Copyright Act 1802 to 1998

Copyright Acts of 1802, Copyright Acts of 1831, Copyright Acts of 1832 to 1908, Copyright Acts of 1909, Copyright Acts of 1912, Copyright Acts of 1971, Copyright Acts of 1976, Copyright Acts of 1988, Copyright Acts of 1992, Copyright Acts of 1994 & Copyright Acts of 1998.

Copyright Act of 1802

After the American Revolution (1775-1783), print engravings were made to commemorate famous battles, to depict historical events, and to honor generals and noted statesmen. Prints also became important as a vehicle for the spread of political and social ideas. By the 1800s the first truly American printmaking movement had come into being.

On April 29, 1802, the 1790 Act was amended to add prints to the list of protected works and to require the affixation of a copyright notice.

Copyright Act of 1831

In 1803, Noah Webster an early and persistent proponent of perpetual copyright terms observed that "Men are strangely influenced by habits of thinking, and it is a common opinion that literary composition should be held only for a limited time, while a horse or an acre of land is permanent inheritable estate."

While in England in 1825, Noah Webster learned that Parliament had just passed a law extending the term of protection of authors to 28 years from 14 years. On his return to the US, he wrote to then-Congressman Daniel Webster on September 30, 1826:

“I sincerely desire that while you are a member of the House of Representatives in Congress your talents may be exerted in placing this species of property on the same footing as all property, as to exclusive right and permanence of possession If anything can justly give man an exclusive right to the occupancy and enjoyment of a thing it must be the fact that he made it. The right of a farmer and mechanic to the exclusive enjoyment and right of disposal of what they make or produce is never questioned I sincerely wish our legislature would come at once to the line of right and justice on this subject, and pass a new act, the preamble to which shall admit the principle that an author has, by common law, or natural justice, the sole and permanent right to make profit by his own labor, and that his heirs and assigns shall enjoy the right unclogged with conditions.

On October 14, 1826, Daniel Webster responded to Noah Webster:

“Your opinion, in the abstract, is certainly right and incontrovertible. Authorship is, in its nature, ground of property I confess frankly that I see, or I think I see, objections to make it perpetual. At the same time I am willing to extend it further than at present, and am fully persuaded that it ought to be relived from all charges, such as depositing copies, etc.”

In 1829, Noah Webster persuaded William Ellsworth, a member of the House Judiciary Committee, to try to enact a new copyright law and, on January 21, 1830, Ellsworth introduced H.R. 145 to increase the term of copyrights from 14 years to 28 years and to add musical compositions to the protected works, among other things.

The Judiciary Committee’s December 17, 1829 report noted that England had extended its term, and other European countries had longer terms at the time (France, life plus 50, Russia life plus 20, and Germany, Sweden and Norway, perpetual) and stated:

That the law of copyright ought to extend to musical compositions, as does the English law but chiefly to enlarge the period for the enjoyment of copy-right, and thereby to place authors in the country more nearly upon an equality with authors in other countries. It is believed that this comparison shows that the United States are far behind the States of Europe in securing the fruits of intellectual labor, and in encouraging men of letters. Upon the first principals of proprietorship in property, an author has an exclusive and perpetual right, in preference to any other, to the fruits of his labor. We ought to present every reasonable inducement to influence men to consecrate their talents to the advancement of science.

During the debate of H.R. 145, Congressman Hoffman expressed concern that “it went to establish a monopoly of which authors alone would reap the advantage, to the public detriment. There was an implied contract between them and the public; They in virtue of their copyright, sold their books to the latter at an exorbitant rate; and the latter, therefore, had the right to avail themselves of the work when the copyright expired.” He moved, but failed to persuade his colleagues, to strike the extension of the term to 28 years. Congressman Ellsworth responded to Hoffman’s criticism by stating that the bill would “enhance the literary character of the country, by looking forth to men of learning and genius additional inducements to devote their time and talents to literature and the fine arts.” Congressman Verplanck added that “the whole argument was founded on a mistake, apparent to the eye of common sense, and repugnant to the law of the land; There was no contract; the work of any author was the result of his labor; That statute did not give the right, it only secured it.”

