Legislative History of CTEA (Summary Outline)


Dennis S. Karjala, May 18, 2002

Revised May 31, 2002


This outline represents my reading of the highlights of the three hearings that were held by Congress concerning the issue of copyright term extension. These hearings, including prepared statements and appendices, comprise some 1000 pages in hard copy. Some of the hearings considered issues other than term extension, and I have not attempted to get very much related to those issues into this outline. I made the outline as a guide to myself in writing about the term extension problem, so that I would have a clearer idea of just what was actually said to Congress and who said it. Depending on how the Supreme Court decides the Eldred case, some of this testimony may become relevant to legal issues, such as whether Congress could reasonably have believed that, for example, prospective extension would increase creation incentives. I decided to put the outline online, just in case it might prove useful to anyone else who is researching the legislative history of the Sonny Bono Act. I have done my best to summarize or quote accurately and without editorial comment (which was at times difficult to resist). I apologize for any errors and would appreciate being informed of any so that they can be corrected: dennis.karjala@asu.edu.

  

  

In addition to hearings held by the Copyright Office in 1993, three sets of hearings were held by congressional committees concerning copyright term extension bills that had been introduced in Congress. Hearings were held by the Senate Judiciary Committee on September 20, 1995, solely on the question of term extension. The House Judiciary Committee's Subcommittee on Courts and Intellectual Property held two (or three) hearings that involved term extension. Its 1995 hearings were held in Los Angeles on June 1, 1995, and in Washington, D.C. on July 13, 1995. The Subcommittee's 1997 hearings were held in Nashville on June 27, 1997, and are also online. To the extent URLs are available to me, I have also provided links to some of

the full testimony and prepared statements.


Note: Numbers in parentheticals after each entry indicate the page number of the record on which the point is made.



Hearing before the Committee on the Judiciary, United States Senate, 104th Cong., 1st Sess., on S. 483, Sept. 20, 1995, Serial No. J-104-46 (USGPO 1997)

 

I.         Opening Statement (Hatch) 1

            A.        EU and rule of the shorter term

                        1.         US large exporter of IP (2)

                        2.         Especially to Europe

            B.        People work to acquire money and property - only in IP do we take the bundle of property rights at a given time to give a legacy to the culture at large. (2)

                        1.         Authors expect their copyrights to be a resource to be passed to their children. (2)

                        2.         Copyrights now expire before the first generation of heirs has fully benefitted from them. (2)

                        3.         Names many popular songs that have gone, or are about to go, into the PD (2-3)

            C.        Average life span has increased

                        1.         Children are being born later in marriage (3)

                        2.         Copyrights on valuable works often expire “before they have served their purpose of allowing any author to pass their benefits on to . . . heirs.” (3)

            D.        Term extension necessary for preservation of American culture

                        1.         PD does not make works more plentiful

                        2.         Ownership gives an incentive to exploit, and gives an incentive to preserve. (3)

                        3.         Substantial investment required to convert to digital format must either be paid by taxpayer funds in PD works or by giving private parties the incentive to invest by allowing them to recoup their investment. (3)

 

II.        Prepared Statement of Senator Feinstein (4)

            A.        Most compelling reason is need for international harmonization (4)

            B.        Core copyright industries contributed around $239 billion to US economy in 1993, about 3% of GDP

            C.        1993 exports were about $46 billion (records, CDs, computer software, motion pictures, music, books, and artwork)

            D.        There is lots of piracy ($7.7 billion in 1994)(4)

            E.        Works now have a longer commercial life. (5)

 

III.       Panel Presenter Marybeth Peters, Register of Copyright (6)

            A.        Benefits

                        1.         No new incentive in going from life + 50 to life + 70 (6)

                        2.         Additional income could finance production and publication of new works (6)

            B.        Justice and fairness in giving American authors the same protection afforded their counterparts in Europe (6)

            C.        Harmonization is important and life + 70 will become the norm. (7)

            D.        Costs

                        1.         Will freeze the PD for 20 years (7)

                        2.         May negatively affect libraries and archives (7)

            E.        Prepared Statement (8)

                        1.         CO does not believe a case has been made that extension would diminish the creation of new works. (16)

                        2.         There will be some costs to the public, but they are minimal so we should favor authors. (16)

                        3.         Some authors or widows or widowers are outliving the current term, so an additional 20 years seems justified. (17)

                        4.         It seems only fair that the authors or owners of copyrights should benefit from the extended commercial lives of works. (18)

                                    a.         Increased income helps to subsidize creation of new works (18)

                                    b.         As long as c/r owners take the increased income and use it for the public benefit, such as new works, the constitutional goals are met. (18)

                        5.         Need a mechanism to make old works available where owner cannot be found, or use of old works to create new ones will face insurmountable hurdles (18)

                        6.         CTEA does not completely harmonize on term (20)

                        7.         The US is the largest market for US works, so it is difficult to estimate the costs of the CTEA and difficult to support it “on a pure economics analysis.” (22)

 

IV.      Panel Presenter Bruce A. Lehman, Assistant Secretary of Commerce and Commissioner of Patents and Trademarks (23)

