Which Act Applies to What?

The Patry Copyright Blog: Given the three year statute of limitations bar, there are only two relevant omnibus Copyright Acts relevant in litigation arising under 17 U.S.C.: (1) the 1909 Act (as amended), and, the 1976 Act (as amended). The easiest approach to the question of which act to apply would be to simply apply the 1909 Act to all questions about works created between March 1909 and December 31, 1977 (when that act was in effect), and to apply the 1976 Act to all works created on or after January 1, 1978. But even this simple approach has problems: what about works created before January 1, 1978, but not published or registered? Those works were previously protected under state law. One couldn’t say, “OK, for these works, state law will continue to apply” because Section 301 preempts equivalent state law.

There are lots of other questions too: how about the compulsory licenses? Should the Section 111 cable compulsory license and the Section 115 mechanical compulsory license (to name two prominent ones enacted in 1976) apply only to works created on or after January 1, 1978? That would be extremely difficult to administer, certainly in the case on Section 111. Or, how about damages? Should the statutory damages in Section 504 – which are quite different from their 1909 Act predecessors – only apply to works created on or after January 1, 1978? That would be easy to administer, but it would not be what Congress intended. How about the display right, which was granted only in the 1976 Act, or the limited right of public performance granted to sound recordings in Section 106(6)?

How about work for hire and joint authorship, which again were different under the 1909 Act, or, formalities, like notice? How about divisibility? Lets say a work was…


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Published:
17.05.08
Category:
IP News