Materials (105th Congress)
Click here for Dennis
Karjala's summaries of the some 1000 pages of hearings testimony and
prepared statements submitted to congressional committees (Senate Judiciary and
House Judiciary's Subcommittee on Courts, Intellectual Property, and the
Internet). This includes some links to the complete testimony and
statements to the extent they are available. The hearings cover both the
104th and 105th Congresses.
Also, it turns out that
the House Subcommittee actually issued a report on the CTEA in 1998: H.R.
Rep. 105-452 (1998). It mainly rehashes just what the amendments
would accomplish, without giving much in the way of reasons. Its
discussion starts off with the "rule of the shorter term" and the
"profound effects" on U.S. copyright if we do not extend as
well. It makes the wholly conclusory statement, "Extending copyright
protection will be an incentive for U.S. authors to continue using their
creativity to produce works, and provide copyright owners generally with
the incentive to restore older works and further disseminate them to the public,"
without supplying any factual basis therefore. Finally, it says, "Authors will be able to pass along to their children and grandchildren
the financial benefits of their works." Those reasons, apparently,
were thought sufficient to meet the requirements of the Constitution that terms
be granted for "limited times" and only to "promote the progress
of science," because the Report actually quotes the constitutional
text. Rep. Lofgren added her personal views that she supported the bill
because the "the reciprocal recognition of copyrights by the European
Union part of the tradeoff if the United States extends copyright terms
is important for American copyright holders." She argued for a
provision with respect to commercially unavailable works that would "allow, for the purposes of research, private study, or archival activities,
the work to be used as if it were still in the public domain." Her
intentions undoubtedly were good, but it reflects a crabbed view of the
public domain and of its constitutional importance.
Text of the The
Sonny Bono Copyright Term Extension Act as adopted by Congress
and signed by the President. See the discussion of H.R.604 below
for the major differences between the bill as adopted and those introduced
in the 104th Congress.
Dated January 28, 1998, of Copyright and Intellectual Property Law Professors
in Opposition to "The Copyright Term Extension Act." This was Dennis
Karjala's last and most up-to-date analysis of term extension and its many
problems. While written as a legal argument (addressed to a Congress
that never considered it), part of it remains readable even to laypersons.
It shows, for example, that if the law as extended
by special interests had been in place in the 19th century, both Santa
Claus and Uncle Sam would have gone into the public domain only in 1973!
The House Subcommittee on September 30, 1997, after
having held essentially secret hearings in June and without even announcing
that the Subcommittee was going to markup on copyright term extension,
adopted and sent on the the full Judiciary Committee H.R.
2589 , which was identical to S.505
introduced in the Senate, except for a meaningless new Section 4 stating
the "sense of the Congress" that copyright owners of audiovisual works
negotiate in good faith with screenwriters, directors, and performers "to
reach a voluntary agreement or voluntary agreements with respect to the
amount of remuneration to be divided among the parties for the exploitation
of those audiovisual works." In other words, the fight as far as
this Subcommittee was concerned was only about how to split up the spoils
of which Congress hereby planned to rob the public. This bill was
eventually reported to the full House by voice vote, and essentially no
dissent, by the Judiciary Committee. The bill went to the House floor
and was adopted on March 25, 1998, as the "Sonny Bono Copyright Term Extension
Act," but with amendments from the floor that included the controversial
"Fairness in Music Licensing Act." ASCAP, which prior to this floor amendment
had been a strong supporter of the bill, suddenly saw more royalty losses
from the liberalized performance rights exemptions (which have nothing
to do with term extension--it's just another special interest group getting
its way with Congress without any consideration of the public interest)
than it would gain from the longer terms. So, ASCAP became an opponent
of the bill as amended, which gave some of us hope that nothing would pass
the 105th Congress. Alas! Senator Hatch decided that Disney's support was
more important than ASCAP's. (Michael Eisner personally lobbied to get
the bill passed--of course, he gets a hearing from the likes of Trent Lott
and Orin Hatch but not we representatives of the mere public interest.)
Consequently, Senator Hatch sat on the bill until the closing days of the
105th Congress and then slipped it through when most people were following
the impeachment proceedings as well as the important developments that
turned into the Digital Millennium Copyright Act.