            A.        We haven’t noticed any great harm from the last extension. (23)

            B.        Primary reason for the bill is international harmonization (23)

            C.        “And if one looks at 20th century works – and it is interesting – these are the very works now that we are talking about that would otherwise be going into the public domain also coincide with the period in which American culture and the American copyright-based industries started to develop world-wide prominence.” (24)

            D.        Prepared Statement (24)

                        1.         Primary reason for extending is to bring US law into conformity with the EU, because of rule of the shorter term. (25)

                        2.         Even though sound recording producers would not benefit in the EU, they “would still benefit in the United States buy getting an additional twenty years in which to exploit their sound recordings in the United States.” (25)

                        3.         Will contribute favorably to US trade balance (25)

                        4.         Ample evidence to show that once a work falls into the PD, it is neither cheaper nor more widely available than protected works. (25)

                        5.         Greater financial rewards offered by extension might serve as an incentive to create more new works, even if no particular author would create a work under a life plus 70 regime that he would not have created under a life plus 50 regime. (26)

                        6.         Extra 20 years might give an incentive to restore and digitize works that are about to fall into the PD. (26)

 

V.        Discussion after first panel (27)

            A.        Senator Feinstein: “I think the nitty-gritty of this problem is earlier access to the public domain versus the value of international harmonization.” (29)

            B.        Prepared Statement of Senator Charles E. Grassley (32)

                        1.         “I doubt that when an author sits down to create something, he or she is thinking about the royalties that will go to their great-great grandchildren.” (32)

            C.        Lehman: “It is very hard to have a market where there is no property, if you think about it. And we are not just talking about the incentive to create. We are talking about the incentive to take already existing works and reuse them in new formats, new technologies, and so on. And if you don’t have any property rights there, it is going to be very difficult to get the market incentives to do that and to take advantage of all the wonderful new technologies there are to get products to the American people . . . .” (34)

 

VI.      Panel Presenter Jack Valenti, President and CEO, Motion Picture Association of America (40)

            A.        No country in the US can compete with the US in movies (40)

            B.        Berne Convention permits rule of shorter term, placing US at a disadvantage (41)

            C.        “[I]f you do not own something, you are not going to protect it. The Library of Congress, the Librarian will tell you today that those prints in their possession which are soiled and haggard and need help are orphans, the ones that no one owns. They are public domain. [Para] Therefore, I think it is important to understand that public domain means nobody really cares because nobody owns it.” (41)

            D.        Prepared Statement (41)

                        1.         “Whatever work is not owned is a work that no one protects and preserve [sic]. The quality of the print is soon degraded. there is no one who will invest the funds for enhancement because there is no longer an incentive to rehabilitate and preserve something that anyone can offer for sale. A public domain work is an orphan. No one is responsible for its life. But everyone exploits its use, until that time certain when it becomes soiled and haggard, barren of its previous virtues.” (42)

                        2.         Congress can, without any harm to consumers, magnify revenue to c/r owners, modestly reduce our trade deficit, and encourage preservation and nourishment of the American film. (42)

 

VII.     Panel Presenter Alan Menken, Composer and Lyricist, Amsong (43)

            A.        Amsong goal is copyright protection for “a fair and reasonable period of time” (43)

                        1.         Many works fall into PD while still commercially successful. (44)

                        2.         Intent of our c/r law is to encourage creativity by providing protection for two generations of successors. (44)

                        3.         Families have no incentive to maintain PD works “in a format that is useful to the public” (45)

                        4.         Compares a copy of Moby Dick, priced at $12.95, to John Grisham’s the Chamber at $7.50 to show that no benefit from the absence of royalty payments is passed on to the consumer; compares for the same purpose a Garth Brooks No Fences CD at $13.99 to a Boston Baroque Orchestra recording of Mozart’s Requiem in D Minor at $2 more. (45)

            B.        Prepared Statement of Mary Rodgers, Amsong President (46)

                        1.         Current trade deficit is $43 billion, of which Amsong contributes about $50 million [unclear if this is total or foreign income to Amsong] (46)

                        2.         Amsong membership list (47)

                        3.         List of 1920 songs and musicals (49)

            C.        Americans owe it to the children of all our creators to guarantee them the greatest possible copyright protection. (53)

            D.        Prepared Statement of Alan Menken (53)

            E.        Prepared Statement of Bob Dylan (55)

                        1.         Always thought his songs would be the property of his children and grandchildren (55)

                        2.         Should give equivalent protection as EU (56)

            F.        Letter of Don Henley, Sept. 11, 1995 (56)

                        1.         Wants to protect his work from exploitation, abuse, and mutilation (56)

                        2.         US creators should be treated as favorably as those in other countries (56)

            G.        Prepared Statement of Carlos Santana, Songwriter (57)

                        1.         Never occurred to me that my songs would not be adequately protected (57)

                        2.         Some of my songs will likely fall into the PD during the lives of my children (57)

            H.        Letter from Stephen Sondheim, Sept. 13, 1995 (57)

                        1.         Current term no longer protects “for a reasonable period of time.” (57)

                        2.         A modest 20-year extension will further the purpose of encouraging American creativity. (58)

            I.         Prepared Statement of Mike Stoller, Songwriter, Amsong Member (58)

                        1.         US is playing “catch up” with the EU (58)

                        2.         C/r must encourage creativity, and a simple 20-year term extension will further this purpose (58)

            J.         Prepared Statement of Mrs. Henry Mancini (58)

                        1.         Husband intended his work to be a legacy for his children, who are actively involved in the business aspects of his catalogue. (58)

