Opposing Copyright Extension

Commentary on Copyright Extension

  Statement of Timothy Phillips in Opposition to Copyright Term Extension

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See also Mr. Phillips' brief The Unconstitutionality of the Copyright Term Extension Act of 1998.

Statement of Timothy R. Phillips, a physicist interested in music as author, singer, and instrumentalist, in opposition to proposals to extend the term of copyright provided by the copyright laws of the United States.  Mr. Phillips can be reached by email at hrothgar@telepath.com.

Abstract: Several bills being considered by the 105th Congress would extend the term of currently-subsisting and subsequently-granted copyrights by twenty years. These proposals, if enacted, would not be in the public interest. They would deviate from the traditional principles of U.S. copyright law in a spurious property-rights direction. They would make a mockery of the "limited times" clause of the Constitution. They would provide no encouragement to the arts. They would make the public domain of the arts and literature less truly public in practice. They would enrich a few moneyed interests at the public's expense.


Copyright as traditionally practiced in the United States is a bargain between an author and the public. The author agrees to make a creative work available to the public. In exchange, the public, by means of the law, grants the author a limited monopoly over the replication of copies of the work. This allows the author a chance (though not a guarantee) to recover the value of time and money invested in the work while still making the work widely available--rather than, say, offering it privately to a few individuals on a subscription-and-contract basis. This bargain comes into effect immediately when the author fixes a work on some tangible medium. The author receives a temporary monopoly privilege allowing a certain measure of control over the uses of the work. The author may excersise this privilege or not, but in either case has agreed that the work will in the end become part of the common artistic heritage, subject only to the conditions of the market in the arts: a free market, without monopolistic distortions.

This common intellectual heritage is known as the public domain. Its importance in American cultural life is immense, yet easily overlooked because it is so taken for granted. A familiar example of the public domain's pervasiveness can be taken from the realm of religious music. Most hymnbooks published in the United States in the past 200 years have relied on the public domain for part of their contents. Public domain hymns (words and music), public domain music fitted with new words, public domain words set to new music, and public domain words and music revised and combined in new ways²all these are familiar to students of American hymnody. Progress in hymnody is clearly promoted by the continued turnover of words and music from copyright to public domain status, since works with this status can be reprinted and modified freely.

In recent years, however, the public domain has come increasingly under attack. A series of 1-year copyright term extensions beginning in the 1960s interrupted the turnover process. The 1976 copyright law, which became effective in 1978, extended all copyrights in their renewal term for 19 years, and made all copyrights in their first term eligible for a 47-year renewal term. Simultaneously with these developments, the publishing industries have continued to assert spurious copyrights by placing exaggerated copyright notices on public-domain or partially public-domain works [1-2]. All these have had the effect of eroding the public domain by making it less accessible. Then in recent years, some works have actually been removed from the public domain by legislation implementing the General Agreement on Tariffs and Trade (GATT) in domestic law. And now Congress, at the urging of the film and music industries, is proposing to extend the term of copyright by a further 20 years.

This paper discusses the American philosophy of copyright and the importance of the public domain in American cultural life, and explains why extension of the term of copyright would be destructive to that life. It discusses various arguments on behalf of the term extension and shows how they are erroneous.

1. Limited copyright vs. the monopolists

Copyright under American law is a kind of bargain between an author, on the one hand, and the public, on the other. The author agrees to give a work to the public, to "publish" it. The public, on its part, agrees to refrain for a limited time from exercising its full rights in the work. This bargain takes the form of limited monopoly privileges granted to the author by statute. The most fundamental of these privileges are the exclusive privilege of replicating the work, the "copyright," and the exclusive privilege of revising and annotating the work. Over the years a number of other privileges have been added in the various revisions of U.S. copyright law.

From the demise of the Stationers' monopoly in 1694, however, the stationers, and other would- be monopolists since, have repeatedly tried to recapture a perpetual property right in written works such as they had enjoyed under the old Stationers' monopoly. The Statute of Anne (1710) was insufficient from their point of view, since it strictly limited the term of copyright. Hence they attempted to assert that an author enjoyed a perpetual copyright under common law. This point of view prevailed in England in the case of Millar v. Taylor (1769), but the decision was reversed four years later in the case of Donaldson v. Becket (1774), when the House of Lords by 22 votes to 11, dissolved an injunction which had been awarded by the Lord Chancellor on the precedent of Millar v. Taylor. [3,4] In Scotland, the question was put to the Scottish Court of Session in the case of Hinton v. Donaldson (1773)[3, 3*]. The Scottish court ruled that copyright did not exist in the common law of Scotland. For the United States the issue arose in the case of Wheaton v. Peters (1834), in which the Circuit Court, and later the Supreme Court, ruled (thought not without dissent) that no common-law copyright existed other than the right of first publication, and that to qualify for statutory copyright an author was required to comply with all formalities laid down in the statute. Abrams [3] describes the subsequent impact of this decision:

In Wheaton, the Supreme Court set the basic assumptions for the continuing development of copyright doctrine in the United States: copyright is strictly a creature of statute and is not a common law property right or natural right of the author. The federal copyright system was seen as a purely statutory scheme to regulate and balance the interests of the public in quick and inexpensive access to intellectual works with the need to provide authors and the copyright industries with adequate incentive to produce and disseminate such works. While protection of the author was a matter of concern, it was clearliy subordinated to the overriding interest of the public and the public domain.

