Copyright Law and Practice
by William F. Patry

Copyright © 1994, 2000 by The Bureau of National Affairs, Inc.
Reprinted with permission.

Table of Contents:

Chapter 1

- Introduction

- England and the Statute of Anne

- The Colonies and Copyright

- The Constitutional Clause

- The First Copyright Act

- Statutory Revision

- Amendments to the 1909 Act

- The 1976 Act

- Amendments to the 1976 Act


- Amendments to the 1976 Act

- The Digital Millennium Copyright Act

Chapter 1 – Introduction

The 1976 Act

The Study Phase of the Revision Effort

Numerous efforts were made to revise the 1909 Act in the period 1924-1940, with the aim of permitting adherence to the Berne Convention. These efforts were abandoned during World War II. After the war, the United States participated in the development of the UCC, to which it adhered in 1955. It was not by accident that the implementing legislation necessary to conform U.S. law to the Convention’s requirements was quite minor, since the Convention was drafted with existing U.S. law very much in mind.

Following our adherence to the UCC, the movement for a general revision picked up again, for despite the argument by some that the American system of copyright had, on the whole, proved suitable for American needs, it became apparent that an intensive reexamination of the 1909 Act was long overdue.

A comprehensive reexamination project was authorized by Congress in August 1955, after proposals by members of Congress to establish a Presidential commission to study the question were opposed by the American Bar Association. Under this authorization, the Copyright Office prepared 35 legal and factual studies of the major substantive problems inherent in an omnibus revision.260 Distribution of these studies to members of the bar and the copyright community gave rise to a healthy exchange of ideas, comments, and suggestions for the development of an improved law, culminating in a July 1961 report to {Page 75} Congress by Register of Copyrights Abraham Kaminstein.261 The report was circulated to a panel of 29 copyright experts, appointed by the Librarian of Congress as an alternative to the previously proposed Presidential commission.

The Register’s 1961 Report and Preparation of a Preliminary Draft Bill

The Register’s 1961 report contained the Copyright Office’s tentative recommendations for revision, with a view to the introduction, after public comment, of a proposed new law. The report was, the Register later noted, {Page 76} “controversial,” with some of its major recommendations drawing “fervent opposition.”262 The focal point of the opposition was the report’s recommendation that the dual federal/state system of copyright be retained, but with federal protection beginning from the first “public dissemination” of the work, a concept that was to include public performances. The renewal structure was to remain intact, with the second term expanded to 48 years. The strong preference of those commenting on these recommendations was for a unified system of exclusive federal protection, with copyright beginning from creation and enduring for a term of life of the author plus 50 years.263

Another significant issue, described as the “most explosive and difficult,” was a proposal for protection of authors against “unremunerative transfers.”264 Under the report’s recommendation, and contrary to then existing law, the renewal term would not revert to the author or specified heirs, but (if assigned) would be a mere extension of the original term. Any person with an interest in the copyright could file a renewal application. At the same time, however, the report proposed that an assignment would not be effective for more than 20 years unless payment of continuing royalties “based on the uses made of the work or the revenue derived from it” was made.

Other major recommendations of the report included the following:

1. Instead of referring to “all the writings” of an author, as in the 1909 Act, categories of protected subject matter should be stated in broad terms to cover all classes of works protected in the 1909 Act, as well as adding new categories of authorship desired by Congress. New forms of expression within these categories should be permitted without the need for further amendment.

2. The general requirement that any work, in order to be copyrightable, must be fixed in some tangible form, and must “represent the product of original creative authorship” should be stated in the Act.

3. The redundant language in Section 1 of the 1909 Act should be replaced with simpler and clearer language giving copyright owners the exclusive rights of: “(1) making and publishing copies; (2) making new versions; (3) giving public performances; and (4) making records of the work.”

4. A provision “affirming and indicating the scope of the principle that fair use does not infringe the copyright owner’s rights” should be included.

5. Public libraries and the like should be permitted to make a single photocopy of a work under specified conditions.

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6. Nondramatic literary and musical works should have a right of public performance limited to those for profit; dramatic works should have the right of public performance without a for-profit limitation.

7. The jukebox exemption should be repealed or at least jukebox owners should have to pay reasonable licensing fees.

8. The notice requirement would be retained, but with inadvertent omission of notice not resulting in forfeiture of copyright, along with other curative provisions and protection for innocent infringers misled by the omission of notice.

9. The compulsory license to make phonorecords of a musical composition should be eliminated.265

10. Copyright in U.S. government works should be permitted in exceptional circumstances.

11. A work-made-for-hire employer would be considered the owner of all rights, but not the author. Work-made-for-hire would be limited to works created by employees within the scope of their employment.

12. Copyright should be available without regard to citizenship, domicile, or place of first publication, but the President should be given power to withhold or limit protection for works from foreign countries.

