29th Annual BTLJ-BCLT Spring Symposium: Origins, Evolution, and Possible Futures of the 1976 Copyright Act: Origins of the Copyright Act

29th Annual BTLJ-BCLT Spring Symposium: Origins, Evolution, and Possible Futures of the 1976 Copyright Act

[apologies—seriously delayed flight means my notetaking will be bad.]

Panel 1: Origins of the 1976 Copyright Act

Peter Menell, UC Berkeley Law (Speaker and Moderator): Copyright revision was extensive process of negotiation, occurring alongside movement for racial equality. Some view this as a product of back rooms (shows a picture with only white guys in it). 60s and 70s weren’t the kind of “swamp” we have now. Many studies on historical, philosophical, comparative, economic, and other aspects of ©. Recommendations for broad rights in order to deal with the possibility that “a particular use which may seem to have little or no economic impact on the author’s rights today can assume tremendous importance in times to come.” Importantly, removed general limits on nonprofit uses despite concerns of librarians and educators.

Hollywood didn’t “run the table”—there was some movement to protect authors. Work made for hire renegotiated, and termination of transfers made inalienable, but not a huge shift in favor of authors. What about device manufacturers, users, and consumers? Complex interactions, during which computer software emerged. Not overbearing powerful interest groups running the show so much as carefully constructed balances that didn’t substantively favor content owners as much as we might think—no public performance right for sound recordings, because user groups—radio stations and cover artists—got the better of them. Likewise, the glass is half full for device manufacturers, libraries, scholars and teachers on fair use. Scientific publishers were able to block more generous photocopying rules. Jukebox manufacturers got a favorable rule on device royalties—a dying industry, which was part of their argument. 601: printers/organized labor got the manufacturing clause, though it sunsetted. And on cable, cable operators did pretty well. [This is pretty much Jessica Litman’s account in Digital Copyright, framed differently: interest groups that were organized and showed up got exceptions for themselves, but the “balance” was only for those groups; if they didn’t show up then their rights/interests weren’t considered.]

1976 Act was built for a gatekeeper/clearance ecosystem that was quickly disrupted by the Betamax and then the internet. Sometimes the system worked, sometimes not.

Jessica Litman, Michigan Law: Menell describes a continuous sequence of Copyright Office research and review, and then 9 years in Congress during which its proposal mostly survives. She sees more discontinuity. Office sought to do initial drafting relatively insulated from pressure from copyright bar and came up with what it believed would be wise; the © bar hated it and the Office pushed the restart button, encouraging negotiation between groups on the substance and in many instances the language of the revised proposal. The Office kept pretty good control of the drafting pen most of the time during the initial years, and the records of that process, including meetings hosted by LoC, are extremely useful for figuring out what the language was supposed to mean at the time.

Beyond academic interest, what does the intended meaning have to do with the meaning now? There are lots of reasons why that intended meaning might not be much help. Legislative history was seen in the 60s and 70s, and even 80s, as a crucial statutory interpretation tool, and now that’s not the case. Even ignoring that: Congress has made more than 70 amendments over the past 50 years; the crafters of those amendments paid little heed to what the earlier language meant/was intended to mean. And the malleable meaning of particular words is important: “copy” means something in 2026 than in 1966.

What we learn about original intended meaning of the words is of limited use if we’re trying to figure out what the statute means today. These explorations are useful especially for illustrating legislative process, and the history/structure of music, publishing, and consumer electronic businesses as well as teaching in schools and churches, but they don’t necessarily yield citable authority on what the statute “really” means.

Argument: the drafting process is hostile to outsiders who weren’t invited (sometimes b/c they didn’t exist yet). More recently interested in what happened among insiders and whether they got what they wanted. Assumptions about how the law and the world worked that didn’t necessarily hold: future-proofing did require assumptions. There were assumptions about how the parties would treat each other going forward; broken expectations can radically change the balance of what the insiders believed they were agreeing to do.

There were assumptions about law & world that didn’t prove out. They assumed the future would not be sharply distinct—didn’t anticipate breathtaking consolidation of entertainment industry; assumed that computers would continue to be niche devices used by scientists/students; didn’t anticipate consequences of networked computing. Even though they talked about the terrible danger of unlicensed personal uses, they figured they’d be a continuing annoyance rather than existential threat. Thus they didn’t have a statutory instruction on contributory infringement. One reason Sony came out the way it did was the prospect of making Sony pay statutory damages for every third-party infringement.

Unanticipated change in law: the definition of WFH and details of terminations of transfer were settled in April 1965 as the result of hard bargaining among book publishers, music publishers, songwriters, and author group. At the time, courts didn’t treat independent contractors’ works as WFH; creation of work was subject to implied agreement to transfer © to commissioning party. Didn’t need a signed writing b/c federal © had not yet attached on creation. Only significance was then that after the original 28 years applied, the creator could apply for renewal; but since most works weren’t renewed, this wasn’t all that important. The grand compromise on termination and WFH definition was negotiated against this background, adding categories of WFH made by independent contractors to definition. They insisted that any change by Congress would require renegotiation from the ground up, so very little changed.

