Editing 1976 Copyright Act

== Citation ==

'''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]].

== Introduction ==

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 holder]]s, codified the doctrine of "[[fair use]]", and converted the [[copyright duration|term]] of [[copyright]]s 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, [[U.S. Congress|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]].<ref>''See'' [http://homepages.uc.edu/~armstrty/H_R_Rep_No_94-1476.pdf H.R. Rep. 94-1476].</ref>

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 for the Protection of Literary and Artistic Works|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]], [[U.S. Congress|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.<ref>''See'' [http://homepages.uc.edu/~armstrty/H_R_Rep_No_94-1476.pdf H.R. Rep. 94-1476].</ref> 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."<ref>''Righting Copyright'', Time, Nov. 1, 1976, at 92.</ref> 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'' . . . ."<ref>''Id.''</ref> The other intent of the extension was to protect authors' rights "for life plus 50 years&mdash;the most common term internationally and the one Mark Twain fought for in his lifetime."<ref>''Id.''</ref> 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."<ref>''Id.''</ref>

== Significant Portions of the Act ==

The 1976 Act, through its terms, [[Copyright preemption|preempts]] all previous copyright law in the United States. The [[Copyright preemption|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 [[work of authorship|works of authorship]] upon [[fixation]] in any [[tangible medium of expression]].<ref>17 U.S.C. §102(a).</ref> [[Work]]s need not be [[copyright registration|registered]] with the [[Copyright Office]], or published with proper [[copyright notice|notice]], to obtain federal [[copyright protection]], as was the case under the [[1909 Act]].  The 1976 Act thus made it substantially easier for [[author]]s to obtain protection for their [[work]]s.   

The 1976 Act made maintaining protection in those [[work]]s substantially easier as well. Prior to the 1976 Act, the [[copyright duration|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 duration|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.<ref>Pub. L. 94-553, §302(a), 90 Stat. 2541 (1976).</ref> This general term applies to works created on or after January 1, 1978.<ref>''Id.''</ref> [[Work]]s created before then and in the first term of copyright under the old law were still subject to the [[renewal term|renewal requirement]] until 1992, when renewal for those works was made automatic by statute.<ref>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).</ref> The term for these [[work]]s 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 [[harmonization|harmonized]] U.S. copyright law with prevailing international norms, moving the U.S. closer to membership in the [[Berne Convention]].<ref>[[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).</ref> [[Berne]] &mdash; the oldest and most widely accepted international agreement on the protection of literary and artistic works &mdash; forbids “formalities” such as [[copyright registration|registration]] and [[renewal term|renewal]] as a condition to [[copyright protection]].<ref>“The enjoyment and exercise of these rights shall not be subject to any formality; . . .” [[Berne Convention]] art. 5(2).</ref> The prohibition on formalities has been a fundamental principle of international copyright protection for nearly a century, and remains important today.<ref>[[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).</ref>  

Moreover, there was substantial evidence presented during consideration of the 1976 Act that the formalities such as [[renewal term|renewal]] and [[copyright notice|notice]], when combined with drastic penalties like forfeiture of [[copyright]], served as a “trap for the unwary” and caused the loss of many valuable [[copyright]]s.<ref>''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 term|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 [[renewal term|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 [[renewal term|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 [[author]]s or their heirs have lost their [[copyright]]s 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 [[renewal term|renew]] the [[copyright]] at the specified time, there is no remedy whatsoever.”).</ref>

=== Subject Matter of Copyright ===

Under [http://www.copyright.gov/title17/92chap1.html#102 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 work]]s, including any accompanying words, 
# [[dramatic work]]s, including any accompanying music, 
# [[pantomimes and choreographic works]], 
# [[pictorial, graphic, and sculptural works]], 
# [[motion pictures]] and other [[audiovisual works]], and 
# [[sound recordings]].<ref>[http://www.copyright.gov/title17/92chap1.html#102 17 U.S.C. 102]</ref>

An eighth category, architectural works, was added in 1990.

The wording of [http://www.copyright.gov/title17/92chap1.html#102 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 [[copyright notice|notice of copyright]] affixed. State copyright law governed protection for [[unpublished works]] before the adoption of the 1976 Act, but [[published work]]s, whether containing a [[copyright notice|notice of copyright]] or not, were governed exclusively by federal law. If no [[copyright notice|notice of copyright]] was affixed to a work and the work was, in fact, [[published]] in a legal sense, the [[1909 Copyright Act|1909 Act]] provided no copyright protection and the work became part of the [[public domain]]. Under the 1976 Act, however, [http://www.copyright.gov/title17/92chap1.html#102 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]].