The concept of copyright which was rejected by the Court in Wheaton v. Peters continues firmly to be held and asserted by many monopolists. The petulant witness testifying before the Senate Judiciary committee in 1995 about how the expiration of copyright deprives him of his private property argues in terms little different from those used in the dissent at Wheaton v. Peters. Since Congress is constitutionally prevented from passing a law providing for perpetual copyright, the monopolists must settle for making the term of copyright as long as possible. However, as will be discussed in section 3 below, if the term of copyright becomes long enough, copyright in some works will be perpetual in fact, even while remaining limited in theory.

2. The public domain.

The enemies of limited copyright often vilify and despise the public domain. Irwin Karp, during the debate over the Copyright Act of 1976, stated that

Similarly Alan Menken heaped scorn on the public domain during hearings in the 104th Congress on copyright extension:

These statements presuppose that "consumers" are the only possible beneficiaries of the public domain; that if works incorporating the public domain are not available at consistently lower retail prices than entirely new works, the public receives no benefit whatever from the public domain; and that descendants of creative writers have no interest, absent monopoly protection, in maintaining an archive of their ancestors' writings and papers. All these presuppositions are can be shown to be false.

If the public is considered to consist of producers and consumers, the benefits given by the public domain are the benefits of economy and freedom. Under the heading of "economy" are included lower costs to producers which in some circumstances are passed on to consumers. Under the heading of "freedom" are included greater flexibility for producers, and a wider range of choices for consumers. These benefits to producers are described by Krasilovsky and Shemel in their discussion of the public domain (italics mine):

The economic advantage to consumers can be illustrated by means of Alan Menken's own examples. On March 14, 1998, at Border's Books and Music in Norman, Oklahoma, six different editions of Moby Dick were available. Three were paperback editions priced at $3.95 (Bantam), $11.95 (Penguin), and $15.00 (Vintage). The last two of these contain the Northwestern University Press/Newberry Library version of the text, to which Northwestern University Press and the Newberry Library assert a 1988 copyright, according to indications in the Penguin and Vintage Editions. The hardback editions were priced at $18.00 (Modern Library 1998), $18.90 (Modern Library 1992, with illustrations by Rockwell Kent), and $31.50 (Library of America.) The Library of America edition, however, contained three novels by Melville: Redburn, White-Jacket, and Moby Dick. John Grisham's novel The Chamber was available for $7.50 in paperback, and for $22.95 in hardback. Alan Menken's analysis is therefore seen to be tendentious. Both the paperback and the hardback edition of The Chamber cost more, on that day in that place, than at least one of the editions of Moby Dick available in the same kind of binding. Furthermore, the higher priced hardback containing Moby Dick also contained two other novels by Herman Melville. The unit price per novel was less than $11.00. The higher priced paperbacks, for their part, contained scholarly apparatus (introduction, notes, maps) which The Chamber may never be considered worthy of. The consumer's choices in this case included both lower prices and additional matter.

Alan Mencken's example of the musical CD market is just as tendentious as his analysis of the book trade. In the same Border's Books and Music, on the same day previously mentioned, Garth Brooks' No Fences (1990, Capitol Nashville CDP 7 93866 2) was available for $15.99 (not $13.99.) It contained 10 songs and about 35 minutes of music. Mozart's Requiem in D minor, K 626, was available on fifteen different CD's ranging in price from $7.99 to $17.99. The recording of the Boston Baroque (1995, Telarc CD-80410) cost $14.99 (not $15.99). None of the CDs containing K 626 contained less than 50 minutes of music. One CD, Philips 438 810-2, apparently a budget reprint, contained over two hours of Mozart's music for $15.99. Furthermore, the sheet music to the entire Requiem K 626 was available at the same bookstore in a Dover edition selling for $8.95. I found the sheet music for only one of the songs on No Fences, "Friends in Low Places," in a collection called The Definitive Country Collection (Hal Leonard, 1992) selling for $27.95. Not only were some of the recordings of Mozart's Requiem less expensive than No Fences, but both recorded and printed editions of the Requiem could be acquired together from a single retailer for less than $30.00. This convenient and inexpensive one-stop shopping was apparently not available for the entire musical contents of No Fences, at least not at this particular bookseller's.