As with the 1909 Act, a series of conferences with a panel of consultants representing different interests was sponsored by the Copyright Office, with the Register’s report serving as the starting point for discussion. The first series was held on September 14 and November 10, 1961, and January 24 and March 15, 1962.266 Register of Copyrights Kaminstein later commented that during these meetings “there was little evidence of apathy or indifference,” but that “along with the free-swinging attacks and complaints, there were also a number of constructive, well-reasoned arguments.”267

The year 1962 proved a difficult one. As a result of the controversy surrounding the 1961 report’s recommendations, the revision program went through a serious crisis. In November 1962, the Register announced that the Copyright Office was prepared to change its position on some points and to draft alternative language for others. Principal among these changes was the Office’s acceptance of a unified, federal system of protection, with copyright measured from the date of creation.

Based on its announcement, the Copyright Office prepared a preliminary draft bill, which was circulated to the panel of private sector consultants. Meetings were {Page 78} held on the draft on January 16, February 20, April 11, and June 11, 1963,268 August 15-16, October 8, and November 13, 1963, and January 15, 1964.269

The draft bill, like the Register’s 1961 report, received “considerable adverse criticism and opposition,” although, at the same time it managed to “la[y] the foundation for a consensus on some of the issues in controversy.”270 Following the last panel of consultants meeting, the Copyright Office spent approximately six months redrafting the bill to take into account the panel’s suggestions.

The Legislative Phase of the Revision Effort


The legislative phase of the revision process began on July 20, 1964, when Representative Emanuel Celler, chairman of the House Committee on the Judiciary, and Senator Joseph McClellan, chairman of the Senate Committee on the Judiciary, introduced the first, identical revision bills, H.R. 11947 and S. 3008.271 Hearings were not held on the bills, though; instead, a final conference of the panel of consultants was convened to review the bills on August 6-7, 1964.272 Based on the many comments received during and subsequent to the conference, a completely revised bill was prepared.

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Arevised bill was introduced on February 4, 1965, as H.R. 4347 and S. 1006.273 In preparation for the first legislative hearings, on May 13, 1965, the Register of Copyrights issued a supplementary report that explained the revision efforts to date and the changes reflected in the 1965 bill.274 The principal changes may be summarized as follows:

1. Deletion of “original creative authorship” as a statutory criterion of protection and substitution of phrase “original works of authorship.”

2. Inclusion of seven nonexhaustive classes of subject matter, including sound recordings (but without a performance right).

3. A unified system of federal protection with a general term of life of the author plus 50 years.

4. National eligibility for all unpublished works, with eligibility for published works established where: (1) the author is a national, domiciliary of the United States or of a country with which the United States has copyright relations; or, (2) the work is first published in the United States or in a UCC country; or, (3) the country of origin of the work is covered by a Presidential proclamation without the need for reciprocity; or (4) the work is first published by the United Nations, a United Nations agency, or the Organization of American States.

5. Deletion of copyright in works of the U.S. government in exceptional circumstances.

6. Grant of a fifth exclusive right, to publicly exhibit a work (but only in the case of literary, musical, dramatic, choreographic works, pantomimes, and pictorial, graphic, and sculptural works).

7. Abolition of the for-profit limitation on the performance right and substitution of a series of exemptions for educational and other nonprofit uses.

8. Deletion of a provision on library photocopying due to opposition from all sides, but with a more detailed fair use provision.

9. Imposition of liability for all cable television retransmissions, except where the signal was merely amplified and was retransmitted without change.

10. Retention of the mechanical compulsory license for musical works embodied in phonorecords.

11. A revised work-made-for-hire clause, providing four specific subject matter categories of potential commissioned works made for-hire, combined with a written agreement requirement.

12. Revision of the proposal on protection of authors against remunerative transfers in light of the single term of protection, with a provision on {Page 80} “termination of transfers,” under which an author or specified heirs could terminate a transfer of rights at any time during a period of 5 years beginning at the end of 35 years from the date of transfer.

13. Addition of the requirement of recordation of transfers as a precondition to the transferee bringing an infringement suit.

Congressional hearings began before Subcommittee No. 3 of the House Committee on the Judiciary on May 26, 1965.275 The subcommittee held 22 days of hearings – between May 26 and September 2, 1965 – hearing from 163 witnesses and generating a record of almost 2,000 pages.276

Sharp disagreements were voiced on “old issues” such as the jukebox exemption, the proper royalty rate for the mechanical compulsory license for music, and abolition of the manufacturing clause277;disagreements also arose over “new issues,” such as codification of fair use, library photocopying, liability of educational broadcasters, and the status of cable television systems, the latter an issue that had not even been mentioned in the 1961 Register’s report due to the infancy of the industry, but which was quickly to become the spoiler of the revision effort during 1968-1972.278

Consensus was reached, however, on some issues, and one “package deal” in particular bears mentioning, although individual aspects of the package have been discussed previously. Due to their impact on each other, provisions on term of protection, termination of transfers, and work made for-hire had to be resolved together. After much heated debate, agreement was reached on a single term of protection of life of the author plus 50 years, a termination of transfer right but with a work-made-for-hire exception, and work-made-for-hire provisions that permitted only enumerated categories of subject matter to be commissioned works made for-hire, conditioned on the parties’ entering into a written agreement to that effect. This agreement was presented to the {Page 81} House at the hearings,279 and adhered to by the interested parties for the remaining 11 years of the revision process.280

