The New Copyright Law: What it Means to General Practitioners
| Jurisdiction | United States,Federal |
| Citation | Vol. 7 No. 1 Pg. 1 |
| Pages | 1 |
| Publication year | 1978 |
1978, January, Pg. 1. The New Copyright Law: What It Means to General Practitioners
The new Copyright Act, effective January 1, 1978, contains provisions which simultaneously simplify and complicate the law of copyright in the United States. The role of the general practitioner in advising authors, librarians, teachers, nightclub owners, and in certain probate matters will become increasingly important; it is therefore imperative that the general practitioner be acquainted with the provisions of the new Act.
The article will trace the development and history of the new Copyright Act, discuss the nature of copyrights and the protection afforded by the new statute, the procedure for obtaining a copyright, the duration of a copyright, limitations on the exclusive rights granted by the Copyright Act, compulsory licensing, transfer of title problems in copyrights, and the remedies available for infringement of copyrights.
It is not possible, in one short article, to provide an in-depth discussion of all the ramifications of the new Copyright Act. Thus, this discussion, of necessity, is aimed at providing only a general background of the new Copyright Act.
The Copyright Act of 1976,(fn1) as with all copyright acts in the United States, is derived from the 1709 English Statute of Anne,(fn2) which provided:
A. Authors of books not yet printed were to have the sole right of printing for 14 years from the date of publication. After the expiration of the 14-year term, the sole right of printing returned to the Author, if then living, for another term of 14 years.
B. Infringers forfeited the infringing books found in their custody and paid a fine of a penny for every sheet. Half of the fine went to the Crown and the other half to the Plaintiff.
C. No suit could be brought unless the title of the book had been entered before publication in a "Registered Book" of the Company of Stationers. The Clerk of the Company gave a certificate of such entry and the register could be inspected without a fee.(fn3)
The above terms of the Statute of Anne appeared in various forms in state copyright laws issued under the Articles of Confederation(fn4) and the United States Copyright Act of 1790.(fn5) The Act of 1790 and all subsequent copyright acts were authorized by the United States Constitution, which provides: "The Congress shall have Power. . . to promote the
Progress of Science and useful Arts by securing for limited times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."(fn6)
The 1790 law protected only works of American authors, and sanctioned the unrestrained reprinting of popular foreign writers. The law was further modified,(fn7) and, finally, on March 4, 1909, Congress enacted a comprehensive Copyright Act,(fn8) which was essentially a codification of the current case law at that time.
The genesis of the Copyright Act of 1976 occurred in 1955, when the Copyright Office began studying certain revisions. The Copyright Office presented its report on general revision in 1961, and a hearing was held by the House of Representatives in 1965.(fn9) After a series of extensive hearings in the House and Senate,(fn10) President Ford signed the Copyright Act into law.(fn11)
The Copyright Act of 1909, as amended,(fn12) protected primarily only published works. Unpublished works, however, were protected by state common law. Thus, a dual system of protection prevailed---one based upon state law and one based upon federal law. The 1976 Act preempts all state common law protection, and provides for a uniform system of federal statutory copyright for published and unpublished works. This is a fundamental change. The new Act embraces a work from the date of its "creation," rather than the date of its "publication." Thus, on and after January 1, 1978, all works that come within the subject matter of copyrights, whether created before or after that date, are governed exclusively by the new Act.(fn13)
The new Copyright Act provides:(fn14) Copyright protection subsists. . . in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they may be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.
The following types of copyrightable works are specifically set forth in the Act:(fn15) (1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic and sculptural works; (6) motion pictures and other audio-visual works; and (7) sound recordings. The Act specifically precludes protection for ideas, procedures, processes, systems, methods of operation, concepts, principles, or discoveries, regardless of the form in which they are described or explained in a work.(fn16) The Copyright Office has indicated that it intends to group works for registration into the following categories:(fn17) (1) nondramatic literary works, including serials and periodicals (class TX); (2) performing arts, including motion pictures (class PA); (3) visual arts, including maps (class VA); (4) sound recordings (class SR); and (5) all renewals (class RE).
The authors believe that reference to the current law under the old Act will be the best guide to interpreting the subject matter of the new Act. The Copyright Office applied the following test under the old Act:(fn18)
To be copyrightable, a work must contain at least a minimum amount of authorship in the form of original literary, artistic, or musical expression.
The Copyright Office considered the following to be proper subject matter for registration under the old copyright law:(fn19)
1. Books.
2. Periodicals.
3. Lectures or Similar Productions Prepared for Oral Delivery.
4. Dramatic and Dramatico-Musical Compositions.
5. Musical Compositions.
6. Maps.
7. Works of Art; or Models or Designs for Works of Art.
8. Reproductions of Works of Art.
9. Drawings or Sculptural Works of a Scientific or Technical Character.
10. Photographs.
11. Prints, Pictorial Illustrations, and Commercial Prints or Labels.
12. Motion-Picture Photoplays.
13. Motion Pictures Other than Photoplays.
14. Sound Recordings.
The following are not considered proper subject matter under the old Act:
1. Names, titles and short phrases.(fn20)
2. Blank Forms (e.g., standard calendars, height and weight charts, tape measures, rulers, lists, tables, etc.).(fn21)
Under the old Copyright Act, omissions or errors in a copyright notice automatically resulted in a loss of the copyright upon publication of the work.(fn22) Indeed, even if a proper copyright notice was placed on the work, though placed in the wrong position, copyright protection could be lost. The new Act is not as harsh. It provides that notice shall be affixed to the copies in such a manner and location as to give "reasonable notice of the claim of copyright."(fn23) The Act further provides that omission of the copyright notice does not invalidate the copyright if any of the following events occur:(fn24)
1. The notice has been omitted on no more than a relatively small number of copies or phonorecords distributed to the public; or
2. Registration for the work has been made before or is made within 5 years after publication without notice, and a reasonable effort is made to add notice to all copies or phonorecords that are distributed to the public in the United States after the omission has been discovered; or
3. The notice has been omitted in violation of an express requirement in writing that, as a condition of the copyright owner's authorization
of the public distribution of copies of phonorecords, they bear the prescribed notice.
Any person, however, who innocently infringes a copyright, in reliance...
To continue reading
Request your trial