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History

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Statutory Changes

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The U.S. Congress first exercised its power to enact copyright legislation with the Copyright Act of 1790. The Act secured an author the exclusive right to publish and vend "maps, charts and books" for a term of 14 years, with the right of renewal for one additional 14 year term if the author was still alive. The act did not regulate other kinds of writings, such as musical compositions or newspapers and specifically noted that it did not prohibit copying the works of foreign authors. The vast majority of writings were never registered — between 1790 and 1799, of 13,000 titles published in the United States, only 556 works were registered.

Copyright law has been modified many times since to encompass new technologies such as music recording, to extend the duration of protection, and to make other changes. U.S. courts have interpreted this clause of the Constitution to say that the ultimate purpose of copyrights is to encourage the production of creative works for the public benefit, and that therefore the interests of the public are primary over the interests of the author when the two conflict. These rulings have since been formalized into fair use laws and decisions. Certain attempts by copyright owners to restrict uses beyond the rights provided for by copyright law may also subject them to the copyright misuse doctrine, preventing enforcement against infringers.

There have been many changes to the US copyright statutes since the first copyright statute was enacted in 1790. A non-exhaustive list of substantial revisions to the U.S. Copyright statute includes:[1]

Prior to 1976

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  • Copyright Act of 1790.[2] The first U.S. copyright act, the 1790 Act established U.S. copyright with term of 14 years with 14-year renewal
  • Copyright Act of 1831.[3] The 1831 Act was the first general revision of U.S copyright law (i.e., a complete rewrite of the copyright statute, rather than an amendment to the existing copyright statute). Highlights of the 1831 act included:
    • the initial term was changed from 14 years to 28 years, although the second term remained 14 years;
    • protection for musical compositions (although without a right of public performance)
    • changes to the notice requirements (which had been added to the 1790 Act by amendment in 1802[4])
  • Copyright Act of 1870.[5] The 1870 Act was the second general revision. Among the changes it introduced:
    • The Library of Congress assumed responsibility for copyright administration, and set up a Copyright Department that soon grew into the Copyright Office;
    • Protection was extended to paintings, drawings, lithographs, statues and "models or designs intended to be perfected as works of fine art."
    • Some changes to the notice and deposit requirements.
  • The International Copyright Act of 1891.[6] Sometimes referred to as the "Chace Act," after its sponsor Senator Jonathan Chace, the 1891 Act for the first time extended U.S. copyright protection to certain works of foreign origin. The protection was only available if:
    • either foreign country in question was party to a reciprocal copyright treaty with the United States, or the President had issued a proclamation that the country provided protection to U.S. authors on the same basis that it provided to its own citizens;
    • the foreign author complied with all formalities (such as copyright notice ad deposit) required by U.S. law; and
    • the works protected were manufactured within the United States.
  • Copyright Act of 1909.[7] The 1909 Act was the third general revision. Its changes included:
    • A substantial expansion of the works protected. Rather than itemize specific types of works protected, the 1909 act simply extended protection to "all the writings" of an author.
    • Exempted books published in non-English language and photographs of foreign origin from the requirement that the works be printed within the United States
    • Starting the initial copyright term from the date of first publication, rather than the copyright filing date.
    • Changing the renewal term to 28 years, for a combined term of 56 years.
  • The 1912 "Townsend Amendment"[8] expressly provided for protection of motion pictures, which had previously been registered as photographs.
  • The 1947 Codification[9] made no substantive changes to the then-existing copyright law, but codified the 1909 Act and all of its amendments into Title 17 of the United States Code.
  • The 1971 Sound Recording Act[10] extended, effective February 15, 1972, protection to sound recordings, i.e., the recorded performance of a musical work or other audibly perceived work. This protection did not include a public performance right, but only a right against reproduction and distribution.

