Commentary on Copyright Extension
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MOTION PICTURE FILMS AND COPYRIGHT EXTENSION
By John McDonough.
The United States Copyright law guarantees the eventual public domain status of all copyrighted works. Under this law, a copyright monopoly is granted to the originators of artistic and cultural endeavors, assuring them of a reasonable profit for their creative labor. The eventual public domain and access to these works is the payback in return for the effort and expense on the part of all tax paying citizens to provide this limited copyright protection to the works and their owners. This balance between copyright holders and the public is guaranteed by the United States constitution.
In the case of motion picture and television productions, the time of maximum commercial value is relatively short. It can be easily shown that there are very few commercial motion pictures made before 1930 which are still bringing in the windfall of huge revenues which make these industries so profitable. Even so, today there is a concentrated effort on the part of the holders of very old copyrights to extend this protection on these works-for-hire to an additional twenty years. What is the motivation on the part of the motion picture and television industry to extend this law, if the vast majority of these works have surely outlived their commercial value?
When our present copyright law was originally implemented, twenty-eight years was thought to be more than sufficient time for motion pictures whose highest profitability put them in the greatest need of copyright protection, with an additional twenty-eight years of renewal for any work whose earning ability proved to be of a longer duration. If renewal was not made for any reason, the works passed, as it rightly should according to the agreement, into the public domain.
But with a trickle of profit still possible from older motion pictures on television, and with home video sales and rentals now a reality, there emerged an incentive on the part of the holders of older copyrights about to expire, to extend this period of control and profitability. Most of these copyright owners had no part in the origination of these works, and were really not interested in their artistic or cultural value. They simply looked at these copyrights as an investment which was soon to run out. Fearful of losing any income and control, the owners of those copyrights sought to influence the government to change the law in order to withhold these works soon to pass into the public domain, by virtue of an additional blanket copyright extension.
So, bowing to this pressure from the motion picture industry, backed up by similar nudging from the music and entertainment industry, but without any real consent by or benefit to the public, legislation was passed in 1992 to automatically increase copyright protection without exception to a total of seventy five years for all registered works for hire regardless of their commercial value. So, in addition to protecting the windfall, we were now also required to protect the trickle! Public access to these works was now prevented by law, and the payback to the public in the form of an enriched public domain originally factored into this agreement was arbitrarily delayed.
Today, using these same arguments, there is a concentrated effort on the part of these copyright holders to extend this protection on works-for-hire for an additional twenty years, bringing copyright protection on all these works to a total of ninety- five years!
The economic benefit to the copyright holders for this extension notwithstanding, there seems to be very little, if any, corresponding benefit to the public interest by denying them access to these works for such a very long time. In fact, if this legislation were to pass, it would be highly detrimental to the public interest in general and to the public domain in particular.
Because of the physical impermanence of nitrate motion picture stock, resulting in the certain eventual decomposition of the original negative as well as surviving prints, this extension would go well beyond the storage capabilities of many of these works, denying all public access payback permanently, clearly cheating the public of its eventual use of these artistic works agreed to when our copyright law was originally implemented. This extension would actually prevent many motion pictures and video works from restoration, rendering copyright extension meaningless to both the copyright holder and the general public.
Even today's film stocks cannot be considered "permanent." Although long-term storage of motion pictures has improved over the years, problems with dye fading, film base shrinkage and decomposition are still with us. It is highly unlikely that any untransformed videotape production submitted for copyright under the proposed extension could possibly survive a ninety-five year protection limit even under the best storage conditions imaginable.
But there is still other reasons why this extension should be opposed. It involves the restriction and diminishment of the public domain at a precise point in time when technical advances and the increasing utilization of visual means of communication are greatly expanding not only in the entertainment industry but in the fields of business, education and commerce as well. All of these factors indicate a strong need that points to an expansion, not a reduction, of the public domain.
This is a time when there should be a loosening, not a tightening of copyright restrictions for educational and non-profit prime. Educators, for example should not have to put up with FBI infringement threats of fines and imprisonment, when the free utilization of minor and comparatively obscure non-public domain materials would help them do a better job of teaching in our already underfunded educational system. These efforts on the part of the motion picture industry to withhold the vast treasure trove of classic movies, documentaries and other works of historic importance from the late 1920's and early 30's which will soon enter the public domain, cannot be justified by the threat of losing the corresponding meager earning possibilities of a mere handful of works they want to maintain.
While Hollywood has the desire to legally tie up these works so they cannot compete in any way with the current products they want to commercially exploit, a permanent monopoly was not the intent or purpose of the copyright law, and is, in fact, an express contradiction of it.
