This article has been written by Ananya Singh pursuing the Diploma in Intellectual Property, Media and Entertainment Laws from LawSikho. This article has been edited by Aatima Bhatia (Associate, Lawsikho) and Smriti Katiyar (Associate, Lawsikho).

Introduction

In this article, I will trace the historical evolution of the term ‘copyright protection’ in the United States of America (USA/US) by looking into the timeline of events that led to the current term of copyright protection, that is, life of the author plus another 70 years, as a standard rule for works created after 1 January 1978. I will also discuss two landmark cases that had a major impact on the term of copyright protection as we know today. The US copyright laws have different terms of protection for various kinds of copyright works and depend on varying factors, such as, if the work is published before 1978. More information on the same can be found here. However, for the purposes of this article, I will solely discuss the term of copyright protection granted to Authors. 

The US term of protection : a timeline

The USA until 1976 had protection for a limited number of years entirely unrelated to the author’s life. However, all that changed. Now, the copyright term is entirely tied to the lifetime of the author plus 70 years (post mortem auctoris). What led to this gradual evolution is intricately rooted in the various internal and external factors. The timeline of the same is detailed as follows. 

The Copyright Act of 1790

The copyright provision for the first time was enacted in the year 1790 via the Copyright Act of 1790 (1790 Act).  It was brought about with the objective of encouraging learning by “by Securing the Copies of Maps, Charts, and Books to the Authors and Proprietors of Such Copies, was modelled on the Statute of Anne (1710).” The 1790 Act granted American authors copyright protection for 14 years and a renewal term of another fourteen years to print, re-print and/or publish their work. The reason for limited years of protection was to limit monopoly and promote creativity and advancement in science and useful arts by providing easier access to works  in the public domain. The 1790 Act was further revised in 1831,18070,1909 and 1976, respectively. 

The Copyright Act of 1790 : revision in 1831

During the revision of the 1790 Act in the year 1831, the term of copyright protection was extended to 28 years with an extension period of 14 years. This change was primarily brought in by the Congress to  provide the American authors the same protection as available in Europe at the time. The extension of 14 years applied to future works as well as current works in which copyright subsisted. 

The Copyright Act of 1790 : revision in 1909

Another major revision to the US Copyright Act (the Act) was made in 1909. The revision was made to further broaden the scope of copyright protection term to 28 years as well as grant  a renewal period of another 28 years along with  including other categories of works for copyright protection. This revision was claimed to have been made to balance the public interest vis-à-vis proprietor’s rights. The following extract has been produced to provide an insight into  the objective behind 1909 revision:

“The main object to be desired in expanding copyright protection accorded to music has been to give the composer an adequate return for the value of his composition, and it has been a serious and difficult task to combine the protection of the composer with the protection of the public, and to so frame an act that it would accomplish the double purpose of securing to the composer an adequate return for all use made of his composition and at the same time prevent the formation of oppressive monopolies, which might be founded upon the very rights granted to the composer for the purpose of protecting his interests.”

The Copyright Act of 1790 : revision in 1976

Another major event that led to the eventual change in the terms of copyright protection in 1886 occurred during  the Berne Convention. Then came the conclusive and final revision of the Act in 1976 (1976 Act). There were primarily two reasons behind this revision: (i) Due to various technological advancements, it became vital to include works that can be copyrighted and the ways through which these works are infringed, and (ii) in order to adhere with the anticipated Convention. The U.S.A became a signatory to the Berne Convention in 1988.

The 1976 Act, in its application, made all preceding copyright laws unenforceable and extended the term of copyright protection to the lifetime of the author plus another 50 years. Through the 1976 Act, the work for hire was also protected for 75 years. The 50 years term following the author’s death was adopted by Berne Convention in its 1948 revision, thereby making it the norm for many countries around the world. Later, GATT/TRIP Agreement decreed 50-year post mortem auctoris to be a minimum term of copyright protection for all the signatory countries at the World Trade Organization.

