Copyhype

The Copyright Act of 1976 was enacted as Public Law 94-553 on October 19, 1976, signed by President Gerald Ford, which makes it fifty years old today. It has governed over an era of significant technological advances, including the rise of home video, satellite communications, digital content, the internet, and now artificial intelligence. And yet, other than the Digital Millennium Copyright Act (1998) and Music Modernization Act (2018), both of which introduced significant changes, along with numerous smaller amendments, the Act remains structurally and substantively the same as it was when it was drafted five decades ago.

Given these two points (the rapid technological advancements and static copyright law), it’s common to hear arguments that Congress has failed to foresee a particular technology, or that the Copyright Act does not address a particular new use. One might hear, for example, that new technologies render the Act out of date and fail to address how it should be applied.¹E.g., Sony Corp. v. Universal City Studios, 464 U.S. 417, 431 (1984) (“Sound policy, as well as history, supports our consistent deference to Congress when major technological innovations alter the market for copyrighted materials… In a case like this, in which Congress has not plainly marked our course, we must be circumspect in construing the scope of rights created by a legislative enactment which never contemplated such a calculus of interests.”); but see Sony, 464 U.S. at 457-458 (Blackmun, J., dissenting) (“It is no answer, of course, to refer to and stress, as the Court does, this Court’s ‘consistent deference to Congress’ whenever ‘major technological innovations’ appear… Indeed, it is fairly clear from the legislative history of the 1976 Act that Congress meant to change the old pattern and enact a statute that would cover new technologies, as well as old.”). Another is that copyright owners shouldn’t be entitled to new markets.²E.g., American Geophysical Union v. Texaco Inc., 60 F. 3d 913 (2d Cir. 1994) (rejecting argument that copyright owners are not entitled to licensing fees for photocopying). Or, if a new use can be analogized to an existing non-infringing use, then any infringement of an exclusive right should be excused or dismissed as a technicality.³E.g., Capitol Records, LLC v. ReDigi Inc., 910 F.3d 649 (2d Cir. 2018) (first sale doctrine does not excuse reproductions made by marketplace for third-party selling of digital music files). One hears all these arguments applied to generative AI.

But I think the design of the Copyright Act of 1976 rebuts these arguments. The Act was written with the intent that the exclusive rights remain resilient to technological advancements. Its drafters were aware they could not foresee all the new ways copyrighted works would be distributed, accessed, and otherwise exploited in the future, but they did endeavor to write an Act that would remain effective regardless of such changes in technology and markets. The capture of technological uses of works by the exclusive rights, even if such uses would arguably be noninfringing in the absence of the technological intermediary, is thus not an accident, but a central feature of the Act.

Copyright Revision in a Technological Age

Others have done a much better job in describing the copyright revision process, which began with a series of studies by the Copyright Office in 1955 and continued with two decades of legislative process.⁴See, e.g., William Patry, “The 1976 Act“, in Copyright Law and Practice (2000); Peter S. Menell, The Making of the Copyright Act of 1976: Part 1-Technology and Compromise, Berkeley Tech. L.J. (forthcoming 2026).

While there were may involved in the twenty-one year copyright revision effort, key players included Subcommittee No. 3 in the House Judiciary Committee, chaired by Wisconsin Representative Robert Kastenmeier, the U.S. Copyright Office (particularly Registers Abraham Kaminstein and Barbara Ringer),⁵The U.S. Copyright Office played a central role in crafting the 1976 Copyright Act. That role was not limited to study and analysis; the Office was floating proposals, presenting alternatives, convening stakeholders, and resolving political differences. and stakeholders representing many industries and interests.

Revision efforts occurred during a time of rapid technological advances in communications, recording, and information. These advances were front and center in the minds of all involved in the revision efforts. Their project was not just to revise the copyright law to address the many changes that occurred in the decades following the 1909 Act, but to draft one that would anticipate future changes so as not become immediately obsolete.