Possibly Alan Mencken could find examples that better support his assertion that the lower costs to the producer using the public domain are not passed on to the consumer. But in making this assertion, Mencken is admitting that those lowered costs exist. This leads to several observations. First, the producers who use the public domain to raise their profit margins or lower their costs are as much part of the public as consumers are. Hence the thesis that no member of the public gets any benefit whatever from the public domain is refuted out of Mencken's own mouth. Secondly, even if the total amount paid by consumers to the book, music, and film industries were the same regardless of copyright, the question of distribution remains. A longer term of copyright means that the total is concentrated in the hands of the monopolists. A shorter term means that the total is more widely distributed among free competitors. Finally, in those markets where the public domain provides a viable, competitive alternative to copyrighted matter (e.g. folk music, advertising), it is possible that the public domain provides a downward pressure on the price of all works in that market.

The freedom that the public domain provides consumers is a direct result of the freedom it provides producers. The examples chosen by Alan Mencken illustrate this benefit just as they illustrate the price-benefit. The purchaser of Mozart's Requiem had a choice of soloists, orchestras, conductors, even versions: the Boston Baroque recording featured a new completion by Robet Levin in place of the old completion by Mozart's student Sussmayer. Any particular song on No Fences may, of course, be widely recorded. But this is not because of the copyright privilege. The compulsory licensing mechanism provides a check on the monopoly power of the rightsholder: To the extent that recordings of any one song on No Fences is widely available, it is largely in spite of copyright, not because of it. And to the extent that No Fences is a single work, a single suite of songs selected for their relation to one another and to the title of the album, the consumer has only one choice: Garth Brooks' No Fences, or no one's.

But in fact, the public does not divide neatly into "producers" and "consumers". Many of us are both, though probably few of us spend much time thinking of ourselves in such terms. Our workaday activities overlap with those of the book, music, and film trades in many ways. Most of the time these activities are not reduced to "production" or "consumption:" they are simply "life." And in the course of this life the public domain's benefits of reduced cost and freedom have great importance.

Some of the clearest examples of the public domain's benefits to individuals can be found in the realm of religious music. As mentioned in the introduction, many of the hymnbooks published in the United States contain a mixture of copyright-protected and public domain material. The public domain material can be used freely for almost any purpose [7*]. Leaflet inserts of protected music cannot ordinarily be printed without permission and (in some cases) payment of license fees. Leaflet inserts of public domain music may be printed freely. Similarly, though tape-recording a worship-service for the congregation's shut-ins should constitute a fair use, it might not. A small congregation, under pressure from the collection syndicates to pay license fees, uncertain whether license fees are truly necessary, and unable to afford legal counsel, at least has the safe harbor of the public domain. If the proportion of public-domain music in the congregation's hymnbook and its choir's repertoire is large enough, the services which are to be tape-recorded can easily be planned without diminshing the congregation's musical life. Furthermore, public domain music can be freely arranged and adapted. A talented arranger, beginning with public domain words and music, can create new hymns and anthems for the congregation and its choir without the need for complicated legal and financial transactions. Finally, for a congregation to record its choir and raise money by selling copies of the recording to its members would probably not constitute a fair use under copyright law. Some congregations might be able to afford clearance and license fees. But all congregations can avoid expense and inconvenience of copyright clearance by recording music in the public domain. Here again, from the public domain the congregation reaps the benefit of lowered costs and greater freedom.

The case of amateur and semi-professional performers provides another example of the public domain's importance in the nation's musical life. A performer just starting a career, playing in the bookstores and clubs, often relies on the public domain for building repertoire. These same performers also gain experience at songwriting by adapting and arranging public domain material. Possibly thousands of performances of traditional songs like "Shenendoah," "Old Chisholm Trail," "The Cherry Tree Carol," and other public-domain works occur across the country every year without ever showing up on the music industry's balance-sheets. Performances of public-domain music can be scheduled in complete freedom from copyright concerns. And in my experience, performances of traditional material are often given to the public free of charge. Everyone gains from such presentations: The listeners gain free music, the budding singer/songwriter gains experience and an audience, and the bookstore or coffee shop gains customers. Irwin Karp's contemptuous dismissal of the public domain, quoted above, fails to take transactions like these into account.

Not only individual performers, but amateur and semi-professional ensembles also benefit from the public domain. Rates for rental of classical orchestral scores can be quite high. Before January 1 1997, when Gustav Holst's The Planets was still under copyright, the score could be rented for $815 for two performances. Now that The Planets is in the public domain, the score can be purchased for $300, which single price allows unlimited copying and unlimited performances. Before Prokofyev's Peter and the Wolf was restored to copyright by the GATT, the score sold for $70.00. Now that Peter and the Wolf is under copyright, the price has gone up to $600.00 rental fee for two performances [8].

The public domain can be equally valuable to arts other than music. Possibilities are many. An illustrator, for example, can provide new illustrations for a public domain children's classic. Or public-domain graphics that have caught a writer's fancy might inspire the creation of a new story to go with them. Small and medium-sized publishers might raise revenue by reprinting public domain works that the big houses have no interest in. Small, independent filmmakers can find numerous creative uses for public-domain film footage.

