Copyright Act of 1976

Shubha Ghosh

In the 1990s John Perry Barlow, former songwriter for The Grateful Dead and contemporary social commentator, announced that copyright law was dying. What prompted this prognosis was the birth and fast growth of the Internet. In a world where information could be readily produced and copied and distributed, Barlow reasoned, copyright law could not limit the ability of people to copy songs, books, and movies. Barlow's famous eulogy for copyright illustrates the challenges confronting the law in the twentieth century and into the twenty-first. Our story begins with the player piano and ends with Napster.

THE PIANO ROLL

Copyright law faced its first big challenge in the twentieth century when the Apollo Company began selling piano rolls that allowed pianos to play music without the aid of a pianist. In the nineteenth century, if an author wanted to protect a musical composition he or she obtained a copyright on the sheet music, the printed form of a musical composition. The analogy between sheet music and a printed book is easy enough to see. Courts, however, were confounded by the piano roll. The Supreme Court ruled in a famous 1908 case that Apollo could not copyright its piano rolls, a ruling that caused quite a stir in the player piano industry. Without copyright protection, anyone could copy the piano rolls and piracy would be rampant. Fortunately for the player piano industry, Congress enacted the Copyright Act of 1909, in which copyright protection was extended to "mechanical reproductions" of music. The 1908 case represented one of the first brushes between copyright and technology. The case, and Congress's response, resonates today in the complex treatment of software under current copyright law.

FILM

Film posed an initial challenge under the 1909 Copyright Act in 1911, in a case involving a dispute between the copyright owner of the novel Ben-Hur and the producers of the early film version of the book. In an important decision by Judge Oliver Wendell Holmes (a central figure in copyright law), the Supreme Court ruled that the film was not just a separate and different work from the novel but one that incorporated many of the novel's copyright-protected elements, such as story, character, and plot. The Court found that the film was an unauthorized derivative work, thus setting the stage for the pursuit of "movie rights" for newly published books. The case also illustrated the ability of the courts to interpret copyright law to deal with new industries and technologies.

TELEVISION

The advent of television in the 1940s sent shock waves through the field of copyright. While the piano roll was clearly distinguishable from a book, at least both were tangible objects. With television, courts had to deal with disputes involving the dissemination of intangible bits and streams of images that were magically captured by a cathode ray tube miles away. Many courts were befuddled, and the budding television industry had to rely on copyrights in written scripts or taped versions of the shows to protect their works against piracy. Such strategies, however, would not work for live broadcast, which comprised much of the industry's work early on. Much of these works, unless recorded or based on a written script, had no copyright protection.

Television also raised issues about what it meant legally to perform a work. Copyright law has protected not only against the copying of works, but also their unauthorized performance. The question arose in the late 1960s as to what it meant to perform a television program. In two cases, the Supreme Court was confronted with the question of whether the retransmission of a broadcast television show by a cable company was infringement of copyright. At the time, cable was a new industry and laws and regulations governing cable were practically nonexistent. The Supreme Court in both cases ruled that such retransmission was not copyright infringement. All the cable company did was capture the signal from the air and send it to a consumer with a cable box. There was no copying of the work, and no performance of the program in the transmission. In short, there was no violation of the copyrights of the broadcast television networks.

These rulings were an enormous boon to the emerging cable industry. In the Copyright Act of 1976, Congress did respond to these decisions by changing the definition of public performance to include "transmitting" of copyrighted works. Under this definition, what the cable companies did in the 1960s cases would be copyright infringement. The Copyright Act of 1976, however, did maintain the Supreme Court's gift to the cable industry by permitting the cable companies to continue retransmission as long as they paid money under a "compulsory license" for the retransmission. The legacy of these cases, however, continues as television broadcast becomes more sophisticated, with satellite systems, pay-per-view, and the possibility in the near future of digital downloads of television programs.

RECORDED MUSIC

Recording of music also was a source of controversy for copyright, especially as the technology of cassette tape recording improved in the 1950s and 1960s. Copyright protected music largely through protection of sheet music and mechanical reproduction, such as piano rolls or tapes. Performers of music, however, were not protected under copyright. This discrepancy created a quandary for copyright law and for the music industry. Traditionally, a songwriter who created a musical work would obtain copyright protection in the work when it was created and written down as sheet music.

