Opposing Copyright Extension

Commentary on Copyright Extension

Statement of Copyright and Intellectual Property Law Professors on the Public Harm from Copyright Extension

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The undersigned are all university professors who regularly teach or conduct legal research in the fields of copyright or intellectual property.

United States copyright law is designed to stimulate creativity by affording authors exclusive rights to important uses of their works (such as publication or public performance). As provided in the Constitution, Congress may afford these rights only for limited times. The current copyright system strikes an inspired balance between protecting new works and allowing authors to draw on earlier works that constitute their cultural heritage. Judged by the results, our law has been tremendously successful at stimulating creativity, and United States copyright industries lead the world in the production of popular works such as books, movies, and computer programs.

Legislation now before Congress (H.R. 989, S. 483), if passed, will upset this balance by tacking an additional 20 years onto the term of every copyright, including existing copyrights. Under current United States law, a copyright already remains valid for a period of 50 years after the death of the work's author, or for a period of 75 years after publication in the case of corporate authors (such as Disney or Microsoft). The proposals would extend these periods by another 20 years, that is, for 70 years after the death of individual authors and to a total of 95 years for corporate authors. Indeed, the protection period for unpublished works would go from 100 to 120 years after creation. Adoption of this legislation would impose severe costs on the American public without providing any public benefit. It would supply a windfall to the heirs and assignees of dead authors (i.e., whose works were first published around 1920) and deprive living authors of the ability to build on the cultural legacy of the past.

Intellectual property law rests on a careful balance of public and private interests. Our Constitution provides for the protection of intellectual property for a limited time to encourage the production of creative works. On the other hand, the longer exclusive rights last in a particular work, the more expensive it is for subsequent artists to create new works based on it. The most important goal in drawing this balance is to promote the creation and dissemination of information. This, in turn, depends on the existence of a rich public domain--consisting of works on which contemporary authors can freely draw.

All authors, artists, and composers make use of the public domain in creating new works. Current composers rely on themes, concepts, and even actual melodies from classical or folk traditions, but eventually their music too will enter the public domain so that future composers can make further use of their contributions. When Disney makes a delightful animated film out of Snow White or Beauty and the Beast, the studio is not creating these works from scratch but rather is relying on old folk tales, on which the copyrights long ago expired. In turn, the Disney films themselves will eventually be available for reworking by other creative artists.

Basically, copyright is a "bargain" that the public makes with its authors. That bargain gives exclusive rights to authors, which result in higher prices to the public, but the public gets more works than would otherwise be available. The longer the exclusive rights last, however, the less each additional year of protection adds to today's incentives, while today's costs to the public remain the same (because the extension applies to existing works). We believe that the costs begin to exceed the incentive effects well before the copyright duration hits life + 70 years.

To see whether you agree, ask yourself the following question: How many authors would actually say, "Well, I might consider writing another novel if the protection period extended to my great-grandchildren 70 years after my death, but if the monopoly continues only to my grandchildren 50 years after I die, I guess I'll go do something else"? We suspect that few creative authors will be any more productive in response to a 20-year extension of an already long protection term. Furthermore, the likelihood that a work will remain economically valuable for the extra 20 years is very small. Disney, for example, is quite unlikely to be induced to produce more popular films like The Lion King based on the speculative (and at best minimal) increase in present value of a revenue stream that might go on for 95 rather than 75 years. (Indeed, Disney might not have been so quick to create the Lion King and the Little Mermaid had it not been so worried about the imminent passage of Mickey Mouse into the public domain.) What is certain, however, is that such an extension of the copyright term would seriously hinder the creative activities of future as well as current authors. Consequently, the only reasonable conclusion is that the increased term would impose a heavy cost on the public--in the form of higher royalties and an impoverished public domain--without any countervailing public benefit in the form of increased authorship incentives.

Indeed, if incentives to production were the basis for the proposed extension, there would be no point in applying it to copyrights in existing works. These works, by definition, have already been produced. Yet, if the extension were purely prospective (i.e., applicable only to new works), we could be certain that support for it would wither rapidly. Thus, the real issue is the continued protection of old works--not those that will enter the public domain 50 (or 70) years from now but rather those due to enter the public domain today. These works were originally published in 1920 (works published before 1978 have a flat 75-year copyright rather than the current life + 50 for individual authors). At that time, the law afforded a maximum of 56 years of copyright protection. This period was expanded to 75 years in 1976, and now the descendants and assignees of these authors want yet another 20 years. The very small portion of these works that have retained economic value have been producing royalties for a full 75 years. In order to continue the royalty stream for those few copyright owners, the extension means that all works published after 1920 will remain outside the public domain for an extra 20 years. As a result, current authors who wish to make use of any work from this period, such as historians or biographers, will need to engage in complex negotiations to be able to do so. Faced with the complexities of tracking down and obtaining permission from all those who by now may have a partial interest in the copyright, a hapless historian will be tempted to pick a subject that poses fewer obstacles and annoyances.

One argument made in favor of the extended term is that it would track the countries of the European Union, which now have a life + 70 year term. It is true that retaining our current term of protection would deny some United States copyright owners (mainly companies rather than individuals) the financial benefit of this European windfall. But the mere fact that the European Union has adopted a bad idea does not mean that the United States should follow suit. France might elect in the future, for example, to give the works of Voltaire or Victor Hugo perpetual copyright protection, but that would be no reason for us to do the same with Mark Twain or Emily Dickinson. The European copyright tradition differs in important ways from that of the United States, primarily by treating copyright as a kind of natural entitlement rather than a source of public benefit. The European approach may on balance tend to discourage, rather than promote, new artistic creativity. We should not, therefore, assume that a policy giving a few United States firms and individuals an added financial windfall from works created long ago necessarily is one that promotes our long-term competitiveness in the production of new works.