All these uses of the public domain may have little value in international trade. But their value to those who use them--makers and enjoyers of independent films, small presses and their customers, folk musicians, community orchestras, and worshippers--cannot be measured only in money.

Finally, Alan Mencken's assertion that the archives maintained by the estates of successful composers will be put out of business once copyright expires insults the very heirs on whose behalf Alan Mencken claims to speak. Do the Gershwin heirs think of George and Ira Gershwin merely as cash cows? Does the Gershwin memory mean so little to them that they will take no trouble to preserve it except a fast buck be in it for them?

But though at least some of the Gershwins' heirs would probably do their best to see to the preservation of the Gershwin archives purely for love, this will not be necessary. Not one letter, not one manuscript, not one scrap of paper in the Gershwin family's possesion will sprout legs and walk away when the copyright on "Rhapsody in Blue" expires. Perhaps most importantly, the trust will still posess the Gershwin name, which would be hard for any competing archive (unless the heirs quarrel among themselves) to claim. On the other hand, if the Gershwin archive is so inefficiently managed that it cannot find new sources of income as its old sources dry up, then perhaps it is just as well if it should go out of business.

3. Return of the Stationers' Monopoly.

All the benefits of the public domain which were described in section 2 will be eroded by extension of the term of copyright. As the term of copyright extends, the public domain becomes less truly public in fact. This is due to the physical limitations of the tangible media in which the copyrighted works are fixed. The lifetime of printed materials is limited. If the term of copyright is extended by 20 years, the first printing of a work at the end of the term of copyright in its contents will be 20 years older than it would have at the end of the shorter copyright term. The pages will then be 20 years brittler, the bindings will be 20 years weaker, than they would have been under the shorter copyright term. Much of this old ink will be discarded to the trash or sequestered to remote storage. Other old volumes will be placed in special collections which are not accessible to the public or can be consulted only during certain hours when most folk must be at work elsewhere. Others will be backed up to microforms; but microforms are clumsier and more expensive to work from than printed books. Other old materials will be backed up to CD-ROM; but the use of material on CD-ROM is often limited by the terms of shrink-wrap licenses, which the courts [9] have so far found lawful. A few works will be reprinted; but without access to the first printing of a work at the end of the first edition's copyright term, the public domain material cannot be deconvoluted from any still-protected additions and revisions the subsequent editions may contain. All these factors make the public domain less truly accessible to the public. And this analysis assumes that the date of copyright expiration can easily be determined by examining a printed work itself. The recent elimination of the requirement of notice, together with the occasional claim of spurious copyright [1-2], adds a measure of uncertainty which makes access to the public domain more difficult still. The result of these factors will be to make the copyright in some works almost perpetual in fact, even while technically limited under the law, since those who have an interest in a work will have access only at great difficulty and expense, and those who have access may have no interest in the work, or may wish to prevent others from accessing the work except on their terms.

That perpetual copyright is the monopolists' aim is clearly indicated by the statements of term extension's supporters. For example, the Senate Report on S. 483 stated that

By warping the terms of the debate over copyright from a debate over monopoly privileges to a debate over property, the monopolists are using the same tactic their English predecessors used in the mid-1700s, when they tried to revive the Stationers' monopoly in the form of perpetual common-law copyright.

Even more blatant is this statement of the late Arnold Schoenberg, presented to the Senate Judiciary Committee by Arnold Schoenberg's grandson E. R. Schoenberg:

The plain meaning of these words is that someone who copies works in the public domain is as much a "pirate" as an infringer of copyright. It is possible that Schoenberg did not mean this, since it would apply the label "pirate" to such composers as Arnold Schoenberg, who created arrrangements of public-domain works by other composers [12]. But regardless of what Arnold Schoenberg may have meant [13] by his words, his grandson E. Randol Schoenberg seems to be using them in support of perpetual copyright.

Songwriter Patrick Alger also appears to think that copyright should be perpteual:

Here again the expiration of a limited monopoly privilege (which was known to be limited when it was first accepted by the monopolist) is portrayed as no different from being deprived of a chattel.

An explicit assertion that authors are entitled to perpetual copyright was made by the Authors League of America during the debate over the 1976 law:

Most straightforward of all in expressing the extension proponents' desire for perpetual copyright is Mary Rodgers, the president of AmSong, a lobbying group for songwriters and the descendants of songwriters:

The absurdity of these arguments can be seen by comparing the expiration of copyright to the termination of other time-limited agreements. A bond holder does not "give up" anything when the bond matures. Nor does a homeowner who pays off a mortgage "take" anything from the bank which administers the mortgage. Copyright, like other bargains, comes to an end when its terms have been fulfilled on both sides. Furthermore, in all crafts other than writing, the "right of a creator to...control...what he has created" only lasts until the creation is sold. The sale is ordinarily for a fixed price, and afterward the item passes forever from the craftsman's control. Limited copyright (which begins with the Statute of Anne) was devised merely to put writing on the same footing with the other crafts: The easy replicability of books made it hard for a writer, absent a limited monopoly on publication which could be assigned to a bookseller, to get a fair price for the work. But the modern monopolists seem to imagine that writers are a superior class of craftsmen, who are entitled to greater privileges than workers in any other craft: entitled, in particular, to exact infinite payments from the public for their creations.

