1976 Copyright Act

The Copyright Act of 1976 is a piece of United States copyright legislation and remains the primary basis of copyright law in the United States, as amended by several 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 became Public Law No. 94-553, 90 Stat. 2541 (1976) on October 19, 1976 and went into effect on January 1, 1978.

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, United States 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. See House Report number 94-1476.

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 U.S. 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. See House Report number 94-1476. 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 when President Gerald R. Ford signed it. 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 Copyright Act of 1909, but also includes all relevant common law and state copyright laws insofar as they conflict with the Act.

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:

1. literary works,
2. musical works, including any accompanying words,
3. dramatic works, including any accompanying music,
4. pantomimes and choreographic works,
5. pictorial, graphic, and sculptural works,
6. motion pictures and other audiovisual works, and
7. 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 Copyright Act of 1909, 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.

Exclusive Rights

Section 106 granted five exclusive rights to copyright holders:

1. the right to reproduce (copy),
2. the right to create derivative works of the original work,
3. the right to sell, lease, or rent copies of the work to the public,
4. the right to perform the work publicly (if the work is a literary, musical, dramatic, choreographic, pantomime, motion picture, or other audiovisual work), and
5. 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.

Fair Use

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:

1. the purpose and character of the use (commercial or educational, transformative or reproductive);
2. the nature of the copyrighted work (fictional or factual, the degree of creativity);
3. the amount and substantiality of the portion of the original work used; and
4. the effect of the use upon the market (or potential market) for the original work.

The Act was later amended to extend the fair use defense to unpublished works.

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 also

• copyright
• Digital Millennium Copyright Act

External links

• 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, ISBN 0-89328-013-5