R Street Primer on Copyright Legislation

(See also our Music-Licensing Case Annex and our Music Licensing and Copyright Glossary)


Copyright Act of 1976: The current Copyright Act in the United States. Enacted in response to the substantial technological advances since 1909 in motion picture, television and sound recordings (including uses by terrestrial radio). In addition to technological advancements, the United States participated in the Universal Copyright Convention, which it had joined in 1955, and their anticipated participation in the Berne Convention, which it would join in 1989.

The 1976 Act no longer required a notice of copyright affixed; the work only needed to be fixed. This incorporated state copyright laws, which provided a copyright protection to unpublished works. The scope of copyright was broadened under section 102 of the act to include:

  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 audiovisual works;
  7. sound recordings; and
  8. architectural works (amended in 1990).

Section 102(b) reiterates that copyright protection does not extend to any of the following, regardless of the form in which they are described, explained, illustrated or embodied:

– ideas;
– procedures;
– processes;
– systems;
– methods of operation;
– concepts;
– principles; or
– discoveries.

Exclusive rights were expanded in sections 107 to 122 of the act, to include:

– the right to reproduce (copy) the work into copies and phonorecords;
– the right to create derivative works of the original work ;
– the right to distribute copies and phonorecords of the work for sale, lease or rental to the public;
– the right to perform the work publicly, if is is a literary, musical, dramatic, choreographic, pantomime, motion picture or other audiovisual work;
– the right to display the work publicly, if it is a literary, musical, dramatic, choreographic, pantomime, pictorial, graphic, sculptural, motion picture or other audiovisual work; and
– the right to perform a sound recording by means of digital audio (amended in 1995).

The doctrine of “fair use” was codified, from centuries of case law, into section 107. The act also extended copyright protection for the life of the author, plus 50 years. In addition, it created a static 75-year term from date of publication for anonymous works, pseudonymous works and works made for-hire. Works that were extended copyright before Jan. 1, 1978 and that had not already entered the public domain, received an additional 75 years.

The law has been contentious for several reasons, including its extension of copyright terms, that it did not grant copyrights in procedures or processes and, finally, the impact it has had on innovation. Section 801(D) of the act instituted a Copyright Royalty Board, which was directed to “minimize any disruptive impact on the structure of the industries involved and on generally prevailing industry practices.” In the ever-evolving Digital Age, this direction has proved problematic, as it favors old technology and discourages new entrants that may be considered “disruptive.”


 

Digital Millennium Copyright Act (DMCA) (1998): The DMCA implemented the World Intellectual Property Organization (WIPO) Copyright Treaty and Performances and Phonograms Treaty in its amended form, created a statutory liability limitation for online copyright infringement liability and also included various other provisions.

Title I: WIPO Treaties Implementation

– Implementation of the WIPO Copyright and Performances and Phonograms Treaties Implementation Act and the DMCA anti-circumvention provisions (17 USC 1201).
– The anti-circumvention provision amends the remedies for the circumvention of copy-protected systems. In addition, it required all analog video recorders to include support for copy protection.
– Allows for exemptions in reverse engineering for those who have lawfully obtained a right to use a copy of a computer program for the sole purpose of identifying and analyzing the program and further innovation.
– Nonprofit libraries may also circumvent, so long as their research is for archiving and made in good faith.
– Encryption research permits circumvention to access control measures to identify flaws and vulnerabilities in encryption technologies.
– Any individual may seek a civil action in federal court for alleged circumvention and receive equitable and monetary remedies similar to those available in the Copyright Act. In addition, circumvention is a criminal offense if done willfully and for the purpose of commercial advantage or private financial gain. Penalties range up to a $500,000 fine or five years imprisonment for a first offense and up to a $1 million fine or up to 10 years imprisonment for subsequent offenses. Nonprofit libraries, archives, and educational institutions are completely exempt.

Title II: Online Copyright Infringement Liability Limitation

– The Online Copyright Infringement Liability Limitation” (OCILLA”) creates a “safe harbor” for online providers (OSPs, ISPs) against copyright infringement liability if they meet specific requirements. Service providers must: promptly block access to alleged infringing material (or remove it from their systems) when they receive a notification of an infringement claim from the copyright holder or agent. There is also a counter notification providing a safe harbor from users when they claim there is no infringement. In addition, subpoenas may be served to the service provider to demand an infringing user’s identity.