The 1976 Act

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The Copyright Act of 1976[11] was the fourth, the most recent, and by far the most substantial general revision of U.S. copyright law, took effect on January 1, 1978, and introduced sweeping changes, including:

    • Complete federalization of copyright. Previously, protection of works that were both unpublished and unregistered had been the domain of the various states, but the 1976 Act placed all of copyright under the federal system, and preeempted state copyright law.[12]
    • As part of the federalization, works were protected immediately upon creation ("fixation in a tangible medium of expression"), rather than requiring either publication or registration.[13]
    • increasing the renewal term for existing copyrights from 28 years to 47 years, for a total term of 75 years.
    • Elimination of the two-term (original and renewal) scheme for works other than those already protected under the 1909 Act. Instead, the 1976 Act introduced a term of the author's life plus 50 years. For works that could not be identified with a particular human author, such as works made for hire, it established a single term of 75 years from publication or 100 years from creation, whichever was longer.
    • Introduction of a "termination right," permitting authors or their descendants to terminate assignments made after a lengthy term of years had elapsed.
    • For the first time, expressly codifying the "fair use" exemption.[14]
    • Codifying numerous exceptions to the various rights under copyright, rather than leaving them to the courts.

Amendments to the 1976 Act

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The 1976 Act remains in force, and has had a number of significant amendments:

  • The Visual Artists Rights Act[18] (VARA) provided certain so-called "moral rights" for certain works of visual art, in addition to more traditional economic rights.[19] The moral rights implemented by VARA are:
    • the right to claim authorship of one's work;
    • the right to prevent the use of one's name on any work the author did not create;
    • the right to prevent use of one's name on any work that has been distorted, mutilated, or modified in a way that would be prejudicial to the author's honor or reputation;
    • right to prevent distortion, mutilation, or modification that would prejudice the author's honor or reputation; and
    • in certain cases, the right to object to destruction of one's work.
  • The Architectural Works Copyright Protection Act of 1990[20] expressly extended protection to architectural works.
  • The Copyright Renewal Act of 1992[21] made formally filing a renewal registration optional. Renewal was made optional, regardless of whether the copyright claimaint made a filing. This statute applied only to those pre-1978 works that still had an upcoming renewal term.
  • The Audio Home Recording Act of 1992[22] (AHRA) added Chapter 10 to the Copyright Act, regulating the importation and distribution of digital audio recording devices. AHRA included provisions for royalties to be collected on the sale of most pieces of digital audio recording equipment and media. It also included, in new section 1008,[23] a provision preventing a consumer from being sued for copyright infringement based on the personal noncommercial use of either digital and analog recoding devices and media.
  • The North American Free Trade Agreement (NAFTA) Implementation Act[24] made a number of changes to implement NAFTA. Most of these were superseded by the Uruguay Round Agreements Act, discussed below.
  • Uruguay Round Agreements Act (URAA) of 1994 implemented the Uruguay Round of the General Agreement on Tariffs and Trade (GATT). The most substantial changes made bu the URAA were:
    • restoration of expired copyrights, and in some cases vesting of an original copyright, in certain foreign works; primarily those that had either lost copyright protection for failure to comply with formalities such as copyright notice or renewal, or sound recordings that had been made before the U.S. recognized protection for such works in 1972;[25] and
    • A prohibition, in section 1101,[26] against bootlegging of live performances of musical works. Note that such works, not being fixed in a tangible medium of expression, are not subject to copyright, so this is technically not a change to copyright law. The statute does not call the prohibited acts "infringement" but instead says that those who perform such acts will be subject to the same remedies as an infringer would.
  • The Digital Performance Right in Sound Recordings Act of 1995[27] provided for performance rights in sound recordings, but only ior digital performances. The amendment primarily consisted of the inclusion of the digital performance right in section 106(6),[28] and a highly complex revision to section 114[29] detailing limitations on the new right.
  • The No Electronic Theft Act of 1997 (NET Act)[30] provided for criminal prosecution of infringers, even when there is no monetary profit or commercial benefit from the infringement. It set maximum penalties at five years in prison and $250,000 in fines, and also raised statutory damages by 50%.
  • The Sonny Bono Copyright Term Extension Act of 1998[31] added twenty years to copyright term:
    • For most post-1978 works, it changed the term from the life of the author plus 50 years to the life of the author plus 70 years.
    • For post-1978 works that could not be identified with a particular human author, such as works made for hire, it established a single term of 95 years (formerly 75 years) from publication or 120 years (formerly 100 years) from creation, whichever was longer.
    • For pre-1978 works, it increased the renewal term from 47 years to 67 years, for a total term (when combined with the 28-year initial term) of 95 years.
  • The Digital Millennium Copyright Act of 1998[32][33] made substantial changes to copyright, including:
    • prohibiting circumvention of copy-protection and access-control measures;[34]
    • adding section 1202,prohibiting unauthorized alteration of "copyright management information," i.e., information identifying the work, the author, the copyright owner, and in certain cases, the performer, writer or director of the work, as well as the terms and conditions for use of the work;[35] and
    • providing a "notice and take-down" procedure that, if followed by an internet service provider, immunizes the provider from suit based upon copyright infringement by one of its users.[36]
  • The Family Entertainment and Copyright Act of 2005[37] included two acts relating to copyright:
    • The Artist's Rights and Theft Prevention Act of 2005 (ART Act) criminalized the act of videotaping or filming the in-theater performance of a motion picture and trafficking in infringing copies of motion pictures before their release.[38]
    • Family Home Movie Act of 2005 provided an exemption allowing the creation of technology that can edit a DVD movie on the fly and create a censored version of that movie.[39]