The Copyright Act of 1831 was then enacted into law adding musical compositions to the list of protected works and increasing the initial copyright term from 14 to 28 years.

copyright law Revisions from 1832 to 1908

On August 18, 1856, dramatic compositions were added to the roster of protected works under American copyright legislation, and on March 3, 1865, photographs were included among statutorily protected works.

On July 8, 1870, works of art achieved the status of protected works, and copyright rights were reserved to authors for certain derivative works, including translations and dramatizations.

On March 3, 1891, the Chace International Copyright Act became law. For the first time, foreign authors enjoyed copyright protection in the US, thus beginning to pave the way for US authors to attain copyright protection abroad. However, the Chace Act required foreign authors to observe the same formalities as US authors to obtain protection. It also added the first manufacturing clause that limited copyright protection in this country to books printed in the US specifically to protect the interests of US printers, an act of territorialism reminiscent of the Stationer days in England.

Copyright Act of 1909

In a December 1905 address to Congress, President Theodore Roosevelt urged Congress to update and modernize American copyright law:

“Our copyright laws urgently need revision. They are imperfect in definition, confused and inconsistent in expression; they omit provision for many articles which, under modern reproductive processes, are entitled to protection; they impose hardships upon the copyright proprietor which are not essential to the fair protection of the public. This deserves prompt consideration.”

Congressional response to Roosevelt’s call to action demonstrates a peculiar dichotomy in American copyright law. A Senate Report noted that “The action of Congress in a copyright law is frequently referred to as ‘a grant’ of copyright. What the Constitution authorizes Congress to do is, however, not to ‘grant’ but to ‘secure’ the ‘exclusive rights’ which constitute copyright.”

A later House Report viewed the issue differently:

“It will be seen, therefore, that the spirit of any act of which Congress authorized to pass must be one which will promote the progress of science and useful arts, and unless it is designed to accomplish this result it would be beyond the power of Congress. The Constitution does not establish copyrights, but provides that Congress shall have the power to grant such rights if it thinks best. In enacting a copyright law Congress must consider two questions: First, how much will the legislation stimulate the producer and so benefit the public; and, second, how much will the monopoly granted be detrimental to the public? The granting of such exclusive rights, under the proper terms and conditions, confers a benefit upon the public that outweighs the evils of the temporary monopoly.”

Congress reviewed the duration of copyright, then 28 years plus a renewal time of 14 years—a total of 42 years, and in considering what the term should be, a consensus began to emerge that it ought at least: a) “to assure to the author provision for his old age;” b) “to assure the community the benefit of his own revision of his works as long as he lives (only a complete control of them will do this);” c) “to enable him to provide for his children until the reach the age where they are likely to be self-supporting.” However, “the provision ought not to tie up automatically all copyrights whether or not they require a term so long, experience shows that a large percentage of them do not.”

Congress also reviewed the then-extant European life of the author plus either 30 or 50 year terms. One consideration was that preserving the renewal period was to the advantage of the author because it frequently happens that an author sells his rights to a publisher for small sum and that “if the work proves to be a great success and lives beyond” it’s initial term, that it wanted “the author to take the renewal term.” Ultimately, Congress concluded that by leaving the initial term at 28 years and extending the renewal term from 14 years to 28 years, it “ought to be long enough that there would be no probability of its being taken away from him in his old age, when, perhaps, he needs it most.”