=== Exclusive Rights ===

[http://www.copyright.gov/title17/92chap1.html#106 Section 106] grants five [[exclusive rights]] to copyright holders: 

# the right to [[reproduce]] (copy), 
# the right to create [[derivative work]]s 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 works|literary]], [[musical work|musical]], [[dramatic work|dramatic]], [[pantomimes and choreographic works|choreographic, pantomime]], [[motion pictures|motion picture]], or other [[audiovisual works|audiovisual work]]), and 
# the right to [[display]] the work [[publicly]] (if the work is a [[literary works|literary,]] [[musical work|musical]], [[dramatic work|dramatic]], [[pantomimes and choreographic works|choreographic, pantomime]], [[pictorial, graphic, and sculptural works|pictorial, graphic, sculptural]], [[motion pictures|motion picture]], or other [[audiovisual works|audiovisual work]]).<ref>[http://www.copyright.gov/title17/92chap1.html#106 ''Id.'' §106].</ref>

The Act was amended in 1995 to include a sixth exclusive right&mdash;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,"<ref>[[Eldred v. Ashcroft]], 537 U.S. 186, 219 (2003) (''citing'' [[Harper & Row v. Nation Enterprises|Harper & Row Publishers, Inc. v. Nation Enters.]], 471 U.S. 539, 560 (1985)).</ref> which are set out in sections 102(b), 107 to 122 of the Copyright Act. These exceptions describe certain uses of [[copyrighted work]]s that may be made freely, without permission. 

[[U.S. Congress|Congress]] and the courts have long recognized that allowing some reasonable uses of [[copyrighted work]]s 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 [[work]]s so created are made available to the public. 

There are certain public interests that on balance outweigh copyright rights in certain circumstances. Where [[U.S. Congress|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 [[work]]s.

In crafting exceptions, [[U.S. Congress|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 [[U.S. Congress|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]].<ref>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).</ref>

In considering exceptions and limitations to copyright, [[U.S. Congress|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: 

{{Quote|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.<ref>These treaties technically do not preclude the United States from imposing broader exceptions with respect to [[work]]s of its own [[author]]s.</ref> 

While the [[Berne Convention]] itself has no enforcement mechanism, the requirements of [[Berne Convention|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.<ref>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 &mdash; 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).[http://www.copyright.gov/orphan/orphan-reportfull.pdf]</ref>

=== Fair Use ===

Additionally, the [[fair use]] defense to [[copyright infringement]] was codified for the first time in [http://www.copyright.gov/title17/92chap1.html#107 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 [http://www.copyright.gov/title17/92chap1.html#107 Section 107], the [[fair use]] of a [[copyrighted work]] is not [[copyright infringement]], even if such use technically violates [http://www.copyright.gov/title17/92chap1.html#106 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 use|commercial]] or educational, [[transformative use|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]].<ref>[http://www.copyright.gov/title17/92chap1.html#107 ''Id.'' §107].</ref> 

The Act was later amended to extend the [[fair use]] defense to [[unpublished work]]s.

=== 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. [http://www.copyright.gov/title17/92chap1.html#302 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."<ref>[http://www.copyright.gov/title17/92chap3.html#302 ''Id.'' §302].</ref> In addition, the Act created a static seventy-five year term (dated from the date of publication) for [[anonymous work|anonymous works]], [[pseudonymous work|pseudonymous works]], and [[work made for hire|works made for hire]]. In 1998 the [[Sonny Bono Copyright Term Extension Act]] extended [[copyright]] protection to the [[copyright duration|duration]] of the [[author]]'s life plus seventy years for general [[copyright]]s and to ninety-five years for [[work made for hire|works made for hire]].

=== Transfer of Copyright ===

[http://www.copyright.gov/title17/92chap1.html#204 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.<ref>[http://www.copyright.gov/title17/92chap2.html#204 ''Id.'' §204].</ref> Prior case law on this issue was conflicting, with some cases espousing a rule similar to [http://www.copyright.gov/title17/92chap1.html#204 section 204] and others reaching a quite different conclusion. A 1942 New York case, for example, held the opposite &mdash; 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 [http://www.copyright.gov/title17/92chap1.html#202 Section 202]), [http://www.copyright.gov/title17/92chap1.html#204 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 [http://www.copyright.gov/title17/92chap1.html#408 Section 408] of the Act, [[Copyright registration|registration]] of a work with the [[U.S. Copyright Office]] is not a prerequisite for copyright protection.<ref>[http://www.copyright.gov/title17/92chap4.html#408 ''Id.'' §408].</ref> The Act does, however, allow for [[Copyright registration|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 [[Copyright deposit|deposited]] with the [[Copyright Office]] to accomplish [[Copyright registration|registration.]] Though [[Copyright registration|registration]] is not required for copyright protection to attach to a [[work]], [http://www.copyright.gov/title17/92chap1.html#411 Section 411] of the Act does require [[Copyright registration|registration]] before a [[copyright infringement]] action by the [[Copyright owner|owner]] of the copyright in the [[work]] can proceed.<ref>[http://www.copyright.gov/title17/92chap4.html#411 ''Id.'' §411].</ref> Even if [[Copyright registration|registration]] is denied, however, a [[copyright infringement]] action can continue if the [[Copyright owner|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 [[copyright infringement|infringement]].

== References ==
<references />

== See also ==

* [[Copyright]]
* [[Digital Millennium Copyright Act]]
* [[Fair use]]

== External resources ==

* [http://www.copyright.gov/title17/ US Copyright Office, Title 17.]
* [http://www.law.cornell.edu/copyright/copyright.table.html Cornell Law School, on Copyright.]
* [http://www.worldwideschool.org/library/books/socl/law/CopyrightActof1976/Chap1.html World wide school.org]
* New York Law School Law Review, ''The Complete Guide to the New Copyright Law'' (Lorenz Press Inc. 1977).


{{Wikipedia|1976 Copyright Act}}
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[[Category:Legislation-U.S.-Federal]]
[[Category:Legislation-U.S.-Copyright]]
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