The revision of the Copyright Act in 1976 changed the way exclusive copyright existed and terminated. The 1976 act is now the primary basis of copyright law in the United States. Basic rights of copyright holders are codified, as well as the now oft employed "fair use" doctrine. Almost all new copyrights are subject to a term determined by the date of the holder's death, replacing the more convoluted renewal scheme of fixed initial and renewal terms in the previous code provision.
In section 102 of the Act, copyright protection is available for "original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device." The key change from the prior law is that works no longer have to be published to enjoy copyright protection, and one need not affix the copyright mark (the "circle C") to one's work to trigger federal protection. Previous controlling law condemned original works to the public domain if the notice of copyright was not properly included. The 1976 revision greatly expanded federal copyright protection, making state copyright laws all but moot.
The 1976 revision granted five (5) exclusive rights to copyright holders: the right to reproduce (copy), the right to create derivative works from the original, the right to commercialize the work, the right to perform the work publicly (if relevant), and the right to display the work publicly (if relevant). In 1995 the right to perform a sound recording by means of digital audio was added.
The doctrine of fair use was finally codified in the 1976 revision of the Copyright Act. Common law, which was well settled on fair use, was finally made black letter law. Section 106 denotes that the doctrine explicitly applies to any use of copyrighted work for news reporting, criticism, research, scholarship or teaching. Despite this definitive list, the fair use defense is not exclusively limited to just these activities. The Act provides a four prong factor test to determine whether fair use has occurred:
1) the purpose and character of the use (for instance, whether it is commercial or educational);
2) the nature of the copyrighted work (how creative is the work);
3) the amount and substantiality of the portion of the original work used; and,
4) the effect of the use upon the original work in the market (or potential market). Like copyright protection generally in 1976, the fair use defense was later extended to unpublished works as well.