The Senate Subcommittee on Patents, Trademarks, and Copyrights held three days of hearings on August 18-20, 1965.281


Following its 1965 hearings, between February and September 1966, the House subcommittee held 51 days of executive sessions on the revision bill. As a result of this extensive review, a revised bill was produced and reported to the Judiciary Committee on September 21, 1966. The Judiciary Committee favorably reported the bill without amendment on October 12, 1966.282 The subcommittee’s hard work was reflected in the number of changes made to the bill as reported, principal of which were the following:

1. A definition of “fixed,” to take into account simultaneous taping of live broadcasts and computer programs.

2. A more detailed fair use provision.

3. Expansion of the categories of potential commissioned works made for-hire from four to eight.

4. A more liberal exemption for nonprofit educational broadcasting.

5. An exemption for archival facsimile reproduction of unpublished manuscripts.283

6. A completely rewritten cable television section, dividing cable systems into three categories: (1) those exempt from liability; (2) those subject to full liability; (3) those subject to reasonable licensing.

7. Creation of a compulsory license for jukeboxes.

8. A tightening up of the innocent-infringer provision.

9. Protection of copyright owners from loss of copyright if a licensee required by contract to affix notice failed to do so.

10. Revision of statutory damage amounts for willful infringers and instructors in nonprofit educational institutions who had reason to think their use was a fair use.

11. A slightly liberalized manufacturing clause for American authors domiciled overseas.

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12. Addition of a personal use exemption for individuals and for nonprofit, scholarly, educational, and religious institutions from the Section 602 importation right.

On the Senate side, the Subcommittee on Patents, Trademarks, and Copyrights held four days of hearings on cable television on August 2-4, and 25, 1966.284


On January 17 and 23, 1967, general revision bills H.R. 2512 and S. 597,285 respectively, were introduced. These identical bills were also identical to H.R. 4347 as reported out by the House Judiciary Committee the previous year. The House Subcommittee spent February 20, 24, and 27, 1967, considering H.R. 2512, and on the last of these dates, reported the bill to the Judiciary Committee. In the Judiciary Committee, heated debates over the cable television and jukebox issues occurred, but the bill was, nevertheless, reported to the floor without further amendment on March 8, 1967, albeit with minority views.286 On that same day, the bill was taken up by the House Rules Committee amidst “rather acrimonious arguments.”287 The full House began debate on April 6. Former Register of Copyrights Barbara Ringer described the debate as “difficult and protracted, to say the least,” adding:

When the House finally recessed after 7 P.M., it was apparent that a rescue operation was essential. Over the next 4 days, in an atmosphere of intense crisis, several crucial compromises were achieved, and on Tuesday April 11, 1967, an amended bill was passed . . . after mild debate with the extraordinary vote of 379 yeas to 29 nays.288

The amendments concerned three areas: jukeboxes (a flat rate of $8 per box); cable television (all references to the issue were deleted); and educational broadcasting (expanded exemptions).

Senate consideration of the general revision began anew with 10 days of hearings during the period March 15-April 28, 1967, but without floor action.289 Along with the old issues, a new one, use of copyrighted works in computers, developed, resulting in Senate passage, on October 12, of separate legislation {Page 83} to establish a National Commission on New Technological Uses of Copyrighted Works.290 This legislation did not, however, pass the House.

1968-1972: Cable Television Stalls the Revision Effort

The problems posed by cable television virtually put an end to the revision process during the years 1968-1972; no hearings were held, and except for Senate subcommittee action in 1969, discussed below, no revision bill even made it past the subcommittee stage during these years. Things were happening, however, behind the scenes,291 at the Federal Communications Commission (FCC),292 and in the courts, in particular two decisions by the Supreme Court in June 1968, upholding the authority of the FCC to regulate cable (and retransmission of distant signals)293 and finding that cable operators did not “perform” the programs they transmitted.294

1969 proved to be significant, not because of any great progress – the revision legislation was merely reported by the Senate subcommittee – but because the bill reported by the subcommittee295 contained a number of amendments that showed up in later bills, and that provided the framework for ultimate resolution of some of the contested issues. The most important amendments made in the bill as reported were the following:

1. A completely rewritten cable section providing for compulsory licensing of purely aural signals, local television signals, and signals transmitted outside any U.S. television market was added. Under a theory of “adequate television service,” a compulsory license would be available for the nearest distant signals needed to supply cable subscribers in the top 50 markets with three network, one educational, and three independent stations; subscribers in all other markets would receive the same number of network and educational signals, but only two independent signals. Provisions for protecting local broadcasters with exclusive licenses from importation of distant signals containing the same program were included. The licensing fees were to be based on a percentage of the cable operator’s gross receipts from subscribers, subject to review and adjustment by a Copyright Royalty Tribunal (CRT). The tribunal was to be part of the Library of Congress and consist of three-member panels appointed from lists drawn from the American Arbitration Association. Congress would have 90 days to veto a rate adjustment.

