); Copyright Law Revision: Hearings on S. 597 Before the Subcomm. on Pat., Trademarks, and Copyrights of the Comm. of the Judiciary, U.S. Senate, 90th Cong. 37 (1967) (statement of John Dos Passos, Authors League of America) (“The present system by which copyright has to be renewed every 28 years has worked a great deal of hardship. It is very easy for an author to let the time of renewal slip by. A number of American and foreign authors or their heirs have lost their copyrights through ignorance or inadvertence. A man who makes his living by writing finds it hard to keep track of a great number of different items. In some cases, the renewal fees can become a real burden. If you do not renew the copyright at the specified time, there is no remedy whatsoever.”).
- 17 U.S.C. 102
- Id. §106.
- Eldred v. Ashcroft, 537 U.S. 186, 219 (2003) (citing Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 560 (1985)).
- The general principle is that courts should resort to legislative history only if the statute is not clear on its face. See, e.g., Ardestani v. INS, 502 U.S. 129, 135-36 (1991) (“The strong presumption that the plain language of the statute expresses congressional intent is rebutted only in rare and exceptional circumstances . . . when a contrary legislative intent is clearly expressed.”) Reference to legislative history is, however, prevalent in copyright cases. See, e.g., Committee For Creative Non-Violence v. Reid, 490 U.S. 730, 743-49 (1989); Bonneville Int’l Corp. v. Peters, 347 F.3d 485, 496-99 (3d Cir. 2003).
- These treaties technically do not preclude the United States from imposing broader exceptions with respect to works of its own authors.
- A WTO panel ruling that §110(5) of the U.S. Copyright Act violates the three-step test is currently the authoritative interpretation of component parts of that test. Panel Report, United States — Section 110(5) of the U.S. Copyright Act, WT/DS160/R (June 15, 2000). See also 1 Sam Ricketson & Jane C. Ginsburg, International Copyright and Neighbouring Rights 759-78 (2006). For a condensed description of the ruling, see The Register of Copyrights, Report on Orphan Works 61-65 (2006).
- Id. §107.
- Id. §302.
- Id. §204.
- Id. §408.
- Id. §411.
- US Copyright Office, Title 17.
- Cornell Law School, on Copyright.
- World wide school.org
- New York Law School Law Review, The Complete Guide to the New Copyright Law (Lorenz Press Inc. 1977).
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