                        2.         Term extension relates to balance of trade and generating income tax revenues from creators and c/r owners. (59)

            K.        Prepared Statement of Ellen Donaldson (59)

                        1.         Threatened with loss “of our works (our livelihoods) to public domain while they still have a viable commercial life.” (59)

                        2.         Basic theory of copyright protection is life + two generations (59)

                        3.         Unfair that EU authors get more protection

                        4.         Extension will contribute to trade surplus

                        5.         Desperately need harmonization (59)

                        6.         Letter dated March 10, 1994 to Barbara Ringer (60)

                                    a.         Donaldson Publishing is built on Donaldson’s songs

                                    b.         Extension is imperative if company is to survive

                                    c.         “How ’Ya Gonna Keep ’Em Down on the Farm (After They’ve Seen Paree)”, scheduled to go into the PD at the end of 1994, is “still used, still there. After all these years.” (60)

                                    d.         This marks the “beginning of the losses of our most valuable, income-producing copyrights” my father’s music of the 20's” (61)

                                    e.         Many families with small catalogs quite literally live from [royalty] check to check simply to pay the rent. (62)

                                    f.         List of Donaldson songs that would go into the PD by 1997 (62)

            L.        Prepared Statement of Marsha Durham (63)

                        1.         Divorced parent, no child support, relying on income as paralegal (63)

                        2.         Family only recovered most copyrights after termination of the last 19 years (63)

            M.       Prepared Statement of Robert Lissauer (64)

                        1.         Popular music is the most familiar, renowned, and popular art form in America. (64)

                        2.         By not extending, we are giving the international community a free ride on our heritage. (64)

                        3.         We should protect the families of American creators. (64)

            N.        Prepared Statement of Shana Alexander, Writer and Daughter of Milton Ager, Songwriter (64)

                        1.         In a family like ours, IP is the only property. (64)

                        2.         It’s the US’s second largest export, so failure to protect it will result in an unfavorable trade balance. (64)

                        3.         It is unfair that lands and businesses can be handed down indefinitely but copyrights are arbitrarily cut after 75 years. (65)

            O.        Prepared Statement of E. Randol Schoenberg (65)

                        1.         It would be a great loss to our family (grandchildren of age 17-35) if they are unable to reap the benefits of their grandfather’s life’s work. (65)

                        2.         Term extension will be a further inspiration to those artists creating today whose works are also not likely to receive their due during their lifetimes. (66)

                        3.         Essay by Arnold Schoenberg (67)

                                    a.         Why should an author be deprived of his property for the benefit of pirates when all other forms of property can be inherited for centuries? (68)

 

VIII.    Panel Presenter Patrick Alger, President, Nashville Songwriters Association International (70)

            A.        Works are getting more valuable due to expanding technology, so term extension will serve as an even greater creative incentive. (70)

 

IX.      Panel Presenter Peter A. Jaszi, Professor, American University (71)

            A.        Cannot imagine that a writer will be “swayed to undertake a project by the mere possibility of 20 more years of posthumous royalties, available only in the highly unlikely event that the work retains popularity among generations of readers yet unborn.” (71-72)

            B.        Prepared Statement of Peter A. Jaszi (72)

            C.        Prepared Statement (minus introduction) of Dennis S. Karjala (78)

 

X.        Discussion after second panel (90)

            A.        Valenti: Film companies need their libraries to maintain their advantage in raising capital to create new films. (90)

            B.        Leahy: How can Congress provide that the public does benefit from the increased term by ensuring that extension profits are invested in additional creativity? (92)

            C.        Menken: Authors should receive the income from their works (92)

            D.        Alger: Must rely on authors’ integrity to donate money, or right to use works, voluntarily (92)

            E.        Valenti: We create jobs and the greater our revenues, the more solid our fiscal foundation (93). Also, we provide a means for people to escape the tedium of their lives. (93)

            F.        Jaszi: Shouldn’t confuse benefit to corporations with incentives to creation to which the Constitution looks (93)

            G.        Prepared Statement of Senator Christopher J. Dodd (93)

                        1.         Need more support for the arts

                        2.         Should consider extending copyright and recapturing NEA and NEH grants that prove successful (94)

            H.        Thompson: What does the bill mean to the average songwriter? (95)

            I.         Alger: The armor of c/r is the incentive to be a songwriter. Adding 20 years will give me, “as an average writer, creative incentive. I think any time you can strengthen the copyright law, I think the average writer . . . they are most interested in what is going to happen to copyright because they are the future professional songwriters.” (95)

            J.         Menken: Extension means “more than just income. It is, in fact, controlling the artistic future of our work” (99) I want my children and their children to be able to keep an archive to protect the use of my work. (99) This is an incentive. (99)

            K.        Alger: Some songs take time to become successful. It would not be unusual for me to leave unrecorded songs to my son, whose catalog will be very valuable with an additional 20 years. (99)

 