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2. A new compulsory license for the public performance of sound recordings was added, with the fee based on a complicated formula of percentages and alternatives, again subject to review and adjustment by the CRT.

3. The method for calculating jukebox fees was revised, with fees reviewable by the CRT.

4. The library photocopying section was greatly expanded.

5. A new Title II containing separate design legislation was added.

6. A new subsection (b) was added to Section 102, providing that copyright in an original work of authorship would not extend to the ideas, methods, processes, etc., embodied in the work. The subsection was added in response to concerns that copyright in computer programs might be extended to algorithms.

Many of these proposals met with disfavor, no doubt contributing to the bill’s lack of progress.

1973: Hearings Resume

On July 31 and August 1, 1973, revision hearings before the Senate Subcommittee on Patents, Trademarks, and Copyrights resumed after a six-year hiatus, but were primarily devoted to cable television and library photocopying.296


On March 8, 1974, the Supreme Court, in Teleprompter Corp. v. CBS, Inc.,297 extended the holding of its Fortnightly decision298 to cable retransmissions of “distant signals” (i.e., signals not ordinarily receivable by house-top or tower-mounted antennas). Unlike the Court’s 1968 decision, the Teleprompter decision spurred on rather than stalled the revision effort, with the Senate Subcommittee reporting a revision bill on April 19, and the Judiciary reporting it on July 8.299 As a result of a jurisdictional dispute with the Commerce Committee over the cable issue (a rerun of a dispute in the House in 1967), the bill was sequentially referred to the Commerce Committee on July 9, and reported by that committee on July 29.300

The first Senate floor debates began on September 5, and continued on September 6 and 9, amidst a series of proposed amendments.301 The bill passed on the last day of debate by a vote of 70-1. No action was taken in the House, however, and thus the bill died at the expiration of the 93d Congress. A separate bill to establish the National Commission on New Technological Uses of {Page 85} Copyrighted Works (as originally proposed in 1967), and to extend the term of works whose renewal term was about to expire, S. 3976, was enacted, however.302

Significant changes were made in the revision bill in the Senate at both the committee and floor levels. As passed by the Senate, the following important amendments were made:

1. The bill covered all kinds of cable secondary transmissions. Exemptions for rooftop antennas on apartments and hotels, wired instructional systems, passive carriers, mandatory carriage of pay TV, and nonprofit booster and translator stations were provided. Full liability was established for pay TV, closed-circuit telecasts, and Muzak services. A compulsory license was established for other secondary transmissions, with a sliding fee based on gross revenues. The fee for smaller systems was cut in half, but no distinction was made between local and distant signals in computing fees.

2. The CRT was given the power to adjust compulsory license fees no longer believed reasonable.

3. A compulsory license for public performance of sound recordings was deleted, after it threatened passage of any revision legislation.303

4. The reproduction of single copy of an article by a nonprofit library for a patron was permitted, but coupled with a prohibition on systematic reproduction or distribution of single or multiple copies.

5. An exemption from the manufacturing clause for works printed in Canada was added.

6. An exemption for Vanderbilt University’s taping of television news shows was included.

7. In response to adherence by the Soviet Union to the UCC, a provision was inserted refusing to recognize a foreign government’s expropriation of the copyrights of its citizens.

8. Criminal penalties were increased, especially for sound recordings and motion pictures.


The Senate acted quickly in the 94th Congress, with a revision bill, S. 22, introduced on January 15, 1975. This bill was, but for certain technical amendments, identical to the bill passed the previous year. S. 22 was reported {Page 86} by the Senate Judiciary Committee on November 20, 1975,304 but was not sent to the floor until the next year.

The principal changes made by the Judiciary Committee were the addition of nondramatic literary works to the public broadcasting Section 118 compulsory license; a new exemption for nonprofit broadcasts of literary works for certain handicapped persons; an amendment to Section 114 (at the Justice Department’s request) to clarify that the owner of a sound recording would have the right to prepare derivative works; a reduction in the rate of the mechanical compulsory license and conditioning of that license on obtaining the permission of the owner of the sound recording; a provision for review of jukebox rates; and directions to the Copyright Office to promulgate regulations permitting group registration of periodicals on a single application.

In the meantime, the House began extensive hearings, lasting 16 days between May 7 and December 4, 1975, at which the remaining disputed issues were fully aired by nearly 100 witnesses.305

1976: Passage of the Act

The Senate was the first to act in 1976, beginning debate on S. 22 on February 6, and resuming on February 16-19. On the last day of debate, the bill was passed by a vote of 97-0, with two minor technical amendments.306

Beginning on April 7 and concluding on July 28, 1976, the House subcommittee devoted 22 days to markup of S. 22, during which time extensive changes were made to the bill. As amended, S. 22 was reported by the Subcommittee on August 3, 1976. On September 3, 1976, the House Judiciary Committee reported the bill with an amendment in the nature of a substitute.307 The Judiciary Committee-reported bill contained significant amendments to the Senate-passed version, including the following:

1. Deletion of title II, providing design protection.

2. Deletion of photographs and portrait painting as a category of commissioned work made for-hire.

3. Establishment of a maximum five-year copyright for works of the National Technical Information Service.

4. Revision to the fair use provision to include multiple copies for classroom use as a possible fair use; revision to Section 107(1) to create a distinction between commercial and nonprofit educational uses; and amendment to Section 504(c)(2) to require remission of statutory damages {Page 87} where certain nonprofit employees reasonably believed that their activities constituted fair use.

