Opposing Copyright Extension

Commentary on Copyright Extension


by Dennis S. Karjala

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Dennis S. Karjala

Guest Column, Arizona Republic Op-Ed Page, September 1, 1998]
(reprinted in the Cleveland Plain Dealer, the Honolulu Star Bulletin, and elsewhere)

     Lost in all the talk about "welfare reform" is a corporate welfare bill that, if adopted, will result in a wealth transfer of millions of dollars from the pockets of ordinary Americans into the hands of large corporations and descendants of creative authors from the distant past.

     A bill has actually passed the House or Representatives and is being held up in the Senate only because other special interests are using it as a tool to try to enlarge their own slice of the copyright pie.

     A copyright in a pre-1978 work of authorship lasts for 75 years, which is also the term for current works by corporate authors.  (The copyright on current works by individual authors continues for 50 years after the authors' death.)

     The pending bills would add 20 years to the term of copyright protection for all works-- not just those created today or in the future but even those already in existence.   This would include books, music, and films from the 1920's of great historical and cultural significance that otherwise are about to enter the public domain.

     Schools that wish to publicly perform plays and music, archivists who wish to restore lost or forgotten works, scholars and creative artists who wish to use these cultural building blocks in creating new works, and the U.S. public in general through its royalty payments will foot a very heavy bill.

     New creativity will suffer.  For example, the entrance of Frances Hodgson Burnett's The Secret Garden into the public domain resulted in an explosion of new book, film, and stage versions.  The recent spate of films based on works from such  authors as Jane Austen, Thomas Hardy, and William Shakespeare shows the value of the public domain.  If term extension passes, no new works will be subject to this kind of creative adaptation for a full 20 years.

     And, of course, we can expect these same copyright owners to return to Congress in 20 years seeking yet another extension—unconstitutional perpetual copyright on the installment plan.  Under the prior statute, the last of George Gershwin's songs would have gone into the public domain in 1993, but the copyright term was extended by 19 years in 1976.  The Gershwin family trust will collect millions of dollars during those extra 19 years that George Gershwin himself had no idea he would be entitled to (if he thought about copyright at all!).

     Still, the nephews running the trust  are among the strongest lobbyists for another extension.  If they inherited any of Gershwin's talent, wouldn't we all be better off if they used it to write new songs?  And if they lack that talent, why shouldn't they have to work for a living like the rest of us?

     Disney, another bill supporter and itself a major user of the public domain in its own productions (Snow White, The Little Mermaid, Mulan, to name only a few), is having apoplexy at the thought that the copyright on Mickey Mouse is due to expire in 2004.  So, as far as this multibillion dollar corporation is concerned, you can explain to your children that they must wait until 2024 to paint this American cultural icon on the walls of their day care centers without paying royalties.

     When a popular book goes into the public domain, new publishers almost immediately come out with a wide range of versions of differing production qualities and prices, giving the public more choice at a lower price.  When popular and well known plays and musicals go into the public domain, schools, churches and community theaters can stage them without worrying about what if often a prohibitively high royalty payment.

     Prior to 1988, for example, small community and youth orchestras had to pay $540 for the right to perform Ravel's Mother Goose Suite for just two public performances.  Now that it is in the public domain, they can buy the sheet music for $70 and, of course, perform it as often as they like.  The savings no longer go into the pockets of Ravel's distant heirs but can be used to pay the musicians more, to reduce ticket prices to the public, or to pay for more recent works not yet in the public domain, thereby increasing the variety the orchestra is able to offer the public.

     Excessive copyright terms hurt the general public but feather the nests of copyright interest groups.  Librarians, educators, and consumer advocates are worn out with the continuous assault on the public domain. As Congress moves toward taking this big bite out of the public domain, the territory lies virtually undefended.

     It will eventually pass unless a true public interest spirit is instilled in enough voices to make Congress listen.  Arizona's Senator Jon Kyl is a member of the Senate Judiciary Committee, which oversees copyright legislation in the Senate.  He is therefore in a position to help stop this ill-advised legislation.

     Senator Kyl wisely voted in the public interest and against term extension when the bill came before the Committee 2 years ago.  He should be encouraged to maintain, and indeed intensify, his opposition to taxing the public for the benefit of special interests.