Congress also noted “an entirely new art as the result of ingenious and elaborate invention” and that these “machines are capable of producing sound in the air and duplicate the skillful performer many hundreds of times.” But that “these inventions are as dead bones without the vivifying spirit of the musician, it is he who creates the though they reproduce and sell.” The new technology allowed the producers of these machines to enjoy copyright protection without compensation to the composers/musicians under the copyright laws. Congress rectified this and dispelled the contrary point of view:

“It has been said that to give to the composers the exclusive right to control their musical compositions might foster an odious monopoly by permitting some rich corporation to purchase all the compositions of the most famous artists and thus prevent their competitors in business from being able to offer to the public the same music which they control. But the committee has thought that this was a right of private contract and the fear of monopoly and combination was felt to be a groundless First, the anti-trust legislation of the United States it is hardly possible for any combination to exist and second, that the protection of composers in the use and sale of their compositions will necessarily so encourage and stimulate composers that supply the music will be practically unlimited, and no monopoly will be possible.”

The Copyright Act of 1909 took effect on July 1, 1909, with the immediate result that a published work to be protected and remain the exclusive property of its author, artist or owner, was subject to compliance with a number of formalities, some of which were:

a) a proper copyright notice in a proper location;

b) registration, followed by renewal within 28 years of the date of publication to extend the term of protection to 56 years;

c) publication in the US unless certain administrative requirements were followed (however, foreign languages of foreign origin were exempted);

d) dating the copy from the date of first publication; and

e) the introduction of the compulsory license for musical works.

Copyright Act of 1912

The 1909 Act was amended in 1912 to add motion pictures to the list of protected works. Previously, what protection motion pictures had was as photographs. Again, technology had advanced so far that the copyright law needed revision to keep pace with progress:

“The occasion for this proposed amendment is the fact that the production of motion-picture photoplays and motion-pictures other than photoplays has become a business of vast proportions. The money invested therein is so great and the property rights so valuable that the committee is of the opinion that the copyright law ought to be so amended as to give them distinct and definite recognition.”

Sound Recording Amendment of 1971

Congress continued to craft copyright law on an ad hoc, reaction to circumstances basis rather than in a policy-driven fashion. The Sound recording Amendment of 1971, effective on February 15, 1972, extended copyright protection to sound recordings fixed or first published on or after that date. It was Congress’ solution to the "record piracy" problems that had been created by the development of the audio tape recorder.

Copyright Act of 1976

Not long after the 1909 Act was implemented, a number of bills were introduced to change the term of protection to life of the author plus 50 years and to revise the law so the US could join the Berne Convention. There was broad support for such revisions. The Author’s League of America supported compliance with international standards because authors who produce at an early age might not be protected in their later years and because their return was small. The Committee on Publications for the Mother Church supported it because it would extend protection for the works of Mary Baker Eddy. The American Library Association supported life plus 30 years as it would be enough to take care of the author’s family. Music and film industry interest also supported a longer term and international conformity. Opposition came from radio broadcasters, record manufactures, producers of “talking machines,” two patent attorneys and a publisher because life plus 50 years would make it hard to determine when a work goes into the public domain and who owns it until it does. Opponents also argued that a longer term would not just benefit the author’s immediate heirs, but great grandchildren as well, and that by lengthening the term, it would prevent “cheap editions” of work from coming out for an additional 30 years.

In 1955, Congress instructed the Copyright Office to study possible revisions to the 1909 Act and it later, partial revisions. In that study, the Copyright Office concluded that:

“The basic consideration is to determine what duration of limited times will best promote the progress of science and useful arts it is to the author’s advantage, and to the advantage of the public, to provide an adequate term of protection to make it commercially feasible for publishers and other distributors to aid him in exploiting his work. The term of protection should be sufficient to provide an adequate economic return to all of these interests, if it is true, as seems to be assumed in the Constitution, that it is to benefit of the public to promote the creation and dissemination of intellectual works. After the author, his family, and the distributors, have had a fair economic return, there appears no logical reason to restrict the public’s access to the work by continuing the benefit to remote heirs, or to the distributors or successors.”