XI.      Questions and Answers (112)

            A.        Peters to Hatch (section 303) (112)

            B.        Peters to Brown (112)

                        1.         Ways of giving creators the benefit of extension (113)

                        2.         If life + 50 is constitutional, it’s hard to see why life + 70 is not (113)

                        3.         Contractual provisions concerning term (113-14)

                        4.         Implementation of EU Directive (114)

                        5.         Reciprocity (115)

                        6.         CO believe the PD has substantial value, but issue is whether the value of entering PD 20 years earlier outweighs the value of the incentives provided by an additional 20 years of c/r. (115)

            C.        Lehman to Hatch (116)

                        1.         Presumption of death under 302(e)(116)

            D.        Lehman to Brown (117)

                        1.         Opposed to giving the benefit to “creators” because in most cases they will have long since been dead, so the actual beneficiaries would not be the author but the author’s heirs. (117)

                        2.         If life + 50 is limited, so is life + 70 (117)

                        3.         The public frequently pays the same for works in the PD as it does for protected works. (118) The reason is that a publisher of an unprotected work has only a limited time to recoup costs before competition saturates the market, so a high price is charged. (118)

            E.        Valenti to Brown (119)

            F.        Menken to Brown (120)

                        1.         If we fall behind Europe in providing a substantial term, we deprive creators and their families of economic benefits and diminish taxable revenues from overseas sales. This will have a negative impact on American citizens deciding whether to pursue a career as a creator, and a long-term detrimental impact on creativity. (121)

                        2.         Any cost savings from PD status usually goes to distributors. Quality of lower-priced PD works offered to the public is in most instances inferior to that of works still protected by copyright. (122)

            G.        Alger to Brown (122)

                        1.         Armor of c/r provides the creative incentive for people who have chosen creativity as a career. Making it stronger benefits everyone. (123)

                        2.         “Even though the United States is the leading exporter of music in the world, we are still the largest user of our own music.” (So, more protection is important regardless of reciprocity.) (123)

            H.        Jaszi to Hatch and Brown (122-28)

 

XII.     Additional Submissions for the Record (128)

            A.        Joint Prepared Statement of the Coalition of Creators and Copyright Owners (128)

                        1.         International harmonization (132-34)

                        2.         Increased longevity of authors (134)

                        3.         Works have value for longer periods of time (135)

                        4.         Term extension is one of the most important incentives, and the better the incentives, the more creativity will result. (135)

                        5.         No evidence that PD status leads to significant exploitation by way of derivative works. (136)

                        6.         Nor are PD works any less expensive (136)

                                    a.         Quality edition of Shakespeare costs no less than copies of copyrighted works (136)

                                    b.         Movie theaters charge as much for movies based on PD works as for those based on copyrighted works (136)

                        7.         If the works are of value to users, they should pay for them. Also, the international benefits far outweigh the costs to domestic users. (136)

            B.        Prepared Statement of the American Society of Composers, Authors and Publishers (137)

                        1.         Balance of trade in c/r works is overwhelmingly in US favor (138)

                        2.         Estimates loss in Europe from performing rights revenues to be $30 million (138)

                        3.         We “can obtain 20 years of continued trade surplus for American creativity in the European market at no cost to ourselves, simply by enacting your legislation.” (139)

            C.        Resolution and Report of the ABA Section of Intellectual Property Law (139)

                        1.         Foreign payments for US works far exceed US payments for foreign works (140)

                        2.         Basic theory of copyright duration is that protection should exist for the life of the author and two succeeding generations. (140)

                        3.         Our copyright law should do everything possible to encourage American creativity. (141)

            D.        Prepared Statement of George David Weiss, President, The Songwriters Guild of America (141)

                        1.         US is “out of tune” internationally (141)

                        2.         The result is unfairness to US authors (142)

                        3.         We are a net exporter of music (142)

                        4.         Some songs do not become popular until after the composer has died, so extended term is necessary for them to leave a legacy to their children (142-43)

                        5.         Technological developments have extended the commercial lives of works (143)

                        6.         PD does not make quality copies of works available, because no one has an incentive to invest in them. (143)

                        7.         Nor are PD works available at lower prices (143)

            E.        Letter from Alison Fine, Author Services, Inc. (143)

                        1.         CTEA is very important to authors, copyright owners, and our overall economy as well as harmonization with the EU. (144)

                        2.         Letter to Senator Brown (144)

                                    a.         Unfair to allow EU c/r owners to benefit from their works in the US while US c/r owners would not get the benefit in the EU (144)

                                    b.         C/r should extend for at least two generations (144)

            F.        Letter dated October 3, 1995 to Senator Hatch from Kathryn Usitalo, President, Midwest Travel Writers Association (145)

                        1.         This bill is “an important step in protecting the works of U.S. writers here and abroad.” (145)

            G.        Prepared Statement of Daniel Abraham, Vice President for Legislation, Graphic Artists Guild (145)

                        1.         Windfall profits should go to the creators (146)

                        2.         No need to extend term for works for hire (146)

            H.        Letter dated Oct. 2, 1995, to Senator Hatch from Jonathan Tasini, President, National Writers Union (146)

                        1.         Extra 20 years should go to the authors’ heirs (147)

                        2.         Oppose proposal that “authors’ unilateral termination rights under the copyright act also be extended by 20 years” (147)