Apart from the term of protection other areas which the 1976 Act covered through this revision were: “scope and subject matter of works covered, exclusive rights…copyright notice and copyright registration, copyright infringement, fair use and defences and remedies to infringement. With this revision, for the first time the fair use and first sale doctrines were codified, and copyright was extended to unpublished works.” In addition to this, Section 108 was enacted to permit library photocopying under certain circumstances.

1998 enactment of Sonny Bono Copyright Term Extension Act

The Enactment of the Copyright Term Extension Act (CTEA) was preceded by the European Community’s (EC) Directive that required copyright protection for  70 years following the author’s death. The Directive further stated that works not authored by an EC national should not have more protection than what their home country or their country of origin was provided with  by the EU member states. 

The EU Directive meant that the US copyright work would be protected for life plus 50 years as established by the 1976 Act by EU member states. Due to this development, on October 7, 1998,the 105th congress of the USA passed the Copyright Term Extension Act (CTEA) at its second session. The CTEA extended the earlier copyright protection of life of the author to   50 years, extending up to the  lifetime of the author plus another 70 years. An exception permitted “permits libraries, archives, and non-profit educational institutions to treat copyrighted works in their last 20 years of protection as if they were in the public domain for non-commercial purposes, under certain limited conditions.”

The CTEA made US copyright laws sync with that of the European Union in the same way the 1976 Act synced with the 50 years term of copyright protection by the Berne Convention to which the US became a signatory in 1988. 

The 2003 landmark case of Eldred v. Ashcroft

Eldred v. Ashcroft, challenged the constitutional validity of the CTEA due to its retrospective effect on previous copyright laws, thereby giving Congress the ability to change the term of protection infinite times, which, by extension, would make the term of copyright protection indefinite and infinite. On 15 January 2003, the US Supreme Court, in this case, rejected the plaintiff’s contention that “repeated retroactive copyright term extensions would be in violation of intent of the Constitution’s Copyright Clause ‘for limited Times’ term.” 

The 2012 landmark case of Golan v. Holder

In Golan v. Holder, 565 US 302 (2012), the plaintiff challenged the 1994 law implemented through the Uruguay Round Agreement, giving non-American copyright owners copyright protection under US law for the remaining period of copyright protection in their home country. In other words, if the term of protection in foreign copyright owners in their home country is 100 years, they will have the same protection in the USA. The US Supreme Court ruled in favour of Congress wherein it was upheld that Congress has the power to restore copyright protection in works that are in the public domain. This law benefited works not protected by the US copyright law, leading to a colossal quantity of works withdrawn from the public domain.

The current term and renewal of copyright 

As mentioned earlier, as a standard rule, the current term of copyright protection is the life of the author plus another 70 years after the death of the author, for works created after January 1, 1978. If the work is created under joint authorship with two or multiple authors then the term is the lifetime of the last surviving author plus 70 years. “For works made for hire and anonymous or pseudonymous works, the duration of copyright is 95 years from publication or 120 years from creation, whichever is shorter.”

Copyright in works created after January 1, 1978, does not require renewal. As for works created before January 1, 1978, the renewal requirement is optional after 28 years of the work coming into existence. It goes without saying that getting a renewal is always advantageous for the copyright owner. At the end of the initial term, that is, 28 years, the copyright can be renewed for  another 67 years, thereby granting a total protection of up to 95 years. All in all, the renewal term for copyright protection for works created prior to 1978 was upgraded from 14 to 28 to 47 to 67 years. 

Conclusion 

During the 20th century, the term of copyright protection in the US gradually increased from being fixed for 14 years plus another14-year renewal period to the author’s lifetime plus an additional 70 years. The change was witnessed due to various internal and external factors at play, be it Berne Convention or EU Directive, advancement in technology, need for innovation and preservation of creativity, or the encouragement of all these factors. The historical evolution of the term of copyright protection did prove beneficial to the  US in the long run.


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