There is a natural limitation of time that any human being can spend watching motion pictures and television, reading books, going to concerts and plays, or even attending sporting events. The more attractions competing for that limited time means less time available for any of them individually. Therefore, it is to the economic advantage of the motion picture industry to do all that it can to restrict the amount of entertainment options available for any of them individually. Therefore, it is to the economic advantage of the motion picture industry to do all that it can to restrict the amount of entertainment options available to the public. Instead of competing for that time in terms of quality, the industry is resorting to legally remove and restrict the bulk of this older material, some of it of great interest to historians and film enthusiasts, from public use. This is directly contrary to the intent of the copyright law, which is to benefit the public by having the maximum availability of artistic and cultural works for all to choose from.
To restrict the options of the motion picture goer is exactly the same as withholding symphonic works from the concert hall. It simply should not be permitted.
The idea that only works which have no value of any kind should be allowed tp pass into public domain is incompatible with the spirit and the letter of the United States copyright system, and would imply that all other works deserve copyright protection "forever". Imagine what this philosophy would do to our patent system!
However, in spite of the foregoing, proponents of such an extension should at least take responsibility at the time of registration or renewal for insuring the existence of these works in some realistically usable form beyond the copyright period. These provisions should be made part and parcel of any copyright registration or renewal agreement involving works which depend on material which decomposes and becomes valueless in a relatively short period of time.
Unlike copyrighted books, plays, paintings, records, CD's and tapes of musical works, whose availability is insured by virtue of being sold by the hundreds of thousands to the public in some form or other, the vast majority of motion pictures and videotapes presently under copyright exist only in single, tightly-held negatives or master tapes, subject to decomposition and neglect by their sometimes uncaring owners. These include countless numbers of abandoned and long-forgotten feature films, short subjects, non-theatrical business and educational films, documentaries, scientific and research footage, and many other works also covered by this law.
Many copyrights now on record with the Copyright Office include only a VHS home video or an almost obsolete three-quarter "U-Matic" video dub of the work as a deposit. These cheaply-made tape duplicates are very fragile and temporary, highly subject to technical malfunction, magnetic distortion and accidental erasure, and in no way represent a quality representation of the original master. It would indeed be a tragedy if future generations' appreciation of today's films would have to depend on the aging and by then probably unplayable VHS dubs now on deposit with the Copyright Office. However a DVD, or a digital video disc of all material submitted for registration or renewal could be considered a state-of-the-art permanent record with maximum life, requiring very little storage space, and a relatively low cost to produce.
To protect the public interest, all present and future copyright applications should have to include the deposit with the Office of Copyright of a certified master copy of the material to be copyrighted. Such a record submitted with a renewal would prove that the work under consideration actually still exists in some usable condition. It should not be allowed that unscrupulous copyright owners could be granted protection for works that have no known physical form whatsoever. This also would have a very beneficial effect for those concerned with the preservation and restoration of the motion picture as an art form.
The existence of certified master recordings of copyrighted works on deposit with the Office of Copyright would also prevent the copyright owners from quelling competition in the market place by willfully destroying a work about to pass into the public domain rather than making it available to the public without total control of its fate. Today, they very often actually do this with impunity.
Because so many of the copyrights on older and unavailable works are owned by corporations that have little, if any interest in preserving them other than financial, the passing of these works into the public domain would also create a motivation on the part of the film preservationists to unearth possible previously unknown copies of these works which could then be made available to those interested in them freely without the implied threat of copyright infringement. Because of the time limitations imposed by film decomposition, waiting to do this for an additional twenty years could have a devastating effect on our film heritage.
Instead of extending the copyright limit to motion pictures for an additional twenty years, it would be a much more equitable consideration on the part of the public interest to reduce the term of copyright protection on works-for-hire to a maximum of 70 years, with renewals to 90 years only in exceptional circumstances, with the deposit of a certified master copy of the work in question and a healthy renewal fee of at least $2,000 on feature-length works (which could then be donated to the Library of Congress for film preservation). Films considered to be worth less than that or simply just not worth the bother or concern by their copyright holders could then be allowed to pass into public domain rather than be inequitably and
expensively maintained in the copyright system.
This would put the United States in harmony with Europe's copyright laws, and would also foster the restoration of our country's cultural heritage of fragile and rapidly decomposing nitrate film archives from imminent destruction.
This not only seems fair to all concerned, but would also save the country vast amounts of money in storage, court and incarceration costs arising from infringement litigation, royalties, maintenance and registration fees, just to mention a small part of the financial burden to the public if the present copyright extension plan is carried out as presently designed. It would also allow untold thousands of abandoned and orphaned motion pictures and television programs to pass into the public domain where they rightfully belong, to be enjoyed and used by all our citizens in return for the millions of dollars they gave up to support copyright holders rights for so long.