A Master Revision – We Describe the 1976 Copyright Act
The revision of the Copyright Act in 1976 changed the way exclusive copyright existed and terminated. The 1976 act is now the dominant basis of copyright law in the United States. Basic rights of copyright holders are codified, in addition as the now oft employed “fair use” doctrine. Almost all new copyrights are unprotected to a term determined by the date of the holder’s death, replacing the more convoluted renewal scheme of fixed initial and renewal terms in the past code provision.
In section 102 of the Act, copyright protection is obtainable for “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 meaningful change from the prior law is that works no longer have to be published to enjoy copyright protection, and one need not affix the copyright mark (the “course of action C”) to one’s work to cause federal protection. past controlling law condemned original works to the public domain if the notice of copyright was not properly included. State copyright protections were made all but superfluous by the federal revisions passed by Congress in 1976.
The 1976 revision granted five (5) exclusive rights to copyright holders: the right to copy (copy), the right to create derivative works from the original, the right to commercialize the work, the right to perform the work publicly (if applicable), and the right to characterize the work publicly (if applicable). Digital audio recordings were additional in 1995.
The doctrine of fair use was finally codified in the 1976 revision of the Copyright Act. The fair use doctrine was codified and taken out of the vicinity of shared law protections. Section 106 denotes that the doctrine clearly applies to any use of copyrighted work for news reporting, criticism, research, scholarship or teaching. Despite this definitive list, the fair use defense is not exclusively limited to just these activities. The Act provides a four prong factor test to determine whether fair use has occurred:
1) the purpose and character of the use (for example, whether it is commercial or educational);
2) the character of the copyrighted work (how creative is the work);
3) the amount and substantiality of the portion of the original work used; and,
4) the effect of the use upon the original work in the market (or possible market). The fair use defense was also extended to unpublished works.
The past term of protection for copyrighted works was greatly expanded by the 1976 revision. Before, copyright protection existed for a term of 28 years, with an optional extension of an additional 28 years. consequently, your total protection for copyrighted works was capped at 56 years. As of the 1976 revisions, protections were granted to the originator of the work for his life plus fifty years. A flat 75 year term was enacted for anonymous or pseudonymous works, and works made for hire. More copyright protections were additional by the Sonny Bono Copyright Term Extension Act in 1998. Protection now extends to 70 years after the originator’s death, and 95 years for works made for hire.
Copyright transfers were greatly clarified by the 1976 revision of the Copyright Act. The courts had muddied the presumption that the move of a copy of a work carried with it the presumption that the creative rights were transferred in addition. That is now definitively not the case. Section 204 of the 1976 revision fully details the procedure for transferring ownership of a copyrighted work. A copyright holder must sign a written statement of conveyance expressly transferring his or her ownership of the copyright to the recipient. Otherwise, there has been no move of the original work to the recipient.
Copyright protection is not thoroughly contingent upon registered one’s work with the Copyright Office; however, an action for infringement cannot be pursued until one registers with the Copyright Office, a course of action that can take up to six months. To register one’s work, the Act requires one copy and the required fees be deposited with the Office. If the work is published, two copies of it are required.
The 1976 revision of the Copyright Act greatly simplified the law and expanded protections for original works. It is always good to find an attorney familiar with copyright law and the Act’s revisions if you are interested in protecting your original work.