4. Interference with the creative process.

The erosion of access to old material which was described in section 3 can endanger the entire creative process. How this can happen will be illustrated by examples taken from the field of music.

Notwithstanding the monopolists who insist on "property" rights over music, music is not property. The concept of "property" applies to a man considered in isolation from, or even in opposition to, his fellowmen. If I give another my hat, I have it no longer. If I wear my hat, no other can wear it. My fellowman is at best indifferent to my possession of my hat. At worst, he is a threat to it.

This is not the case with music. Music is not "property", but an act of communication. It requires the presence of the hearer for the consummation of its purpose. It cannot be learned without some form of communication from one musician to the next. Music evolves by means of the ongoing processes of continuity (or assimilation), variation, and selection. These processes have been identified in the evolution of so-called folk music, but in fact all West-European-influenced music has developed by these means. Johann Sebastian Bach (1685-1750) incorporated old German chorales into a number of his works, as well as making use of the works of composers more nearly contemporary with himself[16A].  This was "continuity" and "selection." Sebastian made his own ingenious derivations and inventions on these works of others. This was "variation." Subsequent generations have studied and preserved Sebastian's works, chosen their own favorites from among them, and sometimes used them as the basis of new works [17]. Here again are "continuity", "selection", and "variation." These processes are especially efficient when the music involved circulates as one-line melody. The melodies move from artist to artist, and each artist interprets freely, adding or deleting ornaments modifying the rhythm, speeding the piece up, slowing it down, trying it out on new instruments. The creative processes flourish.

Copyright places a frictional force on the development of music. In an environment in which creative processes operate, copyright is therefore a necessary evil at best. If the term of copyright is not too long, the evil can be tolerated for the sake of the good copyright does. The longer the term of copyright becomes, the more a musician's energies must be spent in overcoming the copyright-induced friction.

For example, a composer who wishes to make a new version of an old song must first determine its copyright status. This may require an expensive and time-consuming search, especially if the copyright was never registered. Alternatively, a song's origins may be obscure, and conflicting multiple copyrights may be registered.

If the song is found and to have a single, credibly identifiable composer, and still to be under copyright, then the musician must locate the copyright holder. If the term of copyright is short, the composer or the composer's immediate heir will likely be able to identify the owner. With our long modern copyright terms, however,

finding the current owner can be almost impossible. Where the copyright registration records show that the author is the owner finding a current address or the appropriate heir can be extremely difficult. Where the original owner was a corporation, the task is somewhat easier but here too there are many assignments and occasionally bankruptcies with no clear title to works. [18]

If the musician finds the owner at last, he must then try to negotiate permission to use the old song. If the owner will not agree, all the effort and expense has been wasted. If the owner cannot be found, the musician might still proceed with his project. But he will then need to spend time and money keeping track of all revenues from the derivative song, and might prudently retain a lawyer also, in case an owner turns up. What began in the joy of musical creation has ended in the drudgery of legal and financial tangles.

An example illustrating long-term copyright's possible threats to the creative process can be found in the case of the well-known song "Home on the Range." In 1934 - a high point in this song's commercial career - an Arizona couple, William and Mary Goodwin, claimed that the song infringed on the 1905 copyright in the Goodwins' song "An Arizona Home." [19] The couple later dropped their lawsuit when Samuel Moanfeldt, an investigator for the Music Publishers Protective Association, was able to produce evidence that the song had not originated with the Goodwins. This included a 1914 newspaper article which indicated that the words to the song had appeared in the Smith County (Kansas) Pioneer newspaper in 1873, affadavits from persons who claimed to have learned the song in the 1870s, 1880s, or 1890s, and a sound recording of the song as sung by Clarence Harlan, an old Kansas pioneer who claimed that he had learned the song from its authors in 1874 [20].