5. Addition of a proviso on interlibrary loans to Section 108(g)(2), and a requirement that the Register of Copyrights submit reports to Congress every five years on the effectiveness of Section 108.

6. Amendments to Section 110(5)-(8) to take into account the Supreme Court’s 1975 decision in Twentieth Century Music Corp. v. Aiken308 to excuse state governmental bodies from liability for performances at fairs, and to make certain other technical amendments.

7. Amendment to Section 112 to permit more generous ephemeral recording by nonprofit broadcasting organizations.

8. Revised cable compulsory license, embodying a compromise submitted by the motion picture companies and cable systems. Under the compromise, the critical distinction was drawn between local and distant signals, with license fees only payable for distant signals. Fees were based on a two-step process. First, values were to be assigned to independent, network, and educational signals as “distant signal equivalents.” The number of distant signal equivalents was then to be added, and a scaled percentage applied to the computed total. Two categories of small systems were created with reduced rates. The CRT, cast as an independent agency in the legislative branch, with three commissioners appointed by the President, was given the power to adjust rates, with its decisions reviewable under the Administrative Procedure Act by the courts. Other amendments on exemptions for mandatory carriage and grandfathering of Mexican and Canadian signals were also made.

9. The jukebox royalty was set at 2sÞ3s0s8c6 cents per composition or 6

10 of a cent per minute.

10. Amendment of Section 118 to encourage voluntary agreements instead of compulsory licensing.

11. Amendment of Section 301(b)(4) to preempt state protection for sound recordings after February 15, 2047.

12. Scheduled expiration of the manufacturing clause on January 1, 1981.

The House began debate on the bill on September 21, and passed it, as amended, the following day.309 Only two amendments were made on the floor: The first was a minor change in Section 112(d), permitting broadcasters to make ephemeral copies of nondramatic literary works for the visually handicapped. The second amendment, proposed by the Justice Department, deleted from Section 301(b)(3) examples of nonequivalent, nonpreempted causes of action. This amendment was based on a misunderstanding of the bill, and was further complicated by certain members’ misunderstanding of the purpose of the amendment.310

Because substantial differences existed between the House- and Senate-passed versions of the bill, a conference committee was appointed. The conference report was issued on September 29,311 with the differences between the Houses being resolved as follows:

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1. The Senate receded to the House’s deletion of title II of the revision bill, providing separate design legislation.

2. The Senate receded to the House’s deletion of photographs and portrait painting as a category of commissioned work made for-hire.

3. The House receded to the Senate on not giving the National Technical Information Service copyright in its publications.

4. The Senate receded to the House’s amendments on fair use.

5. The Senate receded to the House’s amendments on Section 108.

6. The Senate receded to the House’s amendments to Sections 110(6), (7), and (8). The House receded to the Senate’s version of Section 110(5). A new Section 110(9) was added, exempting nonprofit performances of dramatic literary works transmitted to blind audiences by radio, but only for a single performance of a work published at least ten years earlier.

7. The Senate receded to the House amendment to Section 112.

8. The Senate receded to the House amendments to Section 111, and to most of the provisions on the CRT, except that the number of CRT commissioners was increased to five.

9. The House receded to the Senate mechanical royalty rate in cases where the playing time governs; the Senate receded to the House for the other provisions of Section 115.

10. The Senate receded to the House version of Section 118.

11. The Senate receded to the House version of Section 301(b)(3).

12. The Senate receded to the House phaseout of the manufacturing clause, but pushed the date forward to July 1, 1982.

Debates on the conference report were held in both Houses on September 30, with the report winning approval.312 President Ford signed the legislation on October 19, 1976.313 With the exception of provisions on compulsory licensing for public broadcasting (§118), renewal of works scheduled to expire between December 31, 1976, and December 31, 1977 (§304(b)), and operation of the CRT (chapter 8), the Act did not become effective until January 1, 1978,314 in part to give the Copyright Office time to draft new forms, regulations, and procedures.

The key provisions of the law as enacted included the following:

1. A single federal system of protection for all “original works of authorship,” published or unpublished, from the moment they are fixed in a tangible medium of expression. State laws giving equivalent rights are preempted.

2. A single term of protection generally measured by the life of the author plus 50 years after his or her death, with a term based on publication reserved only for special situations, such as works made for hire.315

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3. An inalienable option generally permitting individual authors and their heirs to terminate transfers of rights, but with the transferee still permitted to exploit derivative works produced under the transfer before termination.

4. Mandatory copyright notice on visually perceptible copies distributed to the public, with some flexibility as to the form and position of the notice, curative provisions for notice deficiencies, and incentives for use of a proper notice, as well as for prompt registration.