                        3.         Overriding issue is global harmonization (147)

            I.         Letter dated Oct. 2, 1995, to Senator Hatch from Dennis Karjala, Professor of Law, Arizona State University (147)

                        1.         Witness have not pointed to the portion of our favorable balance of trade is due to current blockbusters and what portion to old works, the real subject of the CTEA (148)

                        2.         Proposed Extension of Copyright Protection Harms the Public, Release signed by 50 copyright and intellectual property law professors (148)

            J.         Letter dated Oct. 5, 1995, to Senator Hatch from the American Library Association (151)

                        1.         Our organizations have not expressly opposed this legislation (151)

                        2.         Seek a right to use copyrighted works during the extra 20 years for noncommercial purposes not impinging on the market for such works (151-52)

            K.        Letter dated Oct. 2, 1995, to Senator Hatch from Larry Urbanski, Chairman, American Film Heritage Association (153)

                        1.         Commercial film archiving and film preservation has already stopped for works created after 1962, due to automatic renewal. (154)

                        2.         As many as 75% of films from the 1920's are “orphan works“ with no traceable ownership lineage. (154)

                        3.         Proposed amendment to deny extension to works made for hire (155)

                        4.         Film Preservation Study 1993 (157)

            L.        Letter dated Oct. 3, 1995 from John Belton, Society for Cinema Studies, to Troy Dow, Senate Judiciary Committee (160)

                        1.         Sound features like Jean Renoir’s The Southerner, Orson Welles’ The Stranger, Fritz Lang’s Scarlet Street, and Frank Capra’s It’s a Wonderful Life were neglected by their original copyright owners, but they have been preserved and marketed by commercial distributors. (160)

                        2.         Short films by Charlie Chaplin made between 1914 and 1917 have been preserved and reissued by for-profit companies. (160)

            M.       Prepared Statement of Edward P. Murphy, President and CEO, National Music Publishers’ Association, Inc. (162)

                        1.         There is a strong bond between music publishers and songwriters and composers (162)

                        2.         The trade arguments are overwhelmingly persuasive (162)

                        3.         Urges repeal of La Cienaga (163)

            N.        Statement of Professor William Patry (164)

                        1.         Bill does not give benefits to authors but rather to those who purchased the copyright from authors

                        2.         Should provide termination rights for all authors with respect to the added 20 years




Hearings Before the Subcommittee on Courts and Intellectual Property of the Committee on the Judiciary, House of Representatives, 104th Cong., 1st Sess., on H.R. 989, H.R. 1248, and H.R. 1734, Copyright Term, Film Labeling, and Film Preservation Legislation June 1 & July 13, 1995, Serial No. 53 (H521-36)(USGPO 1996), ISBN 0-16-052625-6

 

I.         Opening Statement, Chairman Carlos Moorhead, June 1, 1995

            A.        Main reasons for the legislation are “fairness and economics” (2)

            B.        American creators will have 20 years less protection than their counterparts in Europe. (2)

            C.        H.R. 989 (4)

            D.        H.R. 1248 (8)

            E.        H.R. 1734 (24)

 

II.        Witnesses

            A.        Jack Valenti, President and CEO, MPAA (50)

                        1.         Prepared Statement

            B.        Marilyn Bergman, President and CEO, ASCAP (56)

                        1.         Necessary as a matter of international trade (57)

                        2.         It’s the right thing to do to encourage creativity and protect IP (57)

                        3.         Extension of term will serve to encourage music creators, for whom the prospect of leaving an asset of their own making to their children and grandchildren is a powerful incentive. (57)

                        4.         We can obtain 20 years of continued trade surplus in the European market at no cost to ourselves by enacting this legislation. (58)

                        5.         Prepared Statement of Marilyn Bergman

                                    a.         Last year ASCAP sent $27 million abroad but we received $103 million from foreign performances (61)

            C.        Edward Richmond, President, Association of Moving Image Archivists (64)

                        1.         Discusses H.R. 1734

                        2.         Prepared Statement (67)

            D.        Edward P. Murphy, President and CEO, National Music Publishers’ Association, Inc. (74)

                        1.         Need to harmonize with EU because of rule of shorter term (75)

                        2.         Should extend publishers’ rights under transfer agreements beyond the 35 years now afforded. (77)

                        3.         Urges temporary moratorium on copyright expirations in case the bill is delayed (77)

                        4.         Prepared Statement (78)(similar)

 

III.       Discussion (86)

            A.        Bergman: PD works cost the consumer no less, and they are not promoted or protected. (86)

            B.        Berman: Nobody is testifying against the copyright extension, and I think the trade arguments are compelling as well as need for rewarding creators and incentivizing creators and their heirs for a reasonable period.