In this example the lawsuit was brought 29 years after the publication of the Goodwins' song. Even so it took Moanfeldt months to turn up the evidence, two important parts of which were a 20-year-old newspaper clipping and a statement from an 86-year-old man. If 95-year copyright had been the law in 1905, "An Arizona Home" would be under copyright until January 1, 2000. Then, even if "Home on the Range," had achieved its popularity in the 1980s rather than the 1930s, it would still have been vulnerable to the claims of "An Arizona Home". But by then, witnesses who could have testified to having learned the melody in the 1870s and 1880s would all have been dead. The strong evidence of 1934 would have been partly or entirely impossible to find in 1984 [21]. Instead, the evidence available might have made the case seem like one of lost origin, in which an original song escaped quickly to oral tradition [22], rather than a case of false claim of origin. The plaintiffs still might not prevail, but the whole proceeding would be much more expensive, and the outcome much less certain. Regardless of the eventual outcome, merely the possibility that some obscure claim could arise from far in the past can complicate the commercial use especially of traditional music:

By keeping copyrighted music close in time to its origins, a moderate term of copyright reduces the level of uncertainty about the copyright status of music. Copyright-related disputes about the origins of music are less likely to arise, and more likely to be resolved fairly, if the term of copyright is not too long. Furthermore, a moderate term means that copyright clearance for validly copyrighted music will be less likely to be made difficult by complex multiple assignments and fragmentation of the rights. Most important of all, the shorter the term of copyright, the sooner the music enters the world of musical freedom in which music thrives best.

5. Whom is it for ?

The monopolists argue that the term of copyright should outlast the lives of an author's grandchildren, and that increases in average life expectancy require the term to be extended. It may be noted in passing that a life-based term extends automatically as lifespan increases. The longer an author lives, the longer will be the total life-plus-fifty year sum. In addition, the law allows an author to extend his later copyrights by publishing his last works anonymously through a publishing company controlled by his heirs. He can always update his copyright registration to identify himself as the author, if he should live long enough that it would make for a longer overall term to do so.

However, it may be that many authors' grandchildren will live beyond the 51st anniversary of their grandparent's death. We may fairly ask what that has to do with copyright. Nothing in the constitution states that an author's grandchildren must earn a living from the author's writings. If anything, the plain words of the relevant constitutional clause suggest the opposite: copyright monopolies are "for authors," not "for authors and their heirs." They are "for limited times," not "for generations." If the term of copyright is long enough to provide a pension for a widowed spouse roughly of the same age as the author, that is a pleasant extra. But its purpose is only to provide a chance for the author to make a reasonable recovery of the creative investment of time and material.

6. International trade

The extension's supporters argue that our balance of international trade will suffer if the term of copyright is not as long as the European term. They insist that we will be harmed if an American film does not collect royalties for as long in France, for example, as a French film would. This argument flies in the face of elementary arithmetic. As long as the United States holds to the principle of national treatment in copyright, all French films will be given seventy-five years of copyright privileges in the U.S. If the French apply the rule of the shorter term, American films will usually receive seventy-five years' protection in France. The two terms match exactly. Hence the balance of trade depends not on the term of copyright, but on the relative number of exports as opposed to imports: in other words, on the balance of trade. Extending the copyright term on films to 95 years does not in itself shift the balance of trade. If French films are under copyright for 95 years in the U.S., and American films for 95 years in France, the balance of trade due to copyright still depends on the relative demand in each country, during the 95-year term, for the other country's films [24]. American filmmakers are perhaps confident that American films will continue to be more in demand in France 75 years hence than French films will be in the U.S. Such long-term market predictions are so highly conjectural that the public is entitled to be skeptical. American films , after all, are more likely to be in demand in the U.S. than anywhere else (if they are in demand at all) after 75 years. The 20-year extension looks more like a means of raising revenue from the American public than from the French.

7. Harmonization with European law

Another argument urged for the term extension is that the longer term will "harmonize" American and European law. This argument is less tenable even than the balance-of-trade argument. The copyright laws of the various European states are not consistent among themselves. There is therefore no single "European" law to harmonize with. Almost the only common element is a life-plus term for works by known authors. If harmonization were the true reason for the extension, the bill would consist only of a life-plus-seventy term for copyrights awarded subsequent to its coming into force. It would contain no provision for works-for-hire, which do not correspond to any common category in European law.

Senator Hatch argues [11] that work-for-hire copyrights must be extended so that American films will be given a term of protection approximately as long as the term of protection for European films. This is ridiculous. Not all European copyright laws give films the same term of protection. And "approximately equal" is not the same as harmonization. If a discrepancy in the term of copyright for films were truly a problem (which it is not, as has been shown in section 6 above), the true solution would be to create a special copyright term for films, not to extend the copyright term in all works for hire without exception.

8. Breach of faith.

When the 94th Congress passed the 1976 Copyright act, implied was a promise that all the copyrights then in force would terminate after 75 years. Now the 105th Congress wishes to double-cross the public and extend the term of copyright again at the behest of the moneyed interests. No more blatant sell-out to the special interests can be imagined. Even if it were good policy to extend the term for post-1978 copyrights, extension of pre-1978 copyrights cannot be justified on any reasonable ground. To extend monopolies that have outlived their purpose merely to enrich the monopolists, when the termination of the monopolies at a set time had already been promised, represents a serious breach of the public trust.


The author is grateful to Prof. Dennis Karjala for helpful discussions.

9. Notes and References.

1. Paul J. Heald, "Revising the Rhetoric of Public Interest: Choir Directors, Copy Machines, and New Arrangements of Public Domain Music" Duke Law Journal 46(2), 241-290(1996).

