The Copyright Act of 1976 attempted to correct the imbalance between the competing rights of copyright owners and the users of copyrighted material that had developed as a result of technological changes since the previous revision of the law.
Prior to enactment of the 1976 Copyright Act, which became effective on January 1, 1978, the last wholesale revision of U.S. copyright law had been made in 1909. In the intervening decades, technological advances in communications rendered many provisions of the 1909 act ineffective. A number of efforts to amend the copyright law in piecemeal fashion were introduced, but it was not until an appropriations act in 1955 provided funds for research by the Copyright Office of the Library of Congress that a more general effort to revise the copyright law was undertaken.
Congressional hearings on proposed revisions began on May 26, 1965, before the House Judiciary Subcommittee on Courts, Civil Liberties, and the Administration of Justice, which ultimately voted favorably on the proposed legislation. Prior to approving the bill, however, the subcommittee jettisoned an entire section devoted to copyright issues raised by cable television’s
Active debate on the copyright bill resumed in 1974 with the Ninety-third Congress. The bill finally passed in the Senate on February 19, 1976, and in the House of Representatives on September 22, 1976. President Gerald R. Ford signed the bill into law on October 19, 1976.
The new copyright statute was divided into eight chapters. The first chapter defined the subject matter of copyright, stated what rights copyright affords, and outlined the limitations on those rights. Chapter 2 was concerned with the ownership and transfer of copyrights. The third chapter dealt with the duration of copyrights. Chapter 4 dealt with formalities such as the form and placement of copyright notice and the details of depositing and registering a copyrighted work. Chapter 5 addressed copyright infringement and its remedies. Chapter 6 concerned the manufacture, importation, and public distribution of copies. Chapter 7 dealt with the organization and responsibilities of the Copyright Office. Finally, chapter 8 established the Copyright Royalty Tribunal.
Perhaps the most conspicuous change in U.S. copyright law had to do with the utilization, in the 1976 act, of compulsory licenses—such as the annual fees levied on jukeboxes—to balance the competing interests of copyright owners and users. Analogously, several sections of the new act established statutory royalty rates, such as those connected with secondary transmission by cable television, the collection of which was to be overseen by the Copyright Royalty Tribunal,
Less conspicuously, but more profoundly, the statute amended U.S. copyright law by making four major changes: abolishing common-law copyright; changing the concept of copyright by clarifying what it protects; creating an electronic copyright to supplement the print copyright; and codifying the doctrine of fair use. In addition, the statute marked, as noted by Barbara Ringer, then the register of copyrights, a shift in the philosophical underpinnings of copyright, resolving a centuries-old debate whether copyright was a natural law property right or only a statutory grant of limited monopoly, in favor of the latter. Chapter 1 of the act opens with a proclamation of the exclusive rights of copyright owners, which are five: the right to reproduce a work; the right to prepare derivative works, such as abridgments; the right to distribute copies of a work to the public; the right to perform a work in public; and the right to display a work in public.
Prior to the 1976 act, copyright had been governed by two systems of law: federal statutory copyright and common-law copyright, which was largely the province of individual states. By decreeing that a work was copyrighted the moment it was fixed in a tangible medium of expression, the new statute did away with the concept of common-law copyright, which previously had governed works prior to publication, when statutory law took over.
The elimination of common-law copyright
Common-law copyright lived on, however, in a new copyright created by the 1976 statute: the electronic copyright. The electronic copyright was meant to cover television and also apply to computers and software. It differed fundamentally from print copyright in that the subject matter consisted of works that are performed rather than published. These performances—for example, a live telecast of a National Football League game—may or may not be based on writing of some kind and may have no author per se. The statute gets around these requirements by making performance equivalent to publication if any fixation (even simultaneous transmission and recording) takes place and making the employer of those creating the work its “author.” The electronic copyright is thus equivalent to common-law copyright protection of an improvised stage performance.
The fourth, and potentially the most far-reaching, major change introduced by the 1976 act was the codification of what had always been a judicially determined doctrine limiting the powers of copyright holders, the doctrine of fair use. American copyright law originated with the U.S. Constitution, which, in article I, section 8, clause 8, empowers Congress “to promote the progress of science and the useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” The original idea was to provide creators with the incentive of a limited monopoly while at the same time allowing those who followed to build on ideas that already had been formulated and disseminated. This is clearly a delicate balance to maintain, requiring constant adjustment. American law traditionally responded by allowing fair use to remain a rule of reason developed and applied by the judiciary. Even when codified, the fair use doctrine consisted of a number of significantly nonexclusive factors that are reconfigured with each new infringement case that arises.
