Last Tuesday, I visited a friend in DC, who, like me, has been practicing copyright law for a long time (in my case 25 years). He was speaking warmly of the 1909 Act. I began practicing copyright a few years after the 1909 Act was repealed, but that Act still governs a number of questions for works first published while the 1909 Act was in effect, like whether a proper renewal was accomplished, whether a proper notice was affixed, and whether there has been compliance with the manufacturing clause. (The manufacturing clause was in effect until 1986). I have dealt with many cases involving these questions, so while not a “1909 Act copyright lawyer” in the sense of having practiced while it was in effect, I have had a lot of 1909 Act “cases,” and have also studied it extensively.
As my friend was speaking, I realized I shared his enthusiasm for the 1909 Act, and believe it not only was vastly superior to the 1976 Act (especially as the latter has been amended), but I further realized that the contrast between the two Acts brings to the fore my own professional transformation, as well as why I think there is so much hostility to copyright today. The objections to the 1909 Act centered around the harshness of its formalities and the obstacles those formalities (including duration conditioned on renewal) presented to the U.S. joining the Berne Convention. One may, however, view the 1909 Act’s formalities and its renewal structure as constituting that Act’s greatest strengths: it forced those who were genuinely interested in exploiting their works to take affirmative steps indicating their intent, the failure of which left the work free (in every sense) for others to use. In the vast majority of cases, this meant a term of protection of 28 years. For a small group of works, the maximum term was 56 years. The prevalence today of paeans to copyright as property and descriptions of those who use even small portions of copyrighted works without permission as thieves had no traction under the 1909 Act. (This is not to say they weren’t occasionally made, just that the Act itself stood as a refutation).
It would be one thing if the 1909 Act stood, empirically, as a bar to the creation or distribution of new works, but on what basis can it be said that fewer works of utility or greatness were created under the 1909 Act? Moreover, we know only too well the downside to the l1976 Act’s life of the author plus 70 years regime: works are protected well over a century, while a vast and ever growing body of orphan and torpedo works haunt those who in the best faith and with the most diligent efforts cannot track down the copyright owner or who if they locate them, cannot get a response. I experienced this problem myself in the last few months in seeking, at my publisher’s insistence, to get permission to use quotations in my new treatise. While some authors were very responsive and helpful, there were a large number I never heard back from, and some I did hear back from were uncertain whether they or their publisher had to give permission; and this was for recent works where it was simple to locate the parties. Try that for a work 80 years old.
But aren’t authors better off under the 1976 Act? Some, perhaps many, are. Works no longer fall into the public domain for failure to comply with formalities, while a term well beyond post mortem ensures that the author will be able to enjoy royalties for his or her full life and so will his her grandchildren if not great grandchildren (whom the author is unlikely to ever meet). But the principal reason the 1909 Act stayed with the concept of a renewal term rather than switching to a term of life of the author as had been proposed, was to give the author a second bite at the apple, to retain the renewal term and bargain for it later when its value in the marketplace would be known. That goal was frustrated by the Supreme Court in the Fred Fisher case, which led to authors having to assign away ab initio all rights to the first and the renewal term. When it was proposed for the 1976 Act that term be measured by life the author’s life, authors’ group noted that this would be detrimental to authors because there would be no ability to recapture. Publishers adamantly opposed a recapture right, proving once again that when publishers talk about looking out for authors it is best for authors (and the rest of us ) to hold on to our wallets tightly. A compromise was struck, namely the termination of transfer provision in Section 203, a provision so complicated that is of use to only a few authors, which was the idea, of course. And it is, of course, exactly the type of formality that publishers had decried in the 1909 Act.
In the end, those authors who have lump sum deals are no better off than they were under the 1909 Act, but publishers are much better off. And for those who create under a work for hire regime, arguably expanded under the 1976 Act, again it is only the juridical entity that benefits, while the rest of us lose from the switch to our extremely long term. I do not assert that corporations are second class copyright owners, only that after three quarters of a century, it is likely that the tie between the original corporate author and the fifth or tenth successor to that company is so attenuated that we can only describe the longer term as a windfall for the remote owners.
As for the international benefits from the 1976 Act, there none since we did not repeal the notice requirement until March 1, 1989 when we joined Berne. We had before then joined the Universal Copyright Convention and had relations with all of the most important trading partners. By joining Berne, by the 1994 GATT implementing legislation and the subsequent WIPO Treaties, and free trade agreements, we have committed the United States to a vast number of provisions, all of which make it impossible to return to the 1909 Act or anything like it. We have in other words forever given up our sovereignty in determining the content of our own copyright law. That couldn’t have happened under the 1909 Act, and is a tragedy of monumental proportions because it means that future Congress’s ability to enact laws that fit the perceived needs of the times is seriously circumscribed.
Tomorrow, whether the effect of the Long Tail mitigates some of this.