            C.        Discussion (with Sonny Bono questioning) of relative rights of composers and music publishers (90-93)

            D.        Discussion (with Rep. Becerra questioning) concerning termination rights with respect to the extra 20 years (97-102)

            E.        Becerra: Can we expect that in another 10, 15, 20 years we will be hearing from you all again to extend another 15 or 20 years because people’s life expectancy has grown and because Europe is doing something different as well? (102)

            F.        Bergman: If the trade argument is valid for life + 70, it maybe someday it will be valid for life + 90 (102-03)

 

IV.      Second Panel (105)

            A.        Martha Coolidge, Co-Chair, Directors Guild, America’s President’s Committee (106)

                        1.         Speaks in favor of H.R. 1248 (Film Disclosure Act of 1995)(106)

                        2.         Prepared Statement (109)

                                    a.         Although US is world’s leading copyright exporter, too often we follow along rather than lead. (109)

                                    b.         Unfair that EU authors should enjoy a greater incentive than US authors (109)

                        3.         Mrs. Henry Mancini (112)(urges passing legislation that extends the copyright law)

            B.        Jeffrey P Eves, President, Video Software Sealers Association (113)

                        1.         Opposes H.R. 1248

                        2.         Prepared Statement (116)

                                    a.         America’s copyright system is thriving (122)

                                    b.         Our system establishes an economic framework encouraging creation and dissemination of new works and provides certainty and predictability in its business arrangements (124)

            C.        Michael Weller, Playwright and Screenwriter (132)

                        1.         An artist’s work is his heritage, to provide for his children and grandchildren (133)

                        2.         H.R. 989 is about property – how soon it can be taken away from us, and an extra 20 years is not very long. (134)

                        3.         Prepared Statement (135)

            D.        Judith M Saffer, Assistant General Counsel, BMI

                        1.         No indication that the PD benefits consumers (141)

                        2.         All Americans will win “in jobs, in trade, in the balance of payments flowing into the United States from intellectual property.” (142)

                        3.         Prepared Statement (142)

 

V.        Discussion (143)

            A.        Discussion of film labeling (143-47)

            B.        Saffer (responding to question from Rep. Conyers): Constitution does not say what a limited time is (147)

            C.        Discussion of film editing (148-54)

 

VI.      Opening Statements, July 13, 1995 (155)

            A.        Moorhead:

                        1.         1976 Act extension intended to bring US into compliance with Berne and to assure the author and his heirs of their “fair economic benefits derived from the author’s work”

                        2.         Neither of these objectives is currently being met. (155)

                        3.         EU action has serious trade implications for the US (155)

                        4.         Main reasons for extension are “fairness and economics” (156)

            B.        Sensenbrenner: I will not look favorably on this legislation unless there is action on H.R. 789 (music licensing fees). (156)

 

VII.     First Panel of Witnesses (157)

            A.        Marybeth Peters, Register of Copyrights (157)

                        1.         “[I]t is difficult to see how moving from a term of life-plus-50 to lilfe-plus-70 will encourage more authors to write” but it could provide additional income that would finance the production and publication of new works. (158)

                        2.         American authors should be given the same protection afforded their counterparts in Europe. (158)

                        3.         CO supports H.R. 989 because (a) need to harmonize and (b) as leading creator of copyrighted works we should set an example for other countries and not wait until increased term is forced upon us. (159)

                        4.         There will be negative domestic impact, such as freezing entry into the PD for 20 years. (159)

                        5.         Prepared Statement (161)

            B.        Charlene Barshefsky, Principal Deputy, U.S. Trade Representative (205)

                        1.         CTEA will have a positive effect on our balance of trade (205)

                        2.         Prepared Statement (207)

                                    a.         CTEA will allow many US authors to garner royalties in EU for an additional 20 years. (210)

                                    b.         MPAA estimates that term extension will result in $1 million revenue increase from international sources for 2000, a $3 million increase for 2010 and $160-200 million for 2020. (211) [Do they really believe that in 2020, income from films prior to 1945 will be generating those kinds of revenues?]

            C.        Bruce Lehman, Assistant Secretary of Commerce and Commissioner of Patents and Trademarks (212)

                        1.         Principal reason for extension is to enable harmonization with EU (212)

                        2.         Legislation will have immediate impact on works from between 1920 and 1940, a period in which America’s copyright industries really came into global dominance. (212)

                        3.         Little evidence that consumer pays a great deal less for PD works (213)

                        4.         Prepared Statement (214)

                                    a.         “It is unlikely that an author would create a new work solely because the term was life-plus-seventy years but that very same author would not create a new work because the term would be only life-plus-fifty years. This, however, does not mean that the potential of greater rewards provided by a copyright term extension would not be an incentive for some authors to create more new works for the public to enjoy.” (218)

                                    b.         The extra 20 years allows increases in exposure of their works, resulting in greater financial return to authors that, in turn, encourages the creation of more new works. (219)

                                    c.         Extension will encourage c/r owners to restore and digitize works that might otherwise deteriorate over time. (219)

 

VIII.    Discussion (221)

            A.        Prepared Statement of Patricia Schroeder (224)

                        1.         Although not complete harmonization, without extension US c/r owners will receive less protection in Europe. (224)

                        2.         Passage will benefit US trade balance (224)

            B.        Lehman (responding to Schroeder question) discusses other areas for harmonization, such as sound recordings, rental rights, and databases (226)

 

IX.      Quincy Jones, Songwriter and member of Amsong (233)

            A.        US authors will get less protection in the EU (234)

            B.        I have a 2-year-old and my children are entitled to the same rights a children of yesteryear born to parents in their twenties (235)

            C.        Compares a book by Tolstoy to one by John Grisham and notes that the Tolstoy book cost more; compares a Beethoven CD to a Pearl Jam CD and notes that the Beethoven is no less expensive (235)

