One List to Rule Them All (Preface)

This is the first in our series of posts marking the 50th anniversary of the Copyright Act of 1976. To find a list of all the posts in this series, click here.

And we’re off on our retrospective of the Copyright Act! Though it’s tempting to start at the beginning of Title 17, with Section 101, we’re going to start with the preface. 

Some laws are actually passed with a preface—text that is part of the law and explicitly indicates Congress’s findings and intentions (one example is § 2 of the Fair Labor Standards Act). The Copyright Act did not include such a preface. There is useful legislative history, such as the House Report that accompanied the bill, which is useful in informing interpretation of the law but which does not have the force of law. However, though there was no official preface to the Copyright Act, the U.S. Copyright Office publishes an updated version of Title 17 every year or so, and that edition includes a preface. Since that’s the reference edition I’ll be using when I write in this series, it seemed appropriate to start there.

What is there of interest to write about a preface? And an unofficial one at that?

Well, to start with, the Office’s preface contains a list of every amendment to Title 17 since the Copyright Act’s passage, and each entry includes citations, along with dates of enactment and brief descriptions of what was changed. A list such as this is easy to overlook as just a historical curiosity, and it certainly is a useful tool for historical research. But its value runs deeper than that—the historical record contained in this list is, in turn, a record of the actual law.

The United States Code is published, either in whole or in part, in many places. The official version is maintained by the U.S. House of Representatives, though there are several other print and electronic versions, such as Cornell University’s Legal Information Institute and specialized legal research databases (such as LexisNexis and Westlaw). But people are, well, human, and sometimes errors creep in. If different versions conflict, there needs to be one version of the law—a version of last resort, if you will—to resolve the differences.

For acts of Congress, the version of record is the United States Statutes at Large, which is maintained by the National Archives and Records Administration (shout out to you archivists out there!). The U.S. Code is assumed to be the correct text of the law, but the text of the laws as passed by Congress and signed by the president is the correct text. And the best evidence for what was passed is the Statutes at Large. Put another way, the U.S. Code is a secondary source—the Statutes at Large are the primary source.

Most of the time this is an unnecessary distinction—the U.S. Code is a very reliable source for federal law and differences between versions are exceedingly rare. But occasionally the distinction has proven important. One example was the case of United States National Bank of Oregon v. Independent Insurance Agents of America. In that case, the United States Code had been published with a note saying that a law enacted by Congress had been repealed, but the Statutes at Large indicated that the law had not been repealed! In a unanimous opinion, the Supreme Court held that the Statutes at Large prevailed when the two were in conflict.

And this is where the Copyright Office’s preface steps in. The list is an invaluable and painstaking bit of research in its own right. But more importantly, those 80 statutes in the list constitute the law itself, not merely its history. The text of the U.S. Code is far more useful almost every time, but sometimes you need to go to the source. When you do, this is your place.

Another point of interest in the preface is illustrated in the first paragraph:

This publication contains the text of Title 17 of the United States Code, including all amendments enacted by Congress through December 18, 2025. It includes the Copyright Act of 1976 and all subsequent amendments to copyright law; the Semiconductor Chip Protection Act of 1984, as amended; and the Vessel Hull Design Protection Act, as amended. The Copyright Office is responsible for registering intellectual property claims under all three. (emphasis added).

Note how the paragraph draws a distinction between “amendments to copyright law” and two other acts of Congress: the Semiconductor Chip Protection and Vessel Hull Design Protections Acts, which are codified in chapters 9 and 13, respectively. The preface implies that chapters 9 and 13 are not “amendments to copyright law,” despite being part of Title 17. That is not an oversight.

Title 17 is entitled, “Copyrights,” but that is a little misleading. The copyright law of the United States is contained in Title 17, but the two are not coextensive. In this example, as the preface suggests, chapters 9 and 13 are not strictly speaking “copyright” protections—they are in the “copyrights” title, but they aren’t copyright. They are known as sui generis (i.e., one of a kind, for a specific purpose) protections, and there are several in Title 17. Though it may seem like hairsplitting, the distinction is important for precision. 

But whether a chapter is a sui generis protection or part of copyright proper can be debated. In the preface, the Copyright Office appears to take the position that copyright excludes only Chapters 9 and 13—that everything else is “copyright law.” I think that may be an overbroad interpretation. At a minimum, we can all presumably agree that the first eight chapters—the original Copyright Act—are properly called “copyright.” But what about the other chapters? We’ll get to those later . . .

We haven’t even gotten to the very first section, yet, and already there’s uncertainty as to what even constitutes copyright. It turns out prefaces can be pretty interesting!