5. Recognition of a fair use privilege (with an indication of the criteria for its applicability), as well as exemptions in favor of nonprofit, library, educational, and public broadcasting uses.

6. Imposition of copyright liability on cable television systems and jukeboxes that use copyrighted material, but subject to compulsory license provisions and other limitations.

7. Establishment of a Copyright Royalty Tribunal to review or establish rates under compulsory licenses and to provide for certain distributions to proprietors under such licenses.

By vesting copyright upon creation and fixation, and providing for a single term of protection based upon life of the author plus 50 years, the 1976 Act made substantial progress toward making U.S. law more compatible with the Berne Convention. By retaining formalities such as notice and the manufacturing clause, however, U.S. adherence to the Convention was still impossible. And, by conditioning statutory damages generally on registration before infringement, characterization of the Act’s registration system as “voluntary” was a bit misleading since failure to promptly register effectively deprived many authors of their rights.316

Next section: Amendments to the 1976 Act

260 These studies were originally issued as congressional committee prints and later published in 1963 in two volumes by the Copyright Society of the U.S.A. in an edition dedicated to the late Register of Copyrights Arthur Fisher. The Copyright Society did not, however, include experts’ comments submitted on the studies, copies of which are found in appendices to the committee print versions.

261 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law, 87th Cong., 1st Sess. (House Comm. Print 1961). See Goldberg, Promoting the Progress of Science and Useful Arts: A Commentary on the Copyright Office Report on General Revision of the United States Copyright Law, 47 Cornell L.Q. 549 (1962), for a review of this report. In April 1961, the Register privately circulated a tentative draft of the report. Based on comments from those who received the draft, the final July version was changed in a number of respects.

       Any history of the copyright revision effort is incomplete without a reference to the parallel effort at enacting separate design legislation. Congressional interest in design legislation began in 1914 and was particularly strong in the 1930s. In the 1950s, the Copyright Office worked closely with the Patent Office and the Coordinating Committee of the National Council of Patent Law Associations in developing and drafting design legislation. The goal, never achieved, was to have design legislation enacted before the legislative phase of the copyright revision began. The effort was thrown off track, in part, by the Supreme Court’s 1954 decision in Mazer v. Stein, 347 U.S. 201 (1954), upholding copyright in figurines used as lamp bases. In 1957, separate design legislation was introduced in the House, but congressional hearings were not held until 1960, before the Senate, which held further hearings in 1961. In 1962, the Senate passed a design bill, but it died when the House failed to act. The Senate passed another design bill in 1963, and although House Judiciary Committee, subcommittee No. 3 held hearings and reported it favorably to the full Judiciary Committee on August 12, 1964, no further action was taken during that session of Congress. On July 28, 1965, the Senate Subcommittee on Patents, Trademarks and Copyrights held hearings on a design bill, which it favorably reported to the Judiciary Committee on July 22, 1966. Five days later, the bill passed the Senate, but again the House took no action on the legislation. In 1969, the Senate took a different approach, attaching design legislation to the copyright revision bill as title II. In this form, the bill was reported by the Senate Subcommittee on Patents, Trademarks and Copyright on December 10, 1969. Five years elapsed, however, before the Senate passed a general copyright revision bill. On September 9, 1974, a revision bill (incorporating design protection) was passed, but once again the House failed to act. The Senate repassed the bill the following year on February 19. On September 22, 1976, the House passed the Senate bill as amended. One of the amendments was the striking of design protection. The Senate receded to the House amendments in conference, and thus, as passed, the 1976 Act did not contain design protection. Design bills have been introduced in virtually every Congress since 1976, but without success.

262 Copyright Law Revision Part 6: Supplementary Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law, 89th Cong., 1st Sess. ix (Comm. Print 1965). See Litman, Copyright Legislation and Technological Change, 68 Or. L. Rev. 275, 308-314 (1989), for a brief review of the revision process.

263 Copyright Law Revision Part 6: Supplementary Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law, 89th Cong., 1st Sess. x (House Comm. Print 1965). This is, of course, the system ultimately adopted in the 1976 Act. In the face of the strong opposition to its recommendation, the Copyright Office abandoned the proposal in November, 1962. Id. at xi.

264 Id. at 71.

265 This recommendation “produced a storm of controversy,” Second Supplementary Report of the Register of Copyright on the General Revision of the U.S. Copyright Law: 1975 Revision Bill Ch. IX at 6 (Draft ed. 1975), and resulted in the curious scenario of the two opposing sides agreeing to retain the compulsory license, even though there was sharp disagreement about the amount of the fee.

266 Atranscript of these meetings, along with later written submissions, is reproduced in Copyright Law Revision Part 2: Discussions and Comments on Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law, 88th Cong., 1st Sess.(House Comm. Print 1963).

267 Copyright Law Revision Part 6: Supplementary Report of the Register of Copyrights of the General Revision of the U.S. Copyright Law: 1965 Revision Bill, 89th Cong., 1st Sess.x (House Comm. Print 1965).

