Opposing Copyright Extension

Commentary on Copyright Extension

by Stephen R. Barnett and Dennis S. Karjala

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by Stephen R. Barnett and Dennis S. Karjala

The Washington Post, July l4, l995, op-ed page
(reprinted in the Sacramento Bee and elsewhere).

Law doesn't get credit for much these days, but U.S. copyright law, judged by results, has been eminently successful at stimulating creativity. We lead the world in production of books, music, movies, TV shows, computer programs, and other popular works.

Copyright achieves its results through a bargain, a deal between the "author" and the public. Theauthor, or more accurately the copyright owner, gets a legal monopoly so no one can copy his work. But this monopoly can last -- as the Constitution dictates -- for only a "limited time." After that, the work goes into the public domain, so other authors, artists, and composers can use it in creating new works, and so the entire public can draw on it as part of our cultural heritage.

At present copyright lasts in the United States until 50 years after the author's death -- or in the case of corporate authors (like Disney or Microsoft), or of works published before l978, until 75 years after their publication.

These periods might seem long enough. But legislation barreling through Congress, and now before a House Judiciary subcommittee, would add 20 years to every copyright, including existing ones. The copyright monopoly thus would extend to 70 years after the author's death, or 95 years from publication.

This is a bad idea, one that would upset the copyright balance. Super-extended copyright terms add little incentive to create new works. What author is going to decide not to write another book because copyright royalties will flow only for 50 years, not for 70 years, after her death?

But such long terms raise the public's costs for access to the work. They may also bar access, since the writer's descendants may not approve of what she wrote. When a historian discovered illicit love letters written by President Warren Harding, Harding's nephew succeeded in having them locked up for 50 years.

Super-long terms also may block authors from creating new works based on earlier ones. A federal court enjoined Ian Hamilton's biography of J.D. Salinger because it quoted too much from Salinger's (publicly displayed) letters. The pending legislation would let Salinger's heirs stifle such a biography not just for 50 years but for 70 years after Salinger's death. The estate of Lorenz Hart, likewise, could enforce for an added 20 years its policy of denying use of Hart's lyrics to any biographer who won't promise not to mention that Hart was gay.

Or consider the many biographers and would-be biographers of Sylvia Plath, as chronicled in Janet Malcolm's The Silent Woman. They must contend with censorship of their work by Plath's husband, Ted Hughes, if they want to quote substantially even from the published poems of Plath. This regime, too, would last an additional 20 years under the pending legislation.

What's going on is a continued refusal by copyright owners to abide by the copyright bargain. Works now about to enter the public domain were published in the l920s. The U.S. copyright term then was 56 years from publication. In l978, just as that term was expiring, Congress extended it to the present 50 years from the author's death or 75 years from publication. Now that term is expiring, and the owners want another 20 years. If they get it, they'll probably be back again in 20 years.

The existing periods already are so long that only rarely are we talking about the authors themselves. The human individuals who created the works have long since passed from the scene. It is their heirs, assignees, and employers who reap the revenues flowing from a longer term and now want them for another 20 years.

On what grounds? The main argument is that Europe is doing it. The countries of the European Union, in "harmonizing" their copyright laws, did not want to reduce any existing terms and therefore chose about the longest term they could find, "life plus 70." There's no reason for the United States to follow this bad example.

Moreover, the pending bills would not really "harmonize" U.S. law with Europe's. For example, while U.S. corporate authors would get a term of 95 years, Europe now gives corporate authors -- in countries that recognize such "authorship" -- only 70 years, less than the 75 we already provide.

Why does such wrong-headed legislation do so well? Excessive copyright terms hurt the general public but feather the nests of copyright interest groups. A few years ago, when courts were denying the right even to quote from copyrighted works, publishers joined biographers, historians, and journalists to protest and get the law amended. The present threat to creativity and the public domain probably is greater, but publishers are more interested in the increased royalties they can draw by keeping old books and other works out of the public domain for another 20 years.

Biographers, historians, and journalists likewise are not heard from. The U.S. Copyright Office apparently is "neutral," and the Justice Department's Antitrust Division has taken no position. As Congress moves toward taking this big bite out of the public domain, the territory lies virtually undefended.

For a more detailed analysis, see the 1998 Statement of Dennis S. Karjala on behalf of Copyright and Intellectual Property Law Professors to the House and Senate Judiciary Committee in connection with the legislation that became The Sonny Bono Copyright Term Extension Act of 1998.  You may also wish to look at Dennis Karjala's earlier Written Testimony before the House Subcommittee on Courts and Intellectual Property, H.R. 989, July 13, 1995.