A performer, however, received no copyright in the performance of the song. Anyone who could make an unauthorized copy of the song would be violating the rights of the songwriter but not of the performer. The Grateful Dead allowed audiences to tape their concerts because they liked to share their music, but other performers were not so generous and wanted to put an end to "bootleg" tapes. They lobbied Congress for copyright protection for the recordings of their performances. Congress responded in 1972 by amending the Copyright Act of 1909 to permit copyright protection for sound recordings. The consequence is that performers were given certain rights in the reproduction and distribution of their recorded performances. In 1994 Congress extended protection to live performances of musical works by making it a crime to record live performances without the permission of the performing musicians.

THE PHOTOCOPIER

The invention of the photocopier, which allowed everyone to make copies of pages from books and other printed materials at the push of a button, further challenged copyright law. Legal battles ensued both in the courts and in Congress. Libraries were often at the center of the legal controversies. An important case involving copying by the National Library of Medicine went all the way to the Supreme Court in the mid-1970s. The case, however, resulted in a 4–4 decision by the Court that essentially upheld the lower court's ruling that the copying by the library was not infringement. Needless to say, the courts provided little clarity about the law.

Into this quagmire stepped Congress. In fact, the development of the photocopier caused Congress to rethink copyright law in the 1950s and spearheaded the movement to reform copyright law that resulted in the Copyright Act of 1976. Congress at one point toyed with the idea of levying a surcharge on the sale of photocopiers, the proceeds from which would be used to reimburse copyright owners. That scheme proved unworkable. The 1976 Act established some guidelines (not always clear ones) on permissible copying in libraries. These guidelines gave birth to the signs often posted next to photocopiers in libraries reminding the machine's user of copyright law.

FAIR USE

More important, Congress codified guidelines for fair use of copyrighted materials. Although fair use had been an important feature of copyright law since 1841, the 1976 act marked the first time that Congress set up rules to aid users in understanding when a particular use of copyrighted material was fair. The famous provision reads as follows:

The fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Legal disputes about fair use have been a common feature of copyright disputes since the passage of the 1976 act.

The first major case involving fair use also raised questions about technology. In 1984 the United States Supreme Court ruled that home use of the video-recorder for the purposes of "time shifting"—in other words, watching a program at a time different from the broadcast time—was fair use. The Court, in a 5–4 vote, found that such use had little impact on the market for broadcast television programs and served an important noncommercial purpose. The closeness of the decision indicates the continuing controversy over technological developments in copying and copyright law.

DIGITIZATION

As should be evident, John Perry Barlow's statements about the death of copyright are not new. They echo throughout copyright in the twentieth century. The latest technological shift being brought about by digitization is further changing the field of copyright law. If digitization allows perfect replication and immediate distribution of a whole range of works from printed materials to films to songs and even to three-dimensional objects, does that mean copyright is dead or just morphing once again?

The 2001 decision in the case for Internet website Napster possibly provides an answer. The Court of Appeals for the Ninth Circuit was confronted with the issue of whether a file-sharing system that permitted the copying and distribution of songs was copyright infringement or fair use. The court said that it was copyright infringement when copyrighted songs were being shared but not if uncopyrighted songs were being shared. In other words, if Napster users were sharing music in the public domain (i.e., works whose copyright has expired, such as music from the nineteenth century), then copyright law had not been violated. The court ruled that it was Napster's job to channel its technology to filter out copyright infringement from legal uses of the new computer technology. Under this heavy burden, Napster eventually shut down, with some talk that major recording companies would move into the file-sharing business.

Meanwhile, litigation against more sophisticated peer-to-peer systems continues. Many, like Barlow, feel that such useful technology cannot be limited. Others feel that stronger copyright enforcement is needed. Rumors of the death of copyright are perhaps greatly exaggerated. But at this point in time, the wounds are apparent. The hard question to answer is how the healing is going to occur.

See also: Copyright Act of 1790; Patent Acts.

BIBLIOGRAPHY

Barlow, John Perry. "The Economy of Ideas." Wired (March 1994): 84–97.

Bettig, Ronald V. Copyrighting Culture: The Political Economy of Intellectual Property. Boulder, CO: Westview Press, 1996.

Boyle, James. Shamans, Software, and Spleens: Law and the Construction of the Information Society. Cambridge, MA: Harvard University Press, 1996.

Goldstein, Paul. Copyright's Highway: The Law and Lore of Copyright from Gutenberg to the Celestial Jukebox. New York: Hill and Wang, 1994.

