The 1976 Act Could Have Been Very Different

This is the latest 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. This post by guest author, Jonathan Band, is based on a presentation made on March 27, 2026, at the Texas A & M Law School Copyright Act @50 event. The author is grateful to Authors Alliance for its research on the provisions discussed in this post.

Copyright lawyers, whether they are practitioners or academics, treat the Copyright Act of 1976 as if it were a sacred text. To a certain extent, we do so because we have internalized the great deference federal courts generally show to all acts of Congress. The courts give acts of Congress a presumption of legitimacy. The courts assume Congress knew what it was doing when passed a law, and it is not the courts’ role to second guess Congress’s policy judgments or motivations or competence. Moreover, as the Supreme Court teaches, they must “give effect, if possible, to every clause and word of a statute.”

However, I believe that we revere the ‘76 Act even more highly than most statutes because of the process followed in the development of the Act. Starting in the mid-1950s, the Copyright Office produced more than 30 studies on various topics, either internally or by retaining outside experts. The Office then held roundtables, and issued a report in 1961. This was followed by draft legislation in 1963. The action then shifted to Congress, where legislation was introduced and hearings were held in 1964. The process continued in Congress intermittently until enactment in 1976. Thus, the ‘76 Act started with experts and the expert agency, and proceeded in an open and inclusive process. Barbara Ringer, who managed much of this process for the Copyright Office in several different positions, culminating in Register in 1973, is widely considered the architect of the Act, and is viewed as an extremely knowledgeable, dedicated, and fair public servant. 

At least, that’s the origin story of our sacred text. I don’t know how inclusive the process really was; I wasn’t there. Nor do I know if Barbara Ringer was as fair and balanced as everyone claims; I never met her. But she is treated in the literature as the Moses, or Muhammed or Joseph Smith of the ’76 Act.

In any event, given the sacred status we accord the ‘76 Act, there is a sense of inevitability around it, not only that it was inevitable that Congress would replace the 1909 Act with the ‘76 Act, but that it was inevitable that each of its provisions would come out the way they did. It is also infallible, and we in the Copyright priesthood parse every word and clause to find its underlying truths.

In fact, there was nothing inevitable or infallible about the provisions of the ‘76 Act. I’ll demonstrate this point by walking through three provisions of the Act that changed dramatically over the two-decade process: termination of transfer; fair use; and statutory damages.

I. Termination of Transfer of Rights

The treatment of the termination of an author’s transfer of rights evolved significantly during the development of the ’76 Act. The original proposal was far more author-centric than the provision Congress ultimately enacted. It would have made it far easier for authors to benefit from the appreciation in the value of their copyrights.

1961 Report of Register of Copyrights. Termination in the Register’s 1961 proposal was inalienable and automatic after 25 years. 

1963 Copyright Office Draft Legislation. The Copyright Office’s 1963 draft legislation contained a straightforward provision implementing its 1961 proposal: 

In the case of any work other than a work made for hire, a transfer by the author after the effective date of this act, otherwise than by will, of copyright or of any exclusive right under a copyright shall be effective for no more than twenty-five years from the date of its execution. Notwithstanding any agreement to the contrary, at the end of said twenty-five year period the right or rights transferred shall revert to the author or, if he is dead, to his legal representatives, legatees, or heirs at law.

Enactment. By the time it was enacted in 1976 as 17 U.S.C. § 203, the termination language became far more complicated with procedural hurdles.  The 1963 proposal was 93 words long; section 203 is 1093 words long. In addition, the ’76 Act contained an equally complex, 1,271 word section addressing pre-1978 transfers, section 304(c). For post-1978 transfers, the earliest the termination could occur was 35 years after the transfer, rather than 25 years in the 1963 draft. These changes neutralized the efficacy of the provision for authors, to the benefit of publishers and music labels. 

II. Fair Use

The treatment of fair use also evolved significantly during the development of the ’76 Act. The 1909 Act did not address fair use; it was entirely a judicial creation. Indeed, the Copyright Office considered the alternative of leaving fair use as a common law doctrine, before deciding to codify it.

1958 Latman study. The study Alan Latman conducted for the Copyright Office, considered the fair use case law, various treatments of fair use in the earlier bills which were to replace the 1909 Act, and how foreign countries handled exceptions, particularly the UK’s fair dealing provision. 

The study identified four options:

1) maintain statutory silence;

2) recognize the doctrine in broad terms but provide no clarification concerning criteria;

3) recognize the doctrine and specify criteria; or

4) adopt specific exceptions. 

Although the study did not express a preference, it concluded that option 3, recognizing the doctrine and specifying criteria, was the “boldest attempt to treat the problem” but the “approach is beset by practical obstacles.” Comments by other experts recommended either silence or general codification.

April 1961 Tentative Report of Register of Copyrights. The draft of the Copyright Register’s report in effect proposed option 2 above, codification of the doctrine in broad terms without specifying criteria.

The statute should include a provision affirming the general principle that fair use does not infringe the copyright owner’s rights.

July 1961 Final Report of Register of Copyrights. The Register’s final report recommended affirming the general principle of fair use as well as an indication of its “scope.” 

