On this day in 1976, President Gerald Ford signed the “new” US Copyright Act. The culmination of a decades-long effort, and well before the Digital Millennium Copyright Act and Copyright Term Extension Act were passed in 1998, the 1976 Copyright Act ushered in a new era of copyright law in the United States.
The 1976 Act was the first major revision of US copyright law since the 1909 Act, which was passed during the era of Mark Twain, ragtime, player pianos, and early silent films. The 1976 Act brought in many aspects of copyright with which we are now familiar, including codifying fair use in Section 107 (it previously had been applied on a common law basis). The Act also did away with some formalities; no longer do you have to renew your copyright to enjoy the full term of protection and no longer are copyright notices required for protection. And one quirk: while we refer to the law as the 1976 Act, its effective date is actually January 1, 1978 (the same date that CCC opened its doors, not coincidentally).
Interestingly, President Ford’s signature on the 1976 Act was not his last public brush with copyright law. Instead, in 1985, Ford’s memoir was at the center of the landmark Supreme Court case Harper & Row v. Nation Enterprises. In his memoir, Ford recounted growing up in Michigan, serving in Congress, and the complicated events of the 1970’s that brought him to the Presidency. Harper & Row had a first publication rights agreement with Ford, but The Nation used a pre-publication copy of the memoir to scoop everyone else with an excerpt from the book. Of course, The Nation published the juiciest details from the memoir: Ford’s reasons for pardoning his predecessor, Richard Nixon. Harper & Row brought suit and The Nation argued that publishing the excerpts was a fair use. The case went all the way to the US Supreme Court, which applied the four fair use factors spelled out in the recent implemented 1976 Act, reversed the Court of Appeals, and found that the use was not fair. Justice O’Connor, who delivered the Court’s opinion, wrote:
The Court of Appeals erred in concluding that The Nation‘s use of the copyrighted material was excused by the public’s interest in the subject matter. It erred, as well, in overlooking the unpublished nature of the work and the resulting impact on the potential market for first serial rights of permitting unauthorized prepublication excerpts under the rubric of fair use. Finally, in finding the taking ‘infinitesimal,’ the Court of Appeals accorded too little weight to the qualitative importance of the quoted passages of original expression. In sum, the traditional doctrine of fair use, as embodied in the Copyright Act, does not sanction the use made by The Nation of these copyrighted materials. Any copyright infringer may claim to benefit the public by increasing public access to the copyrighted work. But Congress has not designed, and we see no warrant for judicially imposing, a ‘compulsory license’ permitting unfettered access to the unpublished copyrighted expression of public figures.
The decision also includes one of my favorite Supreme Court quotes on copyright, Justice O’Connor’s eloquent description of copyright: “[I]t should not be forgotten that the Framers intended copyright itself to be the engine of free expression. By establishing a marketable right to the use of one’s expression, copyright supplies the economic incentive to create and disseminate ideas.”
In the many years that have since passed, the 1976 Act has been updated many times. Along with these revisions, the Act continues to provide the United States with a flexible and balanced copyright law that promotes copyright’s constitutional mission to promote progress and work as the engine of free expression.