            D.        Economic factors mandate an extension (236)

            E.        Prepared Statement (237)

            F.        Prepared Statement of Bob Dylan (240)(same as to Senate)

            G.        Prepared Statement of Don Henley (241)(same as to Senate)

            H.        Prepared Statement of Alan Menken (243)

                        1.         I would like maximum possible copyright protection (243)

                        2.         Basic theory of c/r duration is protection for author’s life plus two generations (243)

                        3.         American authors won’t benefit from EU extended term unless we extend (243)

            I.         Prepared Statement of Stephen Sondheim (244)(same as to Senate)

            J.         Prepared Statement of Mrs. Henry Mancini (246)(same as to Senate at 58)

            K.        Prepared Statement of Ellen Donaldson (247)(same as to Senate at 59)

            L.        Prepared Statement of E. Randol Schoenberg (264)(same as to Senate at 65)

            M.       Prepared Statement of Marsha Durham (268)(same as to Senate at 63)

            N.        Prepared Statement of Betty Kern Miller (270)

                        1.         Should pass term extension because of economic considerations and because of lack of control when copyrights are permitted to fall into the PD (271)

                        2.         Copyright to “Showboat” is about to expire, thereby “ending our ability to control the quality of its many productions.” (271)

            O.        Prepared Statement of Mary Ellin Barrett, daughter of Irving Berlin (272)

                        1.         The question is “what is fair and right for the creative people of this country, and their heirs.” (272)

                        2.         Every year now more songs Irving Berlin hoped to leave as a legacy become public property. (272)

                        3.         Basic principle of c/r protection is life of the author plus two succeeding generations. (272)

                        4.         Authors and their families “will indeed suffer if works fall into the public domain while still commercially viable. Someone - not the public - will be making money out of another person’s property.” (272)

                        5.         US authors won’t benefit from extension in EU unless we extend (273)

                        6.         Non-creative, non-intellectual property can be handed down indefinitely; why shouldn’t businesses based on creativity have a similar right, or at least life of the author plus two generations? (273)

 

X.        Discussion (274)

 

XI.      Third Panel (280)

            A.        John Belton, Professor of English, Rutgers (281)

                        1.         Motion picture industry looks to a very short playoff of its properties, from 2-5 years; after that, any money a picture makes is pure gravy. (282)

                        2.         Works in the PD can be a very valuable resource for new creations (282)

                        3.         American film industry has been a notoriously poor custodian of its copyright materials (283)

                        4.         Prepared Statement (285)

                                    a.         Extension can have no impact as a stimulus for creativity in terms of existing works (286)

                                    b.         It is not clear that the change from 75 to 95 will measurably increase creativity in works made for hire, because they must recover their costs and make a profit in 2-5 years (286)

            B.        Dennis S. Karjala, Professor of Law, Arizona State (290)

                        1.         Our dominance is in current works of authorship, not works from the 1920's and 1930's that are the true focus of the legislation (290)

                        2.         This is not a conflict between Europe and the US but between the interest of the public in a richer PD and the desires of c/r owners to control the economic exploitation of the works that remain in their hands. (291)

                        3.         Extension would supply no additional incentives to the creation of new works (291)

                        4.         The bill does not harmonize, even as to term, and it is in any event not unfair that a work enter the PD 50 years after the death of the author (291)

                        5.         Prepared Statement (292)

            C.        William S. Patry, Associate Professor of Law, Cardozo School of Law (312)

                        1.         This bill does not achieve its laudable objectives of creating parity between European and US authors or assuring the author and his heirs of the fair economic benefits derived from the author’s work (312)

                        2.         The bill should grant the extra 20 years to the author or his family (312)

                        3.         Prepared Statement (316)

            D.        Jerome H. Reichman, Professor of Law, Vanderbilt (355)

                        1.         We should adopt the rule of the shorter term (356)

                        2.         A 95-year term for works for hire does nothing to harmonize and is unnecessary to stimulate investment in the cultural industries (356)

                        3.         Prepared Statement (359)

 

XII.     Discussion (408)

            A.        Copyright transfer contracts and termination (409-11)

            B.        Karjala: Testimony that extension involved de minimis costs is factually wrong; we should have a study of cost before pushing ahead. (417)

            C.        Hoke: Creating an additional incentive with extension doesn’t hold up very well. A more compelling reason is that “there is a value to intangible property which is intellectually created, which is unique, and which is very special. And, therefore, you’re saying that talent, and the fruit of talent specifically, shall be protected and it’s value will be protected by these Laws.” (417-18)

            D.        Hoke: “I think it’s clear that we are creating with this bill new wealth that doesn’t exist today. We’re creating money, capital, wealth, property that doesn’t exist, and we’re creating a lot of it. . . . I have no interest in creating new wealth for other than the creators, that that [sic] is the talent, the creators of the property itself.” (419)

            E.        Hoke: “I don’t think there’s anything magical about life-plus-70 or life-plus-50, but I think it’s a sham to try to hang on the theory that we’re creating incentives.” (420) “But I do think it’s very easy to justify the additional time by saying, look, this was valuable when it was created and it’s purely arbitrary that we’re saying it’s no longer valuable at the end of 50 years past the death of an author. So that’s the reason.” (420)