But then the 9^th and 2^nd Circuit decided cases about independent contractors and found they should be WFH by confusing or conflating the line of cases holding that employers were the legal authors w/the line of cases holding that independent contractors implicitly agreed to copyright transfers. Implicitly, publishers promised that if authors gave initial period of exclusivity and waited and jumped through all the hoops they’d get their rights back. But the promises made in negotiations were never binding or enforceable—no legal authority to bind publishing companies years later. So if statutory language was susceptible of more than one interpretation, it’s hard to blame a publisher from exploiting that ambiguity. So they did! When served a termination notice, publishing companies asserted that they could keep collecting royalties for all previous versions of a song using the derivative works exception to termination. And the Supreme Court agreed. Publishers then argued, against proposed amendment, that the statute had created vested rights from the beginning that couldn’t constitutionally be taken.

It’s hard to think about moral enforceability when the individuals who need to keep the promises are different from the individuals who made the promises. In practice, an author who wants to exercise her termination rights has to jump through hoops and then be prepared to engage in litigation.

Other examples of broken promises exist. What’s the point? We can find out how various interests believed the statute would work, and compare that to our current world, but it’s hard to leverage our understanding of intended application to persuade courts to agree with it today given all the amendments and broken promises.

Useful process lessons: Even when it was new, the 76 Act looked better on paper than it turned out to work in the world. Latent assumptions/promises were weak points that could be and were exploited. Authors aren’t doing well: earning less and fewer choices than they once had. It may be that the late 1970s/early 1980s was a halcyon era, but things have changed. If we want authors to have a stronger hand to play, that’s a really difficult problem. EU takes this seriously and has made unsuccessful efforts in that direction; it’s definitely not a fix it and forget it problem.

The negotiations that gave rise to the revision bill were intense but respectful—trying together to build a workable © act even as they sought advantage. Hard to recognize that world now in the viper pit that is the current © bar.

It turns out to be really important who the Register is. True even though we don’t have much control over who that will be. Barbara Ringer: it’s important for the Register to be able to stand up to all the copyright lawyers for the various interests.

Jane Ginsburg, Columbia Law School

Influence of international law: American exceptionalism was the pre-history, but international norms pervaded the drafting of the 76 Act—Barbara Ringer was very proud of this—shifting from publisher to author as focus.

Universal Copyright Convention/formalities. We made our own international order allowing our 28 year initial term and formalities, but agreeing to reciprocal protection and restricting manufacturing clause so it didn’t preclude copyright for foreign authors’ works. Remaining outside Berne was annoying though.

Comparative law/duration/formalities. Each step made it easier to move toward compliance with the broader Berne regime. UCC revised: Registration, deposit, and domestic manufacturer were no longer required as long as the foreign proprietor complied w/a simplified notice requirement—a two-tier system allowed draconian formalities at home so long as foreign works had the easier system. But that’s unstable: why restrict domestic authors that way while the burden on foreign authors was much lighter? Rule of shorter term also created grumbling: foreign reciprocity was limited by our shorter term.

Misunderstanding about foreign law might have affected WFH status. Claim was that movie studios needed status of author to own all rights abroad. Assumed that foreign nations would accept this divestment of individuals; but France’s highest court spurned our characterization of film producers as authors and gave indefeasible rights to directors against colorization. s

Persistence of American exceptionalism: jukebox exemption; mechanical rights; moral rights; formalities; works made for hire.

Menell: how do we incorporate interests of people who weren’t in the room b/c their industries didn’t exist/how do we have a rule of law without a rule of interpretation? Judges who aren’t experts will struggle w/©.

Litman: in the 70s and 80s judges found legislative history useful. To the extent it wasn’t read by legislators voting, it’s a bit odd to consider it, but we now have a statute that very clearly wasn’t written by legislators—maybe that’s the result of delegation to the Office; doesn’t matter for this purpose. Judges today figure that their job is to look at the text and judicial decisions construing the text. That’s a rule of interpretation; she may not think it’s the wisest rule, but that’s up for debate.

Ginsburg: The rule was that you looked at legislative history when the statute was unclear; the statutory text was never irrelevant! Even aware of its corruptibility/process issues, the text isn’t always clear and judges need help; one place to find that help is the rich legislative history of the Act, possibly less corrupt than some others. But the legislative history of subsequent amendments might be a bit dodgy.

Menell: even strict textualists say that they interpret the statute as of the time the words were put into law, so understanding context remains important. Cox will cause more confusion, but that goes to how our democracy is evolving. Strict textualism is being used by judges who weren’t that sympathetic to the project in the first place.

Tyler Ochoa: © is not the best tool to make up for the near-complete lack of enforcement of antitrust law in the entertainment industry. What were the assumptions about competition and antitrust in the 70s?

Litman: we had many record labels, publishers, studios competing with each other. Blackmun was on the Court and antitrust was almost a constitutional imperative. That’s all changed, so the power dynamics aren’t what they expected.

Menell: network economic theory wasn’t yet developed. Concentration today has benefits to consumers through network effects that weren’t perceived at the time: Spotify is concentrated but has big benefits to consumers.

Litman (in response to Q): International compliance is an excuse. If we’d wanted harmonization, we’d have reduced the term of WFH rather than doing what we did.

Ginsburg: it’s true that the rule of the shorter term kept the 20 years from US authors in Europe, but Litman is right that our term for WFH (75 from publication) was already as long as the extended term in Europe. There were plausible int’l trade reasons for the extension, but zero copyright reasons.