Title III: Computer Maintenance Competition Assurance Act

– Reversed the precedent of MAI Systems Corp v Peak Computer, Inc. Under Title III, those repairing a computer are allowed to make limited and temporary copies of a computer’s system.

Title IV: Miscellaneous Provisions

– Confirmed the Copyright Office’s authority to continue to perform policy and international functions.
– Expands the definition of “ephemeral recordings” to include those made to facilitate the digital transmission of a sound recording, where the transmission is made under the Digital Performance Right in Sound Recordings Act of 1995. The act also allows for some circumvention in access control technologies in order to enable creation of an ephemeral recording.
– Directs the Copyright Office to consult with affected parties and make recommendations to Congress as how to promote distance education through digital technologies.
– Previously, libraries were only allowed to copy one article and were prohibited from doing so digitally. The act permits up to three copies, which may be digital, provided the digital copies are not made available outside of the library premises. Libraries are not allowed to archive a copy of a work in a new format if the original is obsolete.
– Expands the scope of statutory licenses to include webcasting under the heading, “eligible nonsubscription transmissions.”
– Addresses the concern of how to obtain residual payments for the exploitation of motion pictures when the producer is no longer able to make payments. This provision amends the bargaining agreements of the parties and attaches the obligation to the distributor, if they knew (or should have known) that the motion picture was produced subject to such a collective-bargaining agreement. The obligation also attaches to the producer in the event of a court order confirming an arbitration award under the bargaining agreement that the producer cannot satisfy payment within a 90-day period. Two classes of transfers are excluded from this provision: transfers limited to public performance rights and grants of security interests, along with subsequent transfers from the security interest holder. The Comptroller General’s Office, in consultation with the Register of Copyrights, was required to conduct a study in regard to what gave rise to his provision and its impact within two years of enactment, in 2000.

Title V: Vessel Hull Design

– Vessel Hull Design Protection Act (VHDPA) provides for sui generis protection for boat-hull designs. This previously was not provided for under copyright law, because they were considered useful articles (see Section 101 of the 1976 Act).


The Copyright Royalty and Distribution Reform Act of 2004: The act modified the procedural framework for adjudicating royalty rates under the 1976 act for compulsory licenses of digital transmission of sound recordings in webcasting. It also changed the composition of the Copyright Royalty Board to consist of three judges appointed for six-year terms.


The Satellite Home Viewer Extension and Reauthorization Act of 2004: The act amended Section 119 of the 1976 act to extend the statutory license for satellite carriers for retransmission of over-the-air television broadcast stations to a term of five years.


The Intellectual Property Protection and Courts Amendments Act of 2004: The act created both civil and criminal penalties to punish creation of counterfeit labels, documentation and packaging associated with trademarked goods. In addition, it lowered the bar for willful infringement to include domain-name registration.


The Prioritizing Resources and Organization for Intellectual Property Act of 2008 (Pro-IP Act): The act established the executive branch Office of the U.S. Intellectual Property Enforcement Representative (USIPER) to coordinate anti-piracy efforts with the Department of Justice (DOJ), Patent and Trademark Office (PTO) and the Office of the U.S. Trade Representative (USTR). It also increased penalties for both civil and criminal trademark, patent and copyright infringement. For civil enforcement, penalties now top out at $30,000. Statutory damages for production of counterfeit goods now range from $1,000 to $200,000 and repeat offenders may receive penalties of up to $2 million.

Furthermore, the DOJ was granted authority to press civil suits on behalf of copyright holders and to conduct civil-asset forfeiture in cases where a computer or network was involved in a copyright crime. Plaintiffs further were granted authority to seek bank accounts, financial statements and any other documents needed to trace the source of the infringing goods. Exporting infringing goods was also made illegal, an update to the 1976 Act, which only made importation a crime.

This act also directed the Government Accountability Office (GAO) to report on the nature and scope of statutory intellectual property cases related to trafficking and counterfeit goods.

The act further allowed musicians and publishers opportunity to register works with U.S. Customs and Border Protection. Where this is done, the CBP was required to notify rights holders if any unauthorized copies of their works entered the country.