Section 107, the fair use section of the 1976 act, was not intended to change previous judicial interpretations of the doctrine. Section 107 was loosely formulated, refraining from formally defining “fair use” and including a list of exemptions from the restrictions of copyright, such as criticism and research. The section also included a list of four factors to be considered by judges when weighing fair use defenses raised against claims of copyright infringement. First was the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes. Second was the nature of the copyrighted work. Third was the amount and substantiality of the portion used in relation to the copyrighted work as a whole. The fourth consideration was the effect of the use on the potential market for or value of the copyrighted work. The fact that a work is unpublished was not to bar a finding of fair use.
The final proviso, indicating that even unpublished work is subject to fair use, was an addition to the act, adopted by Congress in 1992 largely in response to constriction of the fair use doctrine resulting from several Supreme Court
In both the Nation and Salinger cases, the courts refused to acknowledge as fair use what might in an earlier time have been seen as minimal borrowing. One of the pivotal issues in both cases was the unpublished nature of the infringed works. As the Supreme Court reasoned in the Nation case, perhaps because the fair use doctrine was based on the author’s implied consent to reasonable use of his or her work upon publication, fair use was not traditionally recognized as a defense to charges of copying works not yet released for public consumption.
Arguably, the fair use doctrine was intended to protect copyright owners from competitors, not consumers. In the Salinger case, however, fair use was pressed into service as a rationale for censorship. In this case, the writer J. D. Salinger
When the fair use proviso regarding unpublished works was proposed, largely in reaction to demands made by reporters, historians, biographers, and book publishers, it was vigorously opposed by the computer software industry, which feared that such a change in the copyright law would legitimate already rampant piracy of programs. These copyright owners argued that fair use of their products, unlike books, would of necessity involve extensive copying. The battle between these interest groups was reflected in congressional debate over the proviso, which raged for two years. Finally, a compromise was reached late in 1992, with the Senate adopting the seemingly restrictive language of the House bill but adding, in the legislative history attached to the bill, that its intent was “to clearly and indisputably reject the view that the unpublished nature of the work triggers a virtual per se ruling against a finding of fair use.”
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Grossman, George S. Omnibus Copyright Revision Legislative History. 1976. Reprint. Buffalo, N.Y.: William S. Hein, 2001. Contains the text of congressional reports and hearings related to the copyright law revisions. -
Kozak, Ellen M. Every Writer’s Guide to Copyright and Publishing Law. 3d ed. New York: Henry Holt, 2004. Handbook designed for writers provides clear background information on U.S. copyright law and revisions in the law over time. Includes index. -
Miller, Jerome K. U.S. Copyright Documents: An Annotated Collection for Use by Educators and Librarians. Littleton, Colo.: Libraries Unlimited, 1981. In addition to highlighting and annotating key parts of the Copyright Act affecting its target audience, this volume includes the full text of the act, together with relevant excerpts from its legislative history. -
New York Law School Law Review. The Complete Guide to the New Copyright Law. Dayton, Ohio: Lorenz Press, 1977. Originally published in the New York Law School Law Review in 1976 and 1977, this two-part symposium was intended to provide timely advice to attorneys. This collection of essays by copyright experts provides valuable insights for laypersons, particularly in the second section, which contains analyses of the differences between the 1909 and 1976 acts. -
Patterson, L. Ray, and Stanley W. Lindberg. The Nature of Copyright: A Law of Users’ Rights. Athens: University of Georgia Press, 1991. As its title indicates, this is a work with a point of view. Divided into three substantive sections: The first examines the history of U.S. copyright law, the second looks at copyright and the Constitution, and the third discusses the balance between authors’ and users’ rights. -
Strong, William S. The Copyright Book: A Practical Guide. 4th ed. Cambridge, Mass.: MIT Press, 1998. Provides a straightforward presentation of the rights and responsibilities connected with copyright law, addressed to the average citizen. In addition to being revised every few years (this is the third update of the fourth edition), the work is supplemented more frequently by unbound updates. -
White, Herbert S., ed. The Copyright Dilemma. Chicago: American Library Association, 1978. Collection from the proceedings of a 1977 conference includes chapters aimed at specific copyright users as well as more generalized essays about various aspects of the 1976 act.
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