Few, if any, moments in the legislative history of the copyright revision did not begin with an observation about the innovations that had occurred since the act was last revised. This was the consistent refrain throughout the two decade process. It can be seen from the very first revision study from the Copyright Office in 1955, which observed,

[I]n the half century since 1909 far-reaching changes have occurred in the techniques and methods of reproducing and disseminating the various categories of literary, musical, dramatic, artistic, and other works that are the subject matter of copyright; new uses of such works and new industries for their dissemination have grown up; and the organization of the groups and industries that produce or utilize such works has undergone great changes.⁶Abe A. Goldman, Study No. 1: The History of U.S.A. Copyright Law Revision from 1901 to 1954, at iii, in Copyright Law Revision: Studies Prepared for the Subcommittee on Patents, Trademarks, and Copyrights of the Committee on the Judiciary, United States Senate, 86th Cong., 1st Sess. (1960).

That observation is echoed at the very end of the revision process, some twenty one years later in the House Report accompanying the final bill, which stated,

Since that time significant changes in technology have affected the operation of the copyright law. Motion pictures and sound recordings had just made their appearance in 1909, and radio and television were still in the early stages of their development. During the past half century a wide range of new techniques for capturing and communicating printed matter, visual images, and recorded sounds have come into use, and the increasing use of information storage and retrieval devices, communications satellites, and laser technology promises even greater changes in the near future. The technical advances have generated new industries and new methods for the reproduction and dissemination of copyrighted works, and the business relations between authors and users have evolved new patterns.⁷H.R. Rep. No. 94-1476 at 47 (1976).

Those involved did not just recognize the technological advances that had occurred since the 1909 act and were taking place during the revision process. They also looked ahead to speculate about technological changes yet to come, sometimes with remarkable prescience.

Consider for example Joseph A. McDonald, then president of the Copyright Society of the USA, who said in 1960,

In the not too distant future the user of a library, instead of consulting a card file and requesting books, will seat himself at an electronic desk and operate a scanning and selector system monitored in the glass top of the desk. On determining the desired source material these, too, may be brought up on the desk viewing screen for perusal as readily as though the pages of a conventional book were being turned and read. The impact on the publishing business of such a change is obvious.⁸Joseph A. McDonald, Technological Advances and Copyright, 8(1) Copyright Society of the U.S.A. 3, 4 (1960).

Or Register of Copyrights Abraham Kaminstein, speaking on behalf of the U.S. delegation during a 1967 IP conference in Stockholm,

It seems clear that the United States, and indeed every country in the world, is on the threshold of the computer age. We have already found that the demands of computers, or rather those who control computers, upon copyright works are enormous. It may seem far-fetched to you now, but I believe that we will realize all too soon that the computer will bring the most far-reaching changes in individual authorship and independent expression since the Renaissance.⁹Statement of the United States Delegation on the Berne Convention, 14 Bulletin of the Copyright Society of the U.S.A. 435, 438 (1967).

Congress’s intent to provide copyright owners with broad, technologically neutral exclusive rights that comprehensively encompass existing uses as well as unforeseen future uses and markets is manifested in the text and structure of the Copyright Act. The language used in Section 106 (and its accompanying definitions in Section 101) is broad and technologically-neutral. For example, it  provides that “the owner of copyright under this title has the exclusive right[] … to reproduce the copyrighted work in copies.” “Copies,” in turn, are defined as “material objects… in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” This language that broadly covers all means of reproduction is paired with a similarly broad standard for infringement which does not limit infringement to specific ends.

The reproduction right is supplemented by a right of public performance that was expanded by eliminating a “for profit” limitation and a newly created right of public display.

The elimination of the “for profit” limitation came out of a recognition that the technological impact of performances overwhelmed any distinction between commercial and noncommercial renditions of nondramatic literary and musical works. Without technology to amplify the reach of performances, noncommercial performances like, say, a teacher reading a book in a classroom or scientist presenting at a convention were negligible enough that copyright owners might tolerate an exception for them. But it was specifically the introduction of technology that changed the calculus. With broadcasting, performances of works could reach broad audiences and have a measurable impact on markets, regardless of whether the broadcaster is a for profit or nonprofit entity. Given this impact, Congress brought such uses into the control of copyright owners.