Treaties and other international agreements

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Key international agreements affecting U.S. copyright law include:

The United States became a Berne Convention signatory in 1988, and the treaty entered into force with respect to the U.S. on March 1, 1989. The U.S. is also a party to TRIPS, which itself requires compliance with Berne provisions, and is enforceable under the WTO dispute resolution process. To meet the treaty requirements, protections were extended to architecture (where previously only building plans were protected from copying, not buildings, though currently the law makes exception for reproduction of buildings in photographs or paintings if they are ordinarily visible from a public place), and certain moral rights of visual artists.

Federalism concerns

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Historically, copyright protection was provided by a dual system under both federal and state laws. Federal law provided what was commonly called "statutory copyright" and the laws of each state would provide what was called "common-law copyright," even though many states have statutes governing copyright as well.

Roughly speaking, the old "statutory copyright" protected works that were registered and the old "common-law copyright" protected works that were not.

In 1976, however, Congress abolished all state copyright laws by declaring a complete federal preemption of state laws. The federal preemption provision is codified at 17 U.S.C. § 301(a), which states, in relevant parts:

On and after January 1, 1978, all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright ... in works of authorship that ... come within the subject matter of copyright ... are governed exclusively by this title. Thereafter, no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State.

The preemption is complete in all aspects of copyright protection. It covers protection so that a work that falls generally within the subject matter of copyright (such as, a writing) must either qualify to be protected under federal law, or it cannot be protected at all. State law cannot provide protection for a work that federal law does not protect.[40] It covers enforcement too. A person accused of copyright infringement cannot be prosecuted in state courts.[41]

It should be noted that the preemption clause only applies to works that are covered by the Copyright Act. Works that have "not been fixed in any tangible medium of expression are not covered."[42] "Examples would include choreography that has never been filmed or notated, an extemporaneous speech, original works of authorship communicated solely through conversations or live broadcasts, a dramatic sketch or musical composition improvised or developed from memory and without being recorded or written down."[43]