The concept of a limited term of copyright protection is based on the notion that we want works to enter the public domain and become part of the common cultural heritage. We believe that the author's descendants have had enough time to enjoy the revenue flow still produced by the (relatively few) works that continue to have significant economic value 50 years after the author's death. And if these works should be freely available here, they should be freely available everywhere, so that creative artists throughout the world can base new works upon them for the benefit of the consuming publics both in the United States and abroad. This, after all, is the goal of supplying copyright protection in the first place. In this context, the notion of international "harmonization" simply obfuscates the real issue: There is no tension here between Europe and the United States. The tension, rather, in both Europe and the United States, is between the heirs and assignees of copyrights in old works versus the interests of today's general public in lower prices and a greater supply of new works. The European Union has resolved the tension in favor of the owners of old copyrights. We should rather favor the general public.

Moreover, the bills pending before Congress are not really aimed at harmonizing United States and European law. The bills, for example, extend the copyright period for corporate "authors" to 95 years (or 120 years if the work is unpublished). The European Union, by contrast, now offers corporate authors, for countries recognizing corporate "authorship," 70 years of protection, which is less than the 75 years we currently offer such authors. Consider also the works of Sir Arthur Conan Doyle, who died more than 50 years ago and whose works have for some time been in the public domain in England (and Europe). Due to peculiarities of pre-1978 United States copyright law, his later works remain under United States copyright, delaying production in this country of public domain collections of his entire works, although Europeans may do so freely. The extension would continue this "disharmony" for another 20 years.

Why the music and book publishers and the motion picture industry are backing the proposed extended copyright period is obvious. Those few works that hold on to their popularity for a long time provide an easy stream of revenue, and no one on the receiving end likes to see the stream dry up. But we must remember that the current copyright term is already very long. The individual human beings whose efforts created these revenue streams have long since passed from the scene. Society recognized the copyright in the first place not so that the revenue stream would be perpetual but rather to encourage creation of the works. Once this purpose has been served, no justification exists to ask the public to continue to pay simply to keep the stream flowing. The costs to the public are not limited to the actual royalty dollars in the stream. They also include the unknown (and unknowable) but very real loss of desirable works that are not created because underlying works that would have served as a foundation remain under the control of a copyright owner.

This legislation is a bad idea for all but a few copyright owners and must be defeated.

Howard B. Abrams
University of Detroit Mercy School of Law

Martin J. Adelman
Wayne State University Law School

Howard C. Anawalt
Santa Clara University School of Law

Stephen R. Barnett
University of California at Berkeley School of Law

Margreth Barrett
University of California Hastings College of the Law

Mary Sarah Bilder
Boston College Law School

Robert G. Bone
Boston University School of Law

Ralph S. Brown
Yale Law School

Dan L. Burk
Seton Hall School of Law

Amy B. Cohen
Western New England College School of Law

Kenneth D. Crews
Indiana University School of Law - Indianapolis

Robert C. Denicola
University of Nebraska-Lincoln College of Law

Jay Dratler, Jr.
University of Hawaii William S. Richardson School of Law

Rochelle C. Dreyfuss
New York University School of Law

Rebecca Eisenberg
University of Michigan Law School

John G. Fleming
University of California at Berkeley School of Law

Laura N. Gasaway
University of North Carolina School of Law

Wendy J. Gordon
Boston University School of Law

Dean M. Hashimoto
Boston College Law School

Paul J. Heald
University of Georgia School of Law

Peter A. Jaszi
American University, Washington College of Law

Mary Brandt Jensen
University of Mississippi School of Law

Beryl R. Jones
Brooklyn Law School

Dennis S. Karjala
Arizona State University College of Law

John A. Kidwell
University of Wisconsin Law School

Edmund W. Kitch
University of Virginia School of Law

Robert A. Kreiss
University of Dayton School of Law

Leslie A. Kurtz
University of California at Davis School of Law

Roberta Rosenthal Kwall
DePaul University College of Law

William M. Landes
University of Chicago Law School

David L. Lange
Duke University School of Law

Marshall Leaffer
University of Toledo College of Law

Mark Lemley
University of Texas School of Law

Jessica Litman
Wayne State University Law School

Peter S. Menell
University of California at Berkeley School of Law

Robert L. Oakley
Georgetown University Law Center

Harvey Perlman
University of Nebraska College of Law

L. Ray Patterson
University of Georgia School of Law

David G. Post
Georgetown University Law Center

Leo J. Raskind
Brooklyn Law School

David A. Rice
Rutgers-Newark School of Law

Pamela Samuelson
University of Pittsburgh School of Law

David J. Seipp
Boston University School of Law

David E. Shipley
University of Kentucky College of Law

Robert E. Suggs
University of Maryland School of Law

Eugene Volokh
University of California at Los Angeles School of Law

Lloyd L. Weinreb
Harvard University Law School

Sarah K. Wiant
Washington & Lee University School of Law

Alfred C. Yen
Boston College Law School

Diane L. Zimmerman
New York University School of Law