The Satellite Television Extension and Localism Act of 2010 (STELA): The act renewed the Satellite Home Viewer Extension and Reauthorization Act of 2004 to extend the statutory licenses of satellite-television companies to transmit broadcast stations for an additional five years. It also modernized and simplified the licensing process to encourage satellite providers to make more local content available for retransmission.


Copyright Act of 1790: The first federal copyright act, it secured to American authors the exclusive “sole right and liberty of printing, reprinting, publishing and vending” copies of their “maps, charts and books” for a term of 14 years, with the right to renew for another 14-year term.


Copyright Act of 1909: The act extended the term of copyright to 28 years from the date of publication, with the option for a renewal term. Works were required to be published and have a copyright notice affixed, or the work would fall into the public domain. Significant amendments in the act include changing the requirement that foreign authors submit two editions of their text to a requirement they submit one only and only the best edition; motion pictures were granted copyright as films, not as a series of photographic stills; and a provision allowing authors who are prevented from securing a copyright notice during emergency periods, such as war, to acquire a license later.

Section 1(e) instituted the first compulsory mechanical license to produce a mechanical reproduction of a musical composition without the consent of the copyright owner, provided the licensee followed the provisions of the license. This section is directly attributable to the Supreme Court case,White-Smith Music Publishing Co. v Apollo Co., in which the court ruled creators of pianola music rolls were not required to pay royalties to music composers, on grounds that the rolls were not direct copies readable by the human eye.


Sound Recording Act of 1971: This act extended federal copyright protections to sound recordings fixed on or after 1972. Sound recordings fixed before that date were subject to state or common-law copyright. Sound recordings were considered writings, but not provided all of the same exclusive rights afforded to authors. The act did not provide for a public performance right.

It was enacted partly in response to the popularity of “bootleg” recordings produced by the label Trade Mark of Quality (TMOQ or TMQ), which recorded and fixed copies of famous performances, most notably, by the Beatles, the Rolling Stones, Devo and Bob Dylan.


Digital Performance Right in Sound Recordings Act of 1995 (DPRA): The act grants owners of sound recording copyrights an exclusive right to perform the work publicly by means of digital audio transmission. Under this act, services are divided into three tiers: nonsubscription broadcast transmissions (terrestrial radio) is exempt from paying licensing fees, noninteractive Internet transmissions (such as Pandora Radio) are required to pay a statutory license provided by the Copyright Royalty Board and interactive Internet services (such as Spotify) are required to negotiate a license directly with the copyright holder.


Telecommunications Act of 1996: A comprehensive overhaul of the Telecommunications Act of 1966, this act incorporated the Internet into broadcasting for the first time. It includes seven titles, covering telecommunications, broadcast and cable services; regulatory reform; obscenity and violence; the act’s effects on other laws; and miscellaneous provisions.


Copyright Extension Act (“Sonny Bono Act” “Mickey Mouse Protection Act”) (1998): The act extended copyright terms to the life of an author plus 70 years. For works of corporate authorship, the term was extended to 120 years after creation or 95 years after publication, whichever comes first. For works published before Jan. 1, 1978, the act retroactively extended their term to 95 years, at which point, they would enter the public domain. In addition, works made after 1923 that were still under copyright as of 1998 would not enter the public domain until 2019, unless affirmatively released by the copyright owner.


Small Webcaster Settlement Act of 2002: The act authorized SoundExchange and the receiving agent designated in the initial rate-setting proceedings by the Library of Congress to enter agreements on behalf of all copyright owners and performers. The purpose was to establish an alternative payment structure for small commercial and noncommercial webcasters who operate under the Section 112 and Section 114 statutory-license scheme.


Webcaster Settlement Act of 2008/Webcaster Settlement Act of 2009: For the 2006 to 2010 period, the Copyright Royalty Board announced a “willing buyer/willing seller” standard would be used. However, during this round, the rate was so high it exceeded some webcasters’ total revenues. Due to this, a revival and extension of the Small Webcaster Settlement Act of 2002 was enacted in the 2008 and 2009 Webcaster Settlement acts. Congress allowed for parties voluntarily negotiating a licensing agreement to define their royalty rate for a set period of not more than 11 years. Congress further stated the deals reached could not be used as benchmarks in future rate setting.

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