  1. ^ A far more detailed treatment may be found in Patry, William F. (1994). Copyright Law and Practice. Bureau of National Affairs. ISBN 9780871798565., and its supplements.
  2. ^ Act of May 21, 1790, 1st Cong., 2d Sess., 1 Stat. 124
  3. ^ Act of February 3, 1831, 21st Cong., 2d Sess., 4 Stat. 436.
  4. ^ Act of April 29, 1802, 7th Cong., 1st Sess., 2 Stat. 171
  5. ^ Act of July 8, 1870, §§ 85-111, 41st Cong., 2d Sess., 16 Stat. 198, 212-16.
  6. ^ Act of March 3, 1891, 26 Stat. 1106.
  7. ^ Act of March 4, 1909, Pub. L. No. 60-349, 60th Cong., 2d Sess., 35 Stat. 1075.
  8. ^ Act of August 24, 1912, Pub. L. No. 62-303, 62d Cong., 2d Sess., 37 Stat. 488
  9. ^ Act of July 30, 1947, Pub. L. No. 80-281, 80th Cong., 1st Sess., 61 Stat. 652.
  10. ^ Act of October 15, 1971, Pub. L. No. 92-140, 92d Cong., 1st Sess., 85 Stat. 391.
  11. ^ Act of October 19, 1976, Pub. L. No. 94-553, 94th Cong., 2d Sess., 90 Stat. 2541.
  12. ^ 17 U.S.C. § 301
  13. ^ 17 U.S.C. § 102
  14. ^ 17 U.S.C. § 107
  15. ^ Act of December 12, 1980, Pub. L. No. 96-517, § 10(b), 96th Cong., 1st Sess., 94 Stat. 3028.
  16. ^ 17 U.S.C. § 117
  17. ^ Act of October 31, 1988, Pub. L. No. 100-568, 100th Cong., 2d Sess., 102 Stat. 2854.
  18. ^ Act of December 1, 1990, Pub. L. No. 101-650 (tit. VI), 101st Cong., 2d Sess., 104 Stat. 5089, 5128.
  19. ^ 17 U.S.C. § 106A
  20. ^ Act of December 1, 1990, Pub. L. No. 101-650 (Tit. VII), 101st Cong., 2d Sess., 104 Stat. 5089, 5133.
  21. ^ Act of June 26, 1992, Pub. L. No. 102-307, 102d Cong., 2d Sess., 106 Stat. 264.
  22. ^ Act of October 28, 1992, Pub. L. No. 102-563, 102d Cong., 2d Sess., 106 Stat. 4237.
  23. ^ 17 U.S.C. § 1008
  24. ^ Act of December 8, 1993, Pub. L. No. 103-182, 103d Cong., 1st Sess., 107 Stat. 2057
  25. ^ 17 U.S.C. § 104A
  26. ^ 17 U.S.C. § 1101
  27. ^ Act of November 1, 1995, Pub. L. No. 104-39, 104th Cong., 1st Sess., 109 Stat. 336.
  28. ^ 106 U.S.C. § 6
  29. ^ 17 U.S.C. § 114
  30. ^ Act of December 16, 1997, Pub. L. No. 105�147, 105th Cong., 1st Sess.
  31. ^ Pub.L. 105-298 on October 27, 1998.
  32. ^ Act of October 28, 1998, Pub. L. No. 105-304, 112 Stat. 2860.
  33. ^ Digital Millennium Copyright Act of 1998, U.S. Copyright Office Summary
  34. ^ 17 U.S.C. § 1201
  35. ^ 17 U.S.C. § 1202
  36. ^ 17 U.S.C. § 512
  37. ^ Act of April 27, 2005 , Pub. L. No. 109-9, 119 STAT. 218.
  38. ^ 17 U.S.C. § 2319B
  39. ^ 17 U.S.C. § 110(11)
  40. ^ H.R. Rep. No. 1476, 94th Cong., 2d Sess., at 131 (1976)
  41. ^ Crow v. Wainwright, 720 F.2d 1224 (11th Cir. 1983), cert. denied, 469 U.S. 819 (1984). But see New Hampshire v. Nelson 150 N.H. 569 (2004). In Nelson, the defendant's conviction for receiving stolen property was affirmed. The "property" at issue was scanned copies of photographs that the defendant had removed from another's home. The defendant had returned the photographs, and the lack of any intent to permanently deprive the owner of the photos prevented prosecution based on removal of the physical photographs themselves. Thus, Nelson's conviction was based upon making and retaining the scanned copies.
  42. ^ S. Rpt. 94-473
  43. ^ S. Rpt. 94-473. See also Legislative history of Pub. L. 94–553
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