On July 7, 1961, the Register of Copyrights issued a report concerning revision of the 1909 Act, stating that the 1909 Act needed overhauling because the changes in technology during the last half century that have affected the operation of the copyright law. Commercial radio and television were unknown in 1909. Motion pictures and sound recordings were in a rudimentary stage. New technique for reproducing printed matter and recorded sounds have since come into use. These and other technical advances have brought in new industries and new methods for reproduction and dissemination of . . . the subject matter of copyright. And the business relations between creators and used of copyright materials have evolved into new patterns.”

Comments concerning revisions were also submitted as part of the Register’s report and study, including a statement from Irwin Karp, counsel for the Author’s League of America, debunking the presumed benefit of the public domain:

“In fact, the advantage of the ‘public domain’ as a device for making works more available to the public is highly overrated; especially if availability is equated with ‘low cost’ to the public. In contrast with the fact that the prices charged to the public do not necessarily come down, or the supply of the work increase, when copyright terminates—the paperback book is evidence that copyright protection is not incompatible with mass circulation at low cost to the public.”

In analyzing the state of copyright protection at the time, the Register acknowledged that the term of life of the author plus 50 years was being advocated but the Register recommended instead the existing system of renewals remain in place but to extend the protection by having an initial term of 28 years and a renewal term of 48 years to achieve the equivalent of life plus 50 years.[1][46] The Registrar also noted that the existing term (56 years) was too short: “A substantial number of works continue to have commercial value beyond the present term of 56 years. In some cases the author is still living or there are still dependents of a deceased author when the term expires. We are sympathetic to the view that the author during his old age, or his dependents if he dies prematurely, should continue to have benefits afforded by copyright. A maximum 56 years is not enough to assure this in all cases.”

The Register later changed his position concerning what the terms of copyright protection should be, and in a supplementary report proposed the term of life plus 50 years for works published after January 1, 1978 and 75 years from the date of publication (28 initial term and 47 year renewal term) for anything published before. The Register also noted:

“Copyrighted works move across national borders faster and more easily than virtually any other economic commodity and with the techniques now in common use this movement has in many cases become instantaneous and effortless. The need to confirm the duration of U.S. copyright to that prevalent throughout the rest of the world is increasingly pressing in order to provide certainty and simplicity in international business dealings. Even more important, a change in the basis of our copyright term would place the United States in the forefront of the international copyright community.

“It is startling to realize, in an era when copyrighted materials are being disseminated instantaneously throughout the globe, that the United States has copyright relations with less than half of the world’s nations. The injustice of this situation to authors here and abroad is obvious, but equally serious to our national interest is the lack of cultural bridge between countries that copyright furnishes.”

As part of the Congressional hearings leading up to the Copyright Act of 1976, former Register of Copyrights Abraham Kaminstein shared his observations to Congress:

“As the founders of this country were wise enough to see, the most important elements of any civilization include its independent creators – its authors, composers and artists – who create as a matter of personal initiative and spontaneous expression rather than as a result of patronage or subsidy. A strong, practical copyright is the only assurance we have that this creative activity will continue.”

This was followed by the acknowledgement that “there is an urgent need for copyright legislation that takes full account of the continuing technological revolution in communication.”

During the course of the studies of potential revisions of the copyright laws, Congress passed nine special acts extending the renewal terms of existing copyrights that were about to expire, pending Congressional action on the general copyright law revision.

Both the House and Senate Judiciary Committees reported on the need for extending the terms of copyright for a variety of reasons:

1) due to increased life expectancy, the then-term of 56 years was not long enough for an author and his dependents to receive the economic benefits from his work;

2) growth in communications media had greatly lengthened the commercial value of many works;

3) too short a term harms the author without giving any benefit to the public, as the public pay the same for a work in the public domain and publishers might be reluctant to invest in the dissemination of a work without the exclusive rights;

4) a large number of countries had adopted the term of life plus 50 years and with copyrighted works able to move across borders faster, it could have economic ramifications; and

5) not adopting the international term of protection might prevent the US from being able to join Berne.

Ultimately, Congress adopted the life plus 50 years term for new works published after January 1, 1978. For the existing works up to that date, the existing system was left in place but the renewal term was extended to 47 years, for a total term of 75 years.