268 The preliminary draft bill, the transcript of these meetings, and later written comments are reproduced in Copyright Law Revision Part 3: Preliminary Draft for Revised U.S. Copyright Law and Discussions and Comments on the Draft (1964). On May 2-3, 1963, congressional hearings were held on the jukebox issue. See Providing for Royalties for Musical Compositions on Coin-Operated Machines: Hearings on H.R. 5174 Before Subcomm. No. 3 of the House Judiciary Comm., 88th Cong., 1st Sess. (1963). The Senate had held three days of hearings on the issue five years earlier. See Rendition of Musical Compositions on Coin-Operated Machines: Hearings on S. 1870 Before a Subcomm. of the Senate Judiciary Comm., 85th Cong., 2d Sess. (1958). Given the relatively small amount of money involved, and the lack of a readily identifiable public interest on the jukebox operators’ part, the jukebox controversy consumed an amazing amount of congressional time. Between 1947 and 1965, there were 25 days of congressional hearings devoted to the subject.

269 Atranscript of these meetings and later submissions are reproduced in Copyright Law Revision Part 4: Further Discussions and Comments on Preliminary Draft for Revised U.S. Copyright Law, 88th Cong., 2d Sess. (House Comm. Print 1964).

270 Copyright Law Revision Part 6: Supplementary Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law: 1965 Revision Bill xi (House Comm. Print 1965).

271 88th Cong., 1st Sess. (1964); 110 Cong. Rec. 16256, 16341 (H.R. 11947); 110 Cong. Rec. 16260-261 (S. 3008). On August 12th, Rep. St. Onge introduced an identical bill, H.R. 12354, 110 Cong. Rec. 19259.

272 Atranscript of this meeting and later written submissions are reproduced in Copyright Law Revision Part 5: 1964 Revision Bill With Discussions and Comments, 89th Cong., 1st Sess. (House Comm. Print 1965).

273 89th Cong., 1st Sess.; 111 Cong. Rec. 2076 (H.R. 4347); 111 Cong. Rec. 1985 (S. 1006). On March 2, 1965, H.R. 5680, identical to H.R. 4347 except for the correction of typographical errors, was introduced, 111 Cong. Rec. 3989. On March 26, 1965, two more bills identical to H.R. 4347 were introduced, H.R. 6831 and H.R. 6835, 111Cong. Rec. 6175 (H.R. 6831), 111 Cong. Rec. 6175 (H.R. 6835).

274 Copyright Law Revision Part 6: Supplementary Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law: 1965 Revision Bill, 89th Cong., 1st Sess.(House Comm. Print 1965).

275 The Subcommittee is presently called the Subcommittee on Intellectual Property and Judicial Administration. The author is counsel to the Subcommittee.

276 Copyright Law Revision: Hearings on H.R. 4347 et al. Before Subcomm. No. 3 of the House Judiciary Comm., 89th Cong., 1st Sess. (1965).

277 Serious efforts at compromise on this issue were made in 1965, but apparently broke down over the “reproduction proofs” problem (the practice of American publishers having type set overseas and only the actual printing done in the United States). See H.R. Rep. No. 2237, 89th Cong., 2d Sess. 161, 164-165 (1966).

278 The cable issue also began spilling over into other committees. Four days of hearings on cable were held in 1965 before a different subcommittee in the House. See Regulation of Community Antenna Television: Hearings on H.R. 7715 Before the Subcomm.on Communications and Power of the House Comm. on Interstate and Foreign Commerce, 89th Cong., 1st Sess. (1965). Six days of hearings on the issue were held before the full Interstate and Foreign Commerce Committee in 1966. See Regulation of Community Antenna Television: Hearings on H.R. 12914 et al. Before the House Comm. on Interstate and Foreign Commerce, 89th Cong., 2d Sess.(1966).

279 Copyright Law Revision: Hearings on H.R. 4347 et al. Before Subcomm. No. 3 of the House Judiciary Comm., 89th Cong., 1st Sess. 134, 148-149 (1965).

280 The only change in the agreement was the gradual expansion of the number of potential categories of commissioned works made for-hire from four to nine.

281 Copyright Law Revision: Hearings on S. 1006 Before the Subcomm. on Patents, Trademarks, and Copyrights of the Senate Judiciary Comm., 89th Cong., 1st Sess. (1965).

282 H.R.Rep. No. 2237, 89th Cong., 2d Sess. (1966).

283 This provision was later described by Register of Copyrights Barbara Ringer as “the seed from which the monster” of the library photocopying issue grew. Second Supplementary Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law: 1975 Revision Bill, Ch. III at 9 (draft ed. 1975).

284 Copyright Law Revision – CATV: Hearings on S. 1006 Before the Subcomm. on Patents, Trademarks, and Copyrights of the Senate Judiciary Comm., 89th Cong., 2d Sess. (1966).

285 H.R. 2512, S. 597, 90th Cong., 1st Sess. (1967).

286 H.R.Rep. No. 83, 90th Cong., 1st Sess. (1967).

287 See Copyright Law Revision: Hearing on H.R. 2223 Before the Subcomm. on Courts, Civil Liberties and the Administration of Justice of the House Judiciary Comm., 94th Cong., 1st Sess. 104 (1975).