Click here for the text of H.R.
604, the Copyright Term Extension Act of 1997, introduced on February
5, 1997, by Representative Gallegly. This bill was quite similar to H.R.
989 (considered in the 104th Congress). In fact, it was essentially identical
to the bill that passed the Senate Judiciary Committee in the 104th Congress.
(This shows how closely supporters of these extension bills worked together
in both houses of Congress.) Important differences from the earlier bills
(as introduced) were:
H.R. 604 did not extend the period under section
303 (now set at Dec. 31, 2002) within which pre-1978 unpublished works
remain under federal copyright unless they are published. It does extend
until 2047 the term of the copyright for any such works that are published
before the end of the year 2002. This was carried over into the Sunny Bono
Copyright Term Extension Act, one of the few "victories" the public interest
won in this sordid mess.
H.R. 604 would have added a provision permitting
a "nonprofit educational institution" to make use of published works during
the last 20 years of the copyright term "for purposes of preservation,
scholarship, or research," unless either (1) the work is subject to normal
commercial exploitation, (2) a copy of the work is available at a reasonable
price, or (3) the copyright owner serves notice that either (1) or (2)
apply. In fact, because fair use would already permit everything this provision
allows, this purported benefit to libraries and nonprofit organizations
is actually DETRIMENTAL, by implying that uses not complying with its very
narrow scope are no longer fair! This, too, was carried over into the final
version as passed.
H.R. 604 made a technical revision of the proposals
in the 104th Congress that could have been interpreted as reviving copyrights
that have or will have expired before the effective date of the Act. H.R.
604's proposed amendment of section 304(b) makes clear that extension does
not cover copyrights whose term has expired prior to the effective date
of the Act. It became part of the Sunny Bono Copyright Term Extension Act.
This, too, must be regarded as a small, but important, victory for the
Click here for the text of S.
505, the Copyright Term Extension Act of 1997, as introduced on March
20, 1997, by Senator Hatch and co-sponsored by Senators Leahy, D'Amato,
Thompson, Abraham, and Feinstein. This bill was largely identical to H.R.
604 but included in addition a provision supplying termination rights in
the additional twenty-year period in those authors or copyright owners
who failed to exercise their termination rights under section 304(c) with
respect to the 19-years already added to the term of their copyrights by
the 1976 Act. This provision was also carried over to the Sunny Bono Copyright
Term Extension Act.
Click here for Sections
302-305 of the U.S. Copyright Act, as amended by H.R. 989 (these are
the copyright term duration provisions of the Copyright Act, with the alterations
and deletions that would have been effected by H.R. 989 shown by strikeout
Introduction of S.483
into the Senate by Senator Hatch on February 22, 1995, explaining his reasons
for the bill. It includes the text of S.483 as well as remarks by Senator
Feinstein in support of the extension measure. Senator Feinstein relies
heavily on a Billboard article by Professor Arthur Miller, which
she also included in the Congressional Record. I append (with links from
the text) some of my own comments on the Senators' remarks and on Professor
Miller's assertions. This document is worth
reading. It gives, presumably, the best arguments for extension that its
supporters can come up with (and how easily these arguments are refuted).
of Dennis S. Karjala on behalf of Copyright and Intellectual Property Law
Professors before the House Subcommittee on Courts and Intellectual Property,
H.R. 989, July 13, 1995 (a careful legal analysis showing the harm to the
public interest from copyright extension).
Testimony of Professor Peter Jazsi on S. 483 before the Senate Committee
on the Judiciary, September 20, 1995. A
short, cogent, and readable analysis of the serious problems involved in
copyright term extension.
Judiciary Committee Report No. 104-315 containing the complete text
of the bill that passed Senate Judiciary in 1996, together with the reasons
and arguments offered in support of the bill. Comments of Dennis S. Karjala
on this Report will be provided soon. The Report contains the minority
views of Senators Brown and Kohl as well as the additional (although unfortunately
concurring) views of Senators Leahy and Simon & Kennedy. The
arguments in dissent of Senators Brown and Kohl are well worth reading--they
give many examples of how the public domain will be harmed by copyright
term extension, and how little public benefit will be provided.