2. Paul J. Heald, "Payment Demands for Spurious Copyrights: Four Causes of Action," Journal of Intellectual Property Law, 1(2),259-292, Spring 1994.

3. Howard B. Abrams, "The Historic Foundation of American Copyright Law: Exploding the Myth of Common Law Copyright," Wayne Law Review 29(3),1119-1187, Spring 1983.

3*.  John Murray, "Some Civil Cases of James Boswell," Juridical Review 52, 222-251 (1940); Ian Simpson Ross, Lord Kames and the Scotland of his Day, Oxford University Press, 1792, pp. 141-143..

4. The Parliamentary History of England from the Earliest Period to the Year 1803, vol. 17, Longman, Hurst, Rees, Orme & Brown et al., London, 1813. AMS Reprint, 1966.

5. Comment received from the Authors' League of America, February 23, 1962, Copyright Law Revision Part 2²Discussion and Comments on Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law, 88th Congress, 1st Session, February 1963, U.S. Government Printing Office, Washington, 1963 (hereafter House Discussions, February 1963), page 316.

6. Senate Hearings 104-817: Hearing before the Comittee on the Judiciary, United States Senate, 104th Congress, 1st Session, on S. 483, September 20, 1995 (hereafter Senate Hearings 104-817), p. 54. U.S. Government Printing Office, Washington, 1997.

7. M. William Krasilovsky and Sidney Shemel, This Business of Music, 7th Edition, Billboard Books, New York, 1995.

7*. Since a hymnal is a "compilation" under 17 U.S.C. § 101, a copyright extends to the "selection and arrangement" of materials in the hymnal, even if every single item is individually in the public domain. While a compilation copyright can be infringed, I think the uses of small numbers of public domain hymns imagined in this section would be extremenly unlikely to do so.

8. Randolph P. Luck, Letter to members of the United States Senate, March 31, 1998.

9. ProCD v. Zeidenberg 39 USPQ.2d 1161 (7th Cir., 1996).

10. Senate Report 104-315, Copyright Term Extension Act of 1996, 104th Congress, 2nd Session, July 10, 1996.

11. Senate Hearings 104-817:, p. 68.

12 For example, an orchestral arrangement of a Bach choral prelude, Komm, Gott Schoepfer Heiliger Geist, BWV 667, which was itself based on a 16th-century German melody, which was in turn based on the Latin hymn, Veni Creator Spiritus. Arnold Schoenberg, Saemtliche Werke, Reihe A, Band 25, Bearbeitungen I, B. Schott's Soehne, Mainz, 1986, p. 1.

13. In a letter to William S. Schlamm dated June 26, 1945, Schoenberg wrote that he planned "rewriting an essay on copyright, stating the injustice of this law, which allows the theft of a creator's property, after a certain period: a period which in most cases deprives a creator of the right to bequeath his heirs his property; and which is especially cruel in cases when recognition has been denied to an author during his lifetime." Arnold Schoenberg, Letters, selected and edited by Erwin Stein, Translated by Eithne Wilkins and Ernst Kaiser, St. Martins Press, New York, 1965, p.235. This suggests that Schoenberg's concern might have been the U.S. Copyright law's fixed term, which occasionally lapsed during an author's lifetime. If this is correct, then the essay is urging a life-based term rather than perpetual copyright, and Schoenberg's concerns were completely satisfied by the 1976 copyright law. However, the words of Schoenberg's essay give no impression that any term short of a perpetual term would have satisfied him.

14. Senate Hearings 104-817, p. 123.

15. House Discussions, February 1963, page 249-250.

16. Robert Kolker, "Theatres on Alert as Congress Looks at Copyright Law," Back Stage, 36(9), March 3, 1995, page 3.

16A. For example, Cantata #147, "Herz und Mund und That und Leben" incorporating the German Chorale melody Werde Munter by Johann Schop (d. circa 1665); and the organ prelude BWV 579 , "Fugue on a theme by Corelli", built on a motive by Archangelo Corelli (1653-1713).

17. Walt Disney's Fantasia (released circa 1940) included a J.S. Bach Tocatta and Fugue arranged for modern symphony orchestra (an ensemble unknown in Bach's time) combined with moving pictures (a medium unknown in Bach's time.)

18. Senate Hearings 104-817, p. 18-19.

19. Southern Music Publishing Company, Inc. et al. v. Bibo-Lang, Inc. et al., 26 USPQ 321 (S.D.N.Y, 1935), 26 USPQ 324 (S.D.N.Y., 1935). See also "$500,000 Suit Hinges on Shifting of Nouns", New York Times, June 15, 1934, p. 3; "Plagiarism Suits Name Two Popular Songs; One is about Arizona, Other about the Moon", New York Times, Oct. 31, 1934, p. 39; John A. Lomax, "Half-Millian Dollar Song -- Origin of 'Home on the Range'", Southwest Review 31(1), 1-8, Fall 1945; Jim Bob Tinsley, He Was Singin this Song, A Collection of Forty-eight Traditional Songs of the American Cowboy, with Words, Music, Pictures, and Stories, University Presses of Florida, Orlando, 1981, p. 215.

