Commentary on Copyright Extension
Copyright Extension as a
and the Failure of "Harmonization" with Europe as a Legitimate Justification
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CONGRESS MOVES TO EXTEND COPYRIGHT WELFARE
By Dennis S. Karjala
Submitted as an OpEd piece to both the New York Times and the
Wall Street Journal, June 1996 (but not published)
After several months of dormancy, Committees of Congress have sprung back into action on a piece of welfare legislation that will cost the U.S. public dearly. This is the Copyright Term Extension Act of 1996 (S.483, introduced by Senator Hatch, and H.R. 989, introduced by Representative Moorhead). These bills would add 20 years to the term of copyright protection for all works--not just those created after adoption of the bills but even those already in existence, including books, music, and films from the 1920's of great historical and cultural significance that otherwise are about to enter the public domain. These bills are no more than a welfare measure to those persons who own copyrights on old works from that period--a wealth transfer imposed on the American public for the benefit of large corporations (like Disney, whose copyright on Mickey Mouse has only a decade or so to run) and descendants of creative artists like George Gershwin or Oscar Hammerstein II. Schools that wish to publicly perform plays and music, 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.
The proponents of these bills obviously cannot argue that extending the copyright on existing works operates as an incentive to their creation--after all, they're already there. Support for the measures is therefore hiding under the banner of "harmonization." Europe has recently extended the term of copyright under a condition that recognizes foreign copyrights for the extended term only if the foreign country itself has extended its term. The handkerchiefs are therefore drawn to mop the tears of the poor U.S. copyright owners, who will "unfairly" lose out on this European bonanza if we, too, fail to extend our periods of protection.
It must first be noted that the bills do NOT harmonize with Europe with respect to old works, notwithstanding incessant incantation of the word. Our period for old works is a flat 75 years from publication (proposed to go to 95 years), while Europe's is 50 years after the death of the individual author who created the work. Neither a flat 75-year period nor a flat 95-year period harmonizes these terms, except in fortuitous cases.
It is therefore the supposed "unfairness" to U.S. copyright owners that seems to be at the root of support for the extensions. Is it unfair that the owners of old U.S. copyrights not receive royalties in Europe?
Let us consider a simpler example. Suppose Europe decided to guarantee a $20,000 income to each of its citizens, the wealthier members of the public being taxed to support the guaranteed wage. Everyone would agree that this is a welfare measure. Would "harmonization" be a ground for adopting such a welfare measure in the U.S. without cost/benefit analysis? Very doubtful. Now suppose, however, that Europe extends its new guaranteed annual wage to everyone residing within its borders, on condition in the case of foreigners that the other country offer similar treatment to Europeans. Would "unfairness" to Americans in Europe be a ground for our adopting a similar measure? Is it conceivable that Senator Hatch and Representative Moorhead would support such a welfare policy in the name of "harmonization" or "fairness"?
If there is any "unfairness" here, it is the discrimination against noncitizens by Europe. Our government should perhaps in such cases seek to persuade Europe not to act so discriminatorily, but surely we would adopt the welfare measure for ourselves only after carefully considering all the costs and benefits to those in the U.S. who would be footing the bill, not only for the poor Europeans residing in the U.S. but also for the many U.S. citizens whose incomes would call for support under the new system.
This overt welfare example is, however, no different from what is happening with the copyright extensions. The claim is that U.S. copyright owners will lose out in Europe unless we extend. But what will they lose? That Europe has decided to tax its citizens for the benefit of European copyright owners causes no loss to U.S. copyright owners. U.S. copyright owners always expected their copyrights to expire in 75 years, and when that happens, they are receiving no less than they expected. (In fact, they only "expected" 56 years, because we've already extended the term once, in 1976.)
And matching the European period will require not just Europeans but also the U.S. public to pay those same U.S. copyright owners (and to pay for the use of extended European copyrights as well). It stands to reason that we are greater users of U.S. copyrights than citizens of other countries. I am aware of no data on the question, but whatever the multiple is (for example, if foreign uses constitute 20% of the total use of U.S. works, the multiple is 4:1), the U.S. public will have to continue to pay that multiple of dollars to U.S. copyright owners for every dollar paid by Europeans. And this welfare transfer does not even consider the added loss to the U.S. public in the form of new creative works that are not created because the transaction costs of negotiating copyright permissions after so many years is too high.
The proposed copyright term extensions are a travesty that, if adopted into law, will become a tragedy. They are not based on the public interest but rather on private greed. Only the technical complexity of the issue and the diffuse nature of the public harm allows such proposals to move through the Congress essentially without public debate. They can be stopped, but not by a silent majority, or even a silent supermajority. Opponents of the extensions must be heard by Congress, with voices as loud as those seeking to prolong their parade of royalty welfare checks.