Krasilovsky, M. William, and Sidney Shemel. This Business of Music. New York: Billboard Books, 2000.

Lessig, Lawrence. The Future of Ideas: The Fate of the Commons in a Connected World. New York: Random House, 2001.

Lieberstein, Stanley H. Who Owns What Is in Your Head? Hartford, CT: Wildcat Publishing, 1979.

Litman, Jessica. Digital Copyright. Amherst, NY: Prometheus Books, 2001.

Samuels, Edward. The Illustrated History of Copyright. New York: St. Martin's, 2000.

"Two Cultures United." The Economist (November 9, 2002): 83–85.

Vaidhyanathan, Siva. Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity. New York: New York University Press, 2001.

Wilhelm, Anthony G. Democracy in the Digital Age: Challenges to Political Life in Cyberspace. New York: Routledge, 2000.

Copyright on the Internet

Shubha Ghosh

Copyright law balances the interests of authors, publishers, and users. The Internet challenges this balance by turning every author into a publisher and every user into an author.

For example, peer-to-peer networks (P2P) allow every creator of music to cut out the middlemen of recording studios and distributors. Copyright law has been used by these middlemen to combat P2P. Napster, a centralized P2P network, was successfully shut down while Morpheus and Grockster, decentralized P2P networks, have been found not to violate copyright law.

The future of Internet radio is affected by Congress's grant in 1996 of a digital audio transmittal right of sound recordings to performers. While radio stations historically could broadcast songs without having to pay performers, this new right will require stations to compensate performers for certain Internet broadcasts, including simulcast.

Finally, Internet search engines have also come under scrutiny. A recent court ruling found that certain types of search engines would be fair use while others would violate the public display rights of copyright owners.

It seems that while the Internet is blurring the distinctions among authors, publishers, and users, copyright law's balance is slowly being reconfigured in the digital world.

Sonny Bono Copyright Term Extension Act

The Sonny Bono Copyright Term Extension Act, passed in 1998, extended the copyright on works created by individuals from the life of the author plus fifty years to the life of the author plus seventy years. Copyright on works of corporate authorship was extended from seventy-five to ninety-five years. Copyright on works published before January 1, 1978, had their protection extended to ninety-five years. As a result, no additional works will enter the public domain due to copyright expiration until 2019, when protection will expire for works created in 1923. Proponents of the act argued that some works would never be created unless extended protection was guaranteed, and that an extension would bring U.S. law more into line with European law. Detractors, on the other hand, argued that keeping works out of the public domain long after the creator can no longer benefit from copyright protection serves merely to enrich corporate interests and puts a damper on creative re-use of material. The act was named for the singer Sonny Bono, who had lobbied for the extension of copyright protection, and was passed shortly after his death.

Copyright Act of 1790

Shubha Ghosh

It is well known that freedom of speech and freedom of the press are the cornerstones of American democracy. Less well known is the connection between these twin freedoms and copyright law. Mark Twain, the humorist and an advocate of copyright reform, said: "Only one thing is impossible for God: to find any sense in any copyright law on the planet." More than 210 years after the passage of the first copyright law in the United States, copyright remains an elusive and complex subject.

HISTORICAL BACKGROUND: ENGLISH LAW

In the past, publishing one's writing was not nearly as easy as it is today, with the advantages of the word processor and the Web page. Take, for example, England in the sixteenth and seventeenth centuries. The right to publish depended on receiving a license to publish from the monarch. Only authorized printers, or stationers, could publish and distribute written materials. Requiring a license to print limited who could write and what could be written. Since all rights stemmed from the monarch, it was ultimately the monarch who determined what writings would be published.

In 1644 the English poet John Milton, author of Paradise Lost, voiced the concerns of authors whose ability to write and distribute their work freely was hampered by the political and economic organization of publishing. In Areopagitica, a speech named after the Ancient Greek council that espoused the burning of offensive books, Milton championed the rights of the author against the arbitrary grants of the license to publish. Areopagitica was presented as a "speech for the liberty of unlicensed printing before the Parliament of England." Milton condemned the requirement that printers be licensed, comparing the strict control over what could be written and the creation of books to homicide.