The statute should include a provision affirming and indicating the scope of the [general] principle that fair use does not infringe the copyright owner’s rights.

1963 Copyright Office Draft Legislation. The Copyright Office draft legislation went beyond proposal in the Register’s final report by including for the first time criteria for evaluating whether a use was a fair use: the four fair use factors. (According to Professors Mike Carroll and Peter Jaszi, it appears that Barbara Ringer herself drafted the four fair use factors.)  

FAIR USE IN GENERAL

The statute should include a provision affirming and indicating the scope of the principle that fair use does not infringe the copyright owner’s rights.

 § 6. LIMITATIONS ON EXCLUSIVE RIGHTS: FAIR USE.

All of the exclusive rights, specified in section 5 shall be limited by the privilege of making fair use of a copyrighted work. In determining whether, under the circumstances in any particular case, the use of a copyrighted work constitutes a fair use rather than an infringement of copyright, the following factors, among others, shall be considered: 

(a) the purpose and character of the use, 

(b) the nature of the copyrighted work, 

(c) the amount and substantiality of the material used in relation to the copyrighted work as a whole, and 

(d) the effect of the use upon the potential value of the copyrighted work.

1964 bill. The fair use provision in the identical bills introduced in the House and Senate in 1964 differed from the Copyright Office’s draft language primarily by the addition of the legitimate purposes in the “chapeau.”

6. Limitations on exclusive rights: fair use.

Notwithstanding the provisions of section 5, the fair use of a copyrighted work to the extent reasonably necessary or incidental to a legitimate purpose such as criticism, comment, news reporting, teaching, scholarship, or research is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use, the factors to be considered shall include:

(1) the purpose and character of the use;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

Enactment. The fair use provision evolved slightly between 1964 and enactment in 1976. The removal of the phrase “to the extent reasonably necessary or incidental to a legitimate” purpose  eliminated a potentially ambiguous requirement that the user might have difficulty meeting. The addition of “multiple copies for classroom use” as an example of an acceptable use for teaching was a helpful clarification, while the phrase “whether such use is of a commercial nature or is for nonprofit educational purposes” had a narrowing impact.   

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

From the perspective of 2026, it is amazing to think that the Copyright Office actually considered not codifying fair use, and indeed leaned in that direction in 1958. It is impossible to predict what would have become of fair use had it remained entirely a common-law doctrine. 

III. Statutory Damages

One of the Copyright Act’s most controversial features is the potentially draconian liability for statutory damages, particularly in cases involving a large number of works. The Copyright Office’s original proposal would have been much more moderate, allowing only one award of statutory damages for all works involved in a single action. 

1961 Report of Register of Copyrights. The 1909 Act contained a confusing statutory damages provision with a basic range of $250 to $5,000. The Register’s 1961 proposed authorizing the court to award statutory damages of between $250 and $10,000, as it deemed just, when the award of actual damages and defendant’s profits for all infringements would be between $250 and $10,000. In effect, this would allow the court to ratchet up the damages award when it felt the award for actual damages was insufficient, but the ceiling was $10,000. 

1963 Copyright Office Draft Legislation. In response to fierce lobbying from the copyright bar, the Copyright Office proposed a significant increase in the amount of statutory damages available: allowing statutory damages of up to $10,000 per work infringed (i.e., an award of up to $10,000 “for all infringements of a single work for which the infringer is liable”) as opposed to one award for all infringements of all works at issue in a single action. The court would award the copyright owner the larger of actual damages or statutory damages (up to $10,000). The Office proposed limiting the availability of statutory damages to works that were registered prior to infringement.

1964 Bill. This version allowed the court to increase the amount of statutory damages above $10,000 per work infringed in cases where the copyright owner proves that the infringement was committed willfully after service upon the infringer of a written notice to desist. The bill also clarified that the parts of a compilation or derivative work constitute one work.

1965 Bill. This version provided for the reduction of the minimum amount of statutory damages to $100 in cases of innocent infringement. It also placed a $20,000 maximum per work on the award of statutory damages in cases of willful infringement. 

1966 Bill. This version added a provision remitting statutory damages to libraries and educational institutions that reasonably believed that their infringing conduct was a fair use.

1969 Bill. This version increased the ceiling on statutory damages to $50,000 in cases of willful infringement. 

Enactment. No substantive changes were made to the statutory damages provision between 1969 and enactment. But the journey from 1961 to 1969 was significant. By providing an award of statutory damages on a per work infringed basis, with a substantial multiplier for willful infringement, the ’76 Act set the stage for the copyright wars between the technology and entertainment industries. Congress amended the range of damages twice (in 1988 and 1999) to its present normal range of $750 to $30,000 per work infringed, with a reduction to $200 for innocent infringement and an increase to $150,000 for willful infringement.

Conclusion

There was nothing inevitable about the 1976 Act—that it would pass when it did, and what its provisions would look like. And the text is not infallible. It represents the result of many individual amendments over a two-decade legislative journey. The changes concerning termination benefited publishers and other distributors at the expense of authors; the changes to statutory damages benefited copyright owners generally; and it is hard to predict the impact of a somewhat granular codification of fair use.