20. Samuel Moanfeldt, "Report of Samuel Moanfeldt of His Investigation" May 1935, printed as appendix to Kirke Mecham, "Home on the Range", Kansas Historical Quarterly 17(4),313-339, November, 1949.

21. The newspaper source Moanfeldt found was an article in the Smith County (Kansas) Pioneer of February 19, 1914 (Moanfeldt, "Report", ref. 20 above.) In the 1940s the words to the original "Western Home" were discovered to have been published also in the February 29, 1876 issue of the Kirwin (Kansas) Chief. While both these sources presumably still exist in the archives of the Kansas State Historical Society, even those archives are not immune to fire, tornado, and theft. Furthermore, Moanfeldt, for all his resources and hard work, failed to uncover the Kirwin Chief article. (Tinsley, ref. 18 above, states that Moanfeldt located this article, but this seems to rest on a misreading of the earlier literature. Moanfeldt's report makes no mention of the 1876 article.) Finally, the newspaper sources only provided evidence for the authorship of the words. Moanfeldt's evidence for the melody relied mainly on the testimony of witnesses, some of whom (like Mr. Clarence Harlan) were quite old. This was a matter of concern to Moanfeldt, who wrote, "I suggest...that a conference be called by all the attorneys, and a decision should be made as to what depositions should be taken in this matter....[A] conference...would help determine which of these people should be brought on should a trial become necessary and the people whose depositions should be taken immediately because of age or other circumstances." (Moanfeldt, "Report", ref. 19 above.)

22. An apparent example of a "lost origin" copyright case is Mills Music, Inc. v. Cromwell Music, Inc. 103 USPQ 84 (S.D.N.Y., 1954) (dispute over authorship of the song, "Tzena Tzena"); and possibly also Baron v. Leo Feist, Inc., 72 USPQ 107 (S.D.N.Y., 1946), 78 USPQ 41 (S.D.N.Y., 1948), 78 USPQ 328 (S.D.N.Y., 1948), 80 USPQ 535 (2nd Cir., 1949) (dispute over authorship of the Calypso melody "L'Anee pasee"/"Rum and Coca-Cola"), and Fruedenthal v. Hebrew Publishing Company et. al. 53 USPQ 466 (S.D.N.Y., 1942) (dispute over authorship of the melody "Hora Haemek hu Shalom".) Apparent examples of "false claim" cases, besides Southern Music v. Bibo-Lang mentioned above, are Edward B. Marks Music Corp. v. Stasny Music Corp. et. al. 49 USPQ 553 (S.D.N.Y, 1941) (dispute over authorship of "Alla en el Rancho Grande"); George v.Victor Talking Machine Co. 17 USPQ 133 (D.N.J, 1933), 20 USPQ 107 (3rd Cir., 1934), 293 U.S. 544 (1934), 293 U.S. 377 (1934), 38 USPQ 222 (D.N.J, 1938), 42 USPQ 346 (3rd Cir., 1939), certiorari denied 308 U.S. 611 (1939), rehearing denied 308 U.S. 638 (1939), 309 U.S. 693 (1940) (dispute over authorhip of the words to "The Wreck of the Old '97"); Cloth v. Hyman, 112 USPQ 254 (S.D.N.Y., 1956) (over authorship of a humorous army anecdote); and, in part, Walters v. Shari Music Publishing Corp., 126 USPQ 268 (S.D.N.Y., 1960), 129 USPQ 145 (S.D.N.Y 1961) (plaintiff claimed full authorship of song based on Jamaicn folk song "Iron Bar".) My thesis is not that the result in any of these cases would have been different if the term of copyright had been 95 years at the time the cases were heard, but that an extremely long term allows the possibility of "submarine copyrights" in which an infringement suit is brought so long after the plaintiff's copyright came into being that the defendant's problems of proof are greatly exacerbated. Of course, a very long term can also exacerbate problems of proof for the plaintiff. The point is that the possibility of an inaccurate outcome increases the farther important facts recede into the past.

23. Oscar Brand, The Ballad Mongers: Rise of the Modern Folk Song, Funk & Wagnalls, New York, 1962, p. 209.

24. This assumes that copyright fees for films are computed in the same way on both sides of the ocean. Professor Patry, in a closer analysis than is made here, suggests that this is not the case, and that the difference may be to the U.S. filmmakers' disadvantage. William Patry, "The Failure of the American Copyright System: Protecting the Idle Rich," Notre Dame Law Review, 72(4), 907-933, May, 1997. If Professor Patry is correct, then extending the copyright term might influence the U.S. balance of trade negatively, and this imbalance will be greater the longer the extension--an effect opposite to what the extension's supporters intend.