Milton's important work sparked a debate over the rights of authors that resulted in the enactment of the Statute of Anne in 1710. The statute was described as "an act for the encouragement of learning, by vesting the copies of printed books in the authors or purchasers of such copies." The first sentence of the statute clearly described the problem to be addressed: "Printers, Booksellers and other Persons have of late frequently taken the Liberty of printing, reprinting and publishing or causing to be printed, reprinted, and published Books and other Writings, without the Consent of the Authors or Proprietors of such Books and Writings to their very great detriment and too often to the ruin of them and their Families." To prevent this unauthorized printing, reprinting, and publishing, authors were given the exclusive right to publish, print, or reprint their books for a period of fourteen years, which could be extended upon renewal of the copyright for another fourteen years. The statute provided a modest set of fines for publishing, printing, or reprinting a book without the author's permission.

THE COLONIES, THE CONSTITUTION, AND COPYRIGHT

Against this background we come to the American colonies and the United States Constitution. Prior to Independence, several colonies had statutes that protected writers modeled on the Statute of Anne. After the Revolutionary War, all but Delaware had a statute protecting the copyright of authors. The drafters of the Constitution, without much formal debate, recognized the need for a single, uniform, national-level law to protect and regulate copyrights. This need was met by the inclusion of article I, section 8, clause 8 in the United States Constitution, which gave Congress the power "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." One of Congress's first acts, in 1790, was to pass legislation on copyrights and patents.

The Copyright Act of 1790 (1 Stat. 124) was titled "An Act for the Encouragement of Learning, by Securing the Copies of Maps, Charts and Books to the Authors and Proprietors of Such Copies" and was modeled on the Statute of Anne. Both acts were concerned with the "encouragement of learning." Both secured the rights of authors in copies of their works. Both acts provided protection for two consecutive fourteen-year terms. The term of the 1790 act was extended in 1831 to two twenty-eight-year terms.

One key difference, however, was the scope of protection. The Statute of Anne pertained to books. The Copyright Act of 1790 pertained not only to books but also to maps and charts. This broadening of scope reflected the needs of the strong and growing map-making industry in the newly formed and yet-to-be-charted United States. The extension of scope also illustrates the flexibility of United States copyright law to respond to the needs of changing trends in technology and publishing.

PRIVATE RIGHTS AND PUBLIC GOOD

A key similarity between the Statute of Anne and the Copyright Act of 1790 is the tension between private and public. Both acts were designed to encourage learning, a broad, public-minded goal. However, both seek to reach this goal by protecting the rights of individual authors. This combination of means based on private rights (for the good of the author) with public-minded ends (for the good of the public) has long been a source of debate. For some, copyright law is primarily about the rights of authors. For others, copyright law is about promoting learning and knowledge among the public. Copyright law is about both private rights and public values, even though in many important copyright disputes these two often come into tension.

THREE IMPORTANT CASES

Three copyright cases illustrate this tension. The first one is Wheaton v. Peters, (1834), also the first Supreme Court decision on the question of copyright. At issue was a claim of copyright infringement brought by Henry Wheaton against Richard Peters. Wheaton claimed that Peters had copied without permission his report of the judicial opinions of the United States Supreme Court. At the time, court reporters wrote down the opinions of the Supreme Court as they were read, annotated the opinions, and distributed them to the public. Wheaton claimed that Peters had copied cases that were decided during Wheaton's term as court reporter. The Supreme Court ruled that there was no copyright infringement because there could not be a copyright in judicial opinions, which were laws that needed to be accessible to the public. The Court rejected Wheaton's argument that he was the author of the report and as author needed the protection of copyright. Instead the Court held for the rights of the public as opposed to the rights of the author.

The second case, from 1841, also involved documents of potentially public interest. At issue in Folsom v. Marsh was copyright in the collected letters of George Washington. Upon Washington's death the task of collecting his letters fell to a Mr. Sparks, who as editor published a multivolume collection. Mr. Upham published a two-volume work entitled The Letters of George Washington, large portions of which were lifted from Mr. Sparks's volumes. Supreme Court Justice Joseph Story in the opinion he wrote laid out a framework for what has come to be called "fair use" of copyrighted materials. Under the rule of fair use, a user is allowed under certain circumstances to copy from the copyright owner's work without his or her permission. Unfortunately for Mr. Upham, Justice Story also ruled that this case was not one to which fair use was applicable. Mr. Upham had simply copied too much and had produced a work that competed too closely with Mr. Sparks's work.