Concerns about the impact of technological developments on copyright owners’ ability to maintain the ability to exploit their works drove the introduction of an entirely new public display right under copyright law. The right evolved through recognition that technology would permit uses of works that would not fall within even a broadly written reproduction right.

The Committee report accompanying an earlier version of the 1976 Act articulated the rationale for the right, noting the increasing technological uses of works would not involve reproductions.

With the growing use of projection equipment, closed and open circuit television, and computers for displaying images of textual and graphic material to “audiences” or “readers,” this right is certain to assume great importance to copyright owners. A recognition of this potentiality is reflected in the proposal of book publishers and producers of audiovisual works which, in effect, would equate “display” with “reproduction” where the showing is “for use in lieu of a copy.” The committee is aware that in the future electronic images may take the place of printed copies in some situations, and has dealt with the problem by amendments in sections 109 and 110, and without mixing the separate concepts of “reproduction” and “display.” No provision of the bill would make a purely private display of a work a copyrighted infringement.”¹⁰H. R. Rep. No. 2237 at 55-56.

These exclusive rights are subject to limitations set out in the statute. In contrast to the broad, technologically neutral language defining the rights, the limitations are stated in narrow and specific terms. A number of them are tied to specific technology. ¹¹E.g., §§108(b), (c), and (f); §§110(1), (4), (5), and (7); and §§111(a)(1) and (a)(3). In general, and setting aside Section 107 for the moment, the narrowness and specificity of the exceptions and limitations in the 1976 Copyright Act demonstrate that Congress intended broad, stable rights balanced by limited exceptions. The multiple references to specific technologies in the limitations show that technology plays an important role in that balance. It is not an inert presence.

Technology Matters

Technology plays two roles in the copyright framework described above.

First, technological advancements create new markets and uses for copyrighted works. Demand and consumer preferences, responding to these advancements, shift over the course of copyright duration for any work.

Second, technology necessarily changes the calculus. The presence of technology drove the expansion of exclusive rights, and, correspondingly, limitations and exceptions were frequently drawn along technological lines. Although proponents of exceptions to exclusive rights often characterized technological uses as analogous to non-technological, noninfringing uses under the 1909 Act, such characterizations generally failed to persuade Congress. Congress was more persuaded by the view that reprographic and communicative technologies amplify the scale of a use of copyrighted works and are far more likely to substitute for purchase of physical copies. Human-scale uses that are non-profit or personal may justify an exception with little impact on copyright. But when technology enters the mix, the risk that similar types of uses could supplant markets for copyrighted works quickly exceeds any distinction between commercial and for-profit uses of works and nonprofit, educational, or private uses.

Congress thus viewed the intervention of technology into uses of copyrighted works as a core concern of the legal framework, not simply a technicality. It crafted a copyright law that would recognize future technological developments and was responsive to the fact that technological uses could harm copyright owners and undermine their incentives in ways that analogous non-technological uses couldn’t.

The statutory framework preserves for authors a measure of control over unforeseen uses of their works in a world of rapid technological advancements. Expected control over future commercialization opportunities can play an important role in encouraging initial creative or inventive investment. New works often give rise to complementary markets: new formats, distribution technologies, and other follow-on uses that typically develop only after the initial act of creation. Although there is uncertainty over whether there will be new opportunities to exploit a creative work once it is created, the ability to decide how and when to take advantage of such opportunities can create value, value which may be economically significant in some contexts.¹²On the flip side, copyright owners bear the risk that their work may lose value due to unforeseen changes in markets or demands. It would seem illogical to accept this point while denying copyright owners potential upside when unforeseen changes create value.

The ability of companies that invest in the production and distribution of copyrighted works (e.g., book publishers, record labels, film studios) to take advantage of new opportunities to exploit the copyrighted works they own also redounds to the goals of copyright. Companies that are organized around the production and dissemination of creative works are likely to reinvest additional revenues from new opportunities into production and dissemination of more creative works. And more, such companies play a productive role in broader creative, cultural, and knowledge fields, contributing to the development of people, practices, and institutions in those fields, which in turn contributes to the progress of the useful arts and sciences.