October 19, 2012
Others do the opposite.
Perhaps no body of law has become more relevant with the progression of technology – specifically, information technology – than copyright law.
The basis for all copyright law in the United States is currently the Copyright Act of 1976, which was signed into law by President Gerald Ford 36 years ago today, on October 19, 1976.
Although the 1976 Copyright Act is the foundation of contemporary U.S. copyright law, it’s not the first or only federal copyright law, nor is it currently in the same state that it was at its signing.
There were three other such acts that preceded it: the similarly named Copyright Acts of 1790, 1831, and 1909.
Regardless, some of the most well-known hallmarks of our current copyright system are because of the 1976 Act.
For one, the Act codified for the first time copyright holders’ five “exclusive rights.”
These rights, found at 17 U.S.C. § 106, are the right to:
- reproduce the copyrighted work in copies or phonorecords;
- prepare derivative works based upon the copyrighted work;
- distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
- perform the copyrighted work publicly; and
- display the copyrighted work publicly.
(Those last two only apply to works that are capable of being performed or displayed publicly).
These five – well, since 1995’s addition of another right to digitally perform a work publicly – six exclusive rights are the basis for nearly all copyright enforcement actions.
Of course, as those who have looked at the law may have noticed, there are several sections that are “limitations on exclusive rights.”
One of the most widely invoked of these is § 107: fair use.
The 1976 Act is the first time that the principle of fair use was codified into federal law.
Although this exception had been legally available before 1976 (through common law), its codification firmly cemented its place in the realm of copyright law.
What exactly is “fair use?”
It sets down certain circumstances wherein the use of copyrighted material without author’s or creator’s permission is not infringement.
Whether a use is considered “fair” typically entails a case-by-case analysis, but four statutory factors are almost always used in this evaluation:
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
These four factors are merely a starting point, however; there is voluminous case law on the interpretation of these factors in various scenarios, and entire books have been written on interpreting this case law.
Regardless of how complex fair use may be, a myriad of individuals and organizations continuously invoke the principle for uses such as education, news reporting, satire, and criticism.
There is no question that the 1976 Copyright Act’s “exclusive rights” extend extremely broad protections for copyright holders.
However, the fair use exception to these exclusive rights is also very broad, and serves as an excellent balance to creators’ exclusive right so to ensure wider public access to information.
As technology progresses further, and information is made more easily available and communicable, we can only hope that the 1976 Act’s successor is just as protective of public access to information.