288 Id. The debates are reported at 113 Cong. Rec. 8580-622, 8990-9022, and 9208.

289 Copyright Law Revision: Hearings Before the Subcomm. on Patents, Trademarks, and Copyrights of the Senate Judiciary Comm., 90th Cong., 1st Sess.(1967).

290 S. 2216, 90th Cong., 1st Sess. (1967).

291 For example, in 1968, publishers, book manufacturers, and printers agreed on the contents and wording of the manufacturing clause.

292 On December 12, 1968, the FCC, in response to the Supreme Court’s decisions in United States v. Southwestern Cable Co., 392 U.S. 157 (1968), and Fortnightly Corp. v. United Artists Television, Inc., 392 U.S. 390 (1968), issued new, and very restrictive, regulations on cable importation of distant signals. See Chapter 12, text at notes 281-83.

293 United States v. Southwestern Cable Co., 392 U.S. 157 (1968).

294 Fortnightly Corp. v. United Artists Television, Inc., 392 U.S. 390 (1968).

295 S. 543, 91st Cong., 1st Sess. (1969).

296 Hearings on S. 1361 Before the Subcomm. on Patents, Trademarks, and Copyrights of the Senate Judiciary Committee, 93d Cong., 1st Sess.(1973). Issues concerning sports and religious broadcasting were also raised.

297 415 U.S. 394 (1974).

298 Fortnightly Corp. v. United Artists Television, Inc., 392 U.S. 390 (1968).

299 S.Rep. No. 983, 93d Cong., 2d Sess. (1974).

300 S.Rep. No. 983 pt. 2, 93d Cong., 2dSess. (1974). See also S. Rep. No. 1035, 93d Cong., 2d Sess. (1974) (Star Print).

301 120Cong. Rec. 30397-408, 30477-516 (1974).

302 Act of December 31, 1974, Pub. L. No. 93-573, 93d Cong., 2d Sess., 88 Stat. 1873.

303 Separate bills to provide such a license were introduced in the House and Senate in 1975, H.R. 5345 and S. 1111, 94th Cong., 1st Sess.(1975).See also Performance Royalty: Hearings on S. 1111 Before the Subcomm. on Patents, Trademarks, and Copyrights of the Senate Judiciary Comm., 94th Cong., 1st Sess. (1975); Copyright Miscellany: Hearing on S. 3976 Before the Subcomm. on Courts, Civil Liberties, and the Administration of Justice of the House Judiciary Comm., 93d Cong., 2d Sess. (1974) (hearing to remove the expiration date on protection for sound recordings, increase the criminal penalties for piracy and counterfeiting of sound recordings, extend the term, and establish CONTU).

304 S.Rep. No. 473, 94th Cong., 1st Sess. (1975).

305 Copyright Law Revision: Hearings on H.R. 2223 Before the Subcomm. on Courts, Civil Liberties and the Administration of Justice of the House Judiciary Comm., 94th Cong., 1st Sess. (1975). To aid members of the Subcommittee in their deliberations, the Copyright Office prepared 18 short briefing papers to provide both general information and to pinpoint particular issues. These papers are reproduced id. at 2051-91.

306 122Cong. Rec. 3143-152, 3441-444, 3642, 3821-59, 94th Cong., 2d Sess. (1976).

307 H.R.Rep. No. 1476, 94th Cong., 2d Sess. (1976).

308 422 U.S. 151 (1975).

309 122Cong. Rec. 31977-32016 (Sept. 22, 1976).

310 See Chapter 15, text at note 155.

311 H.R.Rep. No. 1733, 94th Cong., 2d Sess.; 122 Cong. Rec. 33678-682.

312 122Cong. Rec. 33813-815, 33818-819, 34225-226 (Sept. 30, 1976).

313 Act of October 19, 1976, Pub. L. No. 94-553, 94th Cong., 2d Sess., 90 Stat. 2541.

314 Act of October 19, 1976, Transitional and Supplementary §102, Pub. L. No. 94-553, 94th Cong., 2d Sess., 90 Stat. 2541.

315 Undue pride should not be taken in this late tying of rights to authors (by vesting copyright upon creation) rather than publishers (by vesting copyright on publication with notice). In 1842, the British Parliament, after hearing an eloquent debate between Sergeant Talfourd and Lord Macaulay, sided with Talfourd and extended the term of protection to life of the author plus 7 years, or 42 years from publication, whichever was longer. See 56 Parl. Deb. H.C. (3d. ser.) 342-60 (1841). In 1911, the term was extended simply to life of the author plus 50 years. France granted a life plus 10-year term in 1793, a term adopted by Spain in 1834. See also Chapter 6, note 19.

316 The Act’s separation of the Library of Congress mandatory deposit requirement (§407) from registration (§§408, 410), did, however, provide an important philosophical advance over the 1909 Act’s combined system, even if most of the practical benefits of the separation were rendered null by §§411(a) and 412.