Finally, in Stowe v. Thompson, (1853), Judge Robert Grier ruled against Harriet Beecher Stowe, who was suing a publisher for selling an unauthorized German translation of her book Uncle Tom's Cabin. The judge reasoned that the copyright statute as written by Congress in the 1850s gave the author the exclusive right to copy and sell her books, but not the exclusive right to translate them into a foreign language. Consequently, Stowe's copyright in Uncle Tom's Cabin had not been infringed by an unauthorized translation. After this important decision, Congress quickly amended the Copyright Act to give authors the exclusive right to translate their works as well as create other works derived from the original.

Each of these cases illustrates the tension between the rights of the author and the rights of the public that is at the heart of copyright law. Nowhere is this tension between private rights and public needs more evident than in the international treatment of copyright.

INTERNATIONAL TREATMENT OF COPYRIGHT

The treatment of non-United States authors under United States copyright law was a hot issue in the nineteenth century. To obtain copyright protection in a specific country, an author must comply with the copyright laws of that country. More important, the country must recognize foreign authors. In the nineteenth century the United States did not recognize copyrights in works of foreign authors published overseas. This treatment greatly benefited United States publishers, who were able to sell cheap pirated copies of British bestsellers. The reading public in the United States also liked getting cheap copies of the latest works of British authors. The English novelist Charles Dickens was a vigorous critic of the United States treatment of foreign authors. During his tour of the United States in the 1840s, he spoke out against United States copyright law and urged that the law grant protections to authors like him, whose books were sold without his permission in American bookstores. Later in the century, Mark Twain took up the cause in defense of foreign authors. Twain was unhappy that the books of non-United States authors sold more cheaply than those of United States authors. In Twain's view this price difference gave foreign authors an unfair advantage.

This problem was not unique to the United States. The major European nations met and entered into the Berne Convention in 1891. Under this treaty, a country was required to treat foreign and native authors equally with respect to copyright. The United States, however, did not sign this treaty until 1989, although Congress did amend the Copyright Act in 1909 and 1976 to level the playing field for foreign and domestic authors.

The international treatment of copyright provides a good example of the tension between the rights of the author, who seeks recognition of and profit from his work, and the rights of the public, who would like cheap and plentiful supply of the work for consumption. With roots deep in copyright's treatment of books under the Statute of Anne, the conflict continues into the twenty-first century not only with books, but also with access to movies, software, and music.

See also: Copyright Act of 1976; Patent Acts.

BIBLIOGRAPHY

Blackstone, William. Commentaries on the Laws of England, vol. 2. Chicago: University of Chicago Press, 1979.

Boyle, James. Shamans, Software, & Spleens: Law and the Construction of the Information Society. Cambridge: Harvard University Press, 1996.

The Debate on the Constitution, vol 1. New York: Library of America, 1993.

Maskus, Keith E. Intellectual Property Rights in the Global Economy. Washington, DC: Institute for International Economics, 2000.

Rose, Mark. Authors and Owners: The Invention of Copyright. Cambridge, MA: Harvard University Press, 1993.

Samuels, Edward. The Illustrated History of Copyright. New York: St. Martin's, 2000.

Story, Joseph. Commentaries on the Constitution of the United States. Durham, NC: Carolina Academic Press, 1987.

Vaidhyanathan, Siva. Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity. New York: New York University Press, 2001.

INTERNET RESOURCES

The History of Copyright. <http://www.copyrighthistory.com>.

Timeline: A History of Copyright in the United States. <http://alr.cni.org/info/frn/copy/timeline.html>.

Fair Use

"Fair use" is the term for the set of principles under which a copyrighted work, or parts of it, can be used without permission from the creator or the payment of royalties. Unfortunately, there are no simple rules defining fair use; lawmakers have provided an ambiguous set of principles to allow for judicial interpretation. According to current copyright law, fair use takes into consideration the interaction of four factors: "1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; 2) the nature of the copyrighted work; 3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and 4) the effect of the use upon the potential market for or value of the copyrighted work." Commercial uses are more likely to be seen as an infringement of copyright than nonprofit uses, but an article reprinted for educational purposes could still be in violation if the reprint was thought to encroach on the market for the original. The reproduction of an entire ten-line poem would be more likely to be viewed as an infringement than ten lines from a full-length novel. Ultimately, only a court can decide, and many millions of dollars in legal fees have been spent on disputes over what constitutes fair use.