The Berne Implementation ACT OF 1988

Article 5(2) of the Berne Convention states that “the enjoyment and the exercise of [copyright] shall not be subject to any formality.” Congress recognized that “the one real difference that makes U.S. law incompatible with the Berne Convention consists in the notice and registration requirements” and further noted that “there is a strong consensus that Berne requires the elimination of mandatory notice of copyright.”

The benefits of the US joining the Berne Convention were to “establish multilateral relations with twenty-four countries which whom relations” did not exist; “since the United States runs a positive balance of trade for copyrighted items, Berne membership should contribute to a continuation of that net advantage”; “by placing America copyright law on a footing similar to most other countries, especially in the industrial world, our domestic law as well as the international legal system are improved”; “The net benefits will flow to American authors and to the American public.”²⁵

The Berne Implementation Act of 1988 amended the 1976 Act to clear away formalities such as the notice requirement and the filing and registration prerequisites to filing an infringement suit. “The purpose of the legislation is to allow the United States to join the Berne Convention.”

The Act was signed on October 31, 1988, and the US joined the Berne Convention, effective March 1, 1989.

Copyright Renewal Act of 1992

This Act abolished the requirement that works published between 1964 and 1977 be renewed in the Copyright Office or fall into the public domain. Under the new Act, works were automatically renewed and thus could not fall into the public domain.

Congress acted to protect authors from losing their works “irretrievably into the public domain” based on an innocent failure to comply with the formalities of filing of renewal applications. The Copyright Office, publishers, authors, academics and others “criticized the registration renewal provision for being burdensome and unfair to thousands of copyright holders and their heirs.” Congress believed that the public domain “should not be enlarged because of an author’s error in recordkeeping, or any other innocent failure to comply with overly technical formalities in the copyright law,” particularly when such works are “the sole source of income for authors and their families.” Further, Congress understood that “the domestic laws of most developed countries contain very few formalities conditioning copyright protection” and that such formalities are “antithetical to the major international treaty on copyright relations, the Berne Convention.”

Congress considered the arguments of those opposed to the 1992 Act which were that mandatory renewals should remain in effect because ‘the works that would benefit from modifying it are few in number and of little value” and “serves an important purpose: increasing the volume of works that call into the public domain, free of copyright protection.” Congress rejected these arguments as “contrary to the real public purpose for copyright protection: our copyright law grants authors exclusive limited rights to exploit their creations for a sufficient time so they will be encouraged to continue creating works that entertain, educate and fire our imaginations.”

Uruguay Round Agreements Act (URAA) of 1994

The URAA included 18 separate trade-related agreements covering such topics as agriculture, textiles, government procurement, investments, subsidies, trade in services and tariffs. President Clinton’s letter transmitting the URAA and related documents to Congress noted that “The Uruguay Round Agreements are the broadest, most comprehensive trade agreements in history. They are vital to our national interest and to economic growth, job creation, and an improved standard of living for all Americans.”

Statements in the Congressional record that sentiment as well. “The Uruguay Round of multilateral trade negotiations is by far the most ambitious and comprehensive round of multilateral trade negotiations in the history of GATT tackling new areas, such as services, intellectual property rights, and investment, reflecting the growing complexity of the world trading system. These agreements will lead to increased levels of world and U.S. output, trade, real income, savings, investment, and consumption.”

Congress clearly stated that it was acting to implement the United States’ treaty obligations under the Berne Convention “the Agreement requires WTO countries to comply with Article 18 of the Berne Convention.

While the United States declared its compliance with the Berne Convention in 1989, it never addressed or enacted legislation to implement Article 18 of the Convention.”

Section 514 of the URAA restored copyright protection for the works of foreign authors whose works had fallen into the public domain due to non-compliance of the formalities of US copyright law.

Copyright Term Extension Act (CTEA) of 1998

As noted above, in 1993, the European Community issued a directive calling for the harmonization of the term of protection of copyrights at life of the author plus 70 years.

The CTEA implemented the EC directive in the US and was signed into law by President Clinton on October 28, 1998. It extended the terms of copyright protection by 20 years, so the pre-1978 term of 75 years from the date of publication became 95 years and the term after 1978 of life of the author plus 50 years became 70 years.

The purpose of the CTEA was “to ensure adequate copyright protection for American works in foreign nations and the continued economic benefits of a healthy surplus balance of trade in the exploitation of copyrighted works. Such an extension will provide significant trade benefits by substantially harmonizing U.S. copyright law to that of the European Union while ensuring fair compensation for American creators by stimulating the creation of new works and providing enhanced economic incentives to preserve existing works, such an extension will enhance the long-term volume, vitality, and accessibility of the public domain.”

The Register of Copyright noted in a hearing before the Senate hearing concerning the CTEA:

“Technological developments clearly have extended the commercial life of copyright works. Examples include video cassettes cable television Internet. The question is who should benefit from these increased commercial uses?”

The Senate Judiciary Committee responded that “by extending the copyright term for an additional 20 years the bill allows for American authors to benefit from these increased opportunities for commercial exploitation of their works.”

Congress also found that absent the passage of the CTEA “the United States stands to lose a significant part of its international trading advantage.”

The Senate Judiciary Committee explained:

“from the years 1977 through 1996, the U.S. copyright industries’ share of the gross national product grew more than twice as fast as the remainder of the economy. During those same 20 years, job growth in core copyright industries was nearly three times the employment growth of the economy as a whole. These statistics underscore why it is so important that we finally pass this legislation today.”

The CTEA also furthered the foreign policy goal of the harmonizing the United States copyright laws with those of important trading partners and in support of this goal, the Register of Copyrights testified that “the Copyright Office believes harmonization of the world’s copyright laws is imperative if there is to be an orderly exploitation of copyrighted works.”

“Those arguing against copyright term extension are primarily businesses that depend on distributing films and videos that have lost copyright protection and entered the public domain. It's important to realize that copyright protects not just authors and songwriters, but those who hold copyrights on motion pictures, television programs, records, CDs, computer software, phonographs, periodicals, sculptures, designs, and other original work. According to Economists Incorporated of Washington, D.C., America's "copyright industries" in 1990 achieved foreign sales of at least $ 34 billion, and employed 2.8 million individuals. The world today seems to be enchanted by American culture. As a result, America exports many more copyrighted goods and services than it imports; any diminution of copyright protection would therefore increase our trade deficit, while unfairly harming those who own copyrights.”

The Senate Judiciary Committee was unpersuaded:

“The Committee is aware of the criticism of the proposed extension by those who suggest that it marks a step down the road of perpetual copyright protection. The Committee is unswayed by this argument First, the greatest obstacle to a perpetual term is the U.S. Constitution, which clearly precludes Congress from granting unlimited protection Second, the emerging international standard are not toward perpetual protection, but to a fixed term of protection based on the death of the author. Third, the principal that it protects the author and at least one generation of heirs”

Another opinion by a well-known copyright expert and Harvard professor, Arthur Miller, adds to this:

“works of art become less available to the public when they enter the public domain-at least in a form that does credit to the original. This is because few businesses will invest the money necessary to reproduce and distribute products that have lost their copyright protection and can therefore be reproduced by anyone. The only products that do tend to be made available after a copyright expires are ''down and dirty'' reproductions of such poor quality that they degrade the original copyrighted work. And there is very little evidence that the consumer really benefits economically from works falling into the public domain”

“The need for strong copyright protection becomes more important every year as a weapon with which to fight the piracy of intellectual property. Overseas piracy of American copyrighted material has grown dramatically in recent years due to the availability of equipment that can make cheap copies of movies, videotapes, sound recordings, and computer programs. As more and more digital technology arrives on the scene, the problem will only become worse.”