 

XIII.    Appendix (423)

            A.        Librarian of Congress, Redefining Film Preservation, A National Plan (1994)(423)

            B.        The American Cinema Editors and The Motion Picture Editors Guild, A Position Paper on The Film Disclosure Act of 1995 (503)

            C.        Resolution of ABA Section of Intellectual Property in support of H.R. 989 (509)

                        1.         EU rule of the shorter term has made term extension an essential element in safeguarding our national economic security. (511-12)

                        2.         Basic theory of copyright duration is that protection should exist for the life of the author and two succeeding generations. (512)

                        3.         Our c/r law should do everything possible to encourage creativity, especially American creativity, and a modest term extension will do so. (512)

            D.        Letter dated May 31, 1995, from James Stewart stating support for the film disclosure act. (513)

            E.        Release dated May 31, 1995 of Screen Actors Guild in support of Theatrical Motion Picture Authorship Act and Film Labeling Act. (514)

            F.        Statement of Judith M. Saffer, Assistant General Counsel, BMI (517)

                        1.         Extension will further the general purpose of copyright to encourage creativity and protect the rights of authors. (517)

                        2.         Extension would result in significant economic benefits (517)

            G.        Memorandum dated July 10, 1995 from Carlos Moorhead to the Subcommittee concerning the July 13 hearings         

            H.        Memorandum dated Aug. 2, 1995, from Mary Rodgers to AmSong members (524) reporting on the July 13 hearings

            I.         Statement of Daniel Abraham, Graphic Artists Guild (531)

                        1.         Support extension but extra term should revert to original creators (531)

                        2.         Opposes extension for works made for hire (532)

            J.         Statements submitted by MPAA from 1993 Library of Congress hearing on film preservation (534)

            K.        Letter from Douglas B. Killings dated July 16, 1995, to Carlos Moorhead, opposing H.R. 989 (574)

                        1.         A small number of works are still commercially viable, but thousands more would be tied up, of use to no one (574)

                        2.         H.R. 989 will weaken the public domain (574)

                        3.         Will the estates of Hemingway and Gershwin be back in 20 years? (575)

            L.        Statement of Michael Les Benedict, Professor of History, Ohio State University urging keeping the section 303 date at Dec. 31, 2002 (576)

            M.       Letter dated July 12, 1995, from James H. Billington, Librarian of Congress, to the Chairman urging concern for libraries (578)

            N.        Letter dated June 28, 1995, from Paul Goldstein, Professor of Law, Stanford Law School, to Jack Valenti (581)

                        1.         Opponents of term extension have properly discounted to present value the future returns to authors, but they should also note that the social costs so far in the future should be discounted, too and they are equally minimal (582)[N.B. He completely ignores retroactive extension in this argument.]

                        2.         By increasing the value of film libraries, extension can give film companies revenues to produce new films during the extension period (583)

                        3.         It is plausible that exploitation of PD works will result in comparable, or even higher, prices to consumers (584)

                        4.         Exploiters of the PD can be expected to supply qualitatively inferior products to the originals they copy. (584)

                        5.         Problem of transaction costs may at least be partially be resolved by the economic incentives that owners of valuable works have to keep their works easily accessible for exploitation. (586)

            O.        Memorandum dated July 10, 1995 from Shira Perlmutter to Jack Valenti (588)

                        1.         International trade issue drives the pending bills (589)

                        2.         Authors will have more incentive to invest time and money in producing new works because the opportunity for return will be greater. (590)

                                    a.         For enduring works, the extra 20 years makes a real difference in total return (591)

                                    b.         Many c/r owners own multiple works, so the cumulative sum, which can be invested in further creation, can be significant. (591)

                                    c.         Present value of termination rights may be small compared to the total value of the c/r, but it may be significant. (592)

                                    d.         For existing works, authors will receive more money from existing works, giving them the means to create new ones. (592)

                                    e.         Congress may adopt a single rule applicable to all works, where the rule as a whole provides creation incentives. (592)

                        3.         Dissemination will be improved (593)

                                    a.         During the extra 20 years, c/r owners will have a greater incentive to disseminate their works in high-quality form if they can retain control and exclude free riders. (593)

                                    b.         Works like old films require substantial expenditures to update them for use with modern technology, so term extension should give an incentive for c/r owners to supply a greater variety of old movies in better condition. (593)

                        4.         Balance of trade will improve (594)

                        5.         International standardization (594)

                                    a.         Different terms in different countries can cause difficulties for multiple transnational distribution. (594-95)

                                    b.         This problem is even more pressing with the development of digital technology. (596)

                        6.         Not clear that the public always pays significantly less for PD works. (598)

                        7.         If more works are created than chilled during a term of life + 50, it is unclear why that ratio would be reversed during the next 20 years. (599)

                                    a.         Opponents of term extension omit one “critical fact” from the balance, which is that DW authors will also have the additional incentive resulting from the longer term

                                    b.         The DW issue is particularly negligible for films, which rarely serve as the underlying material for new DWs (600)

            P.        Arthur R. Miller, Commentary, Extending Copyrights Preserves U.S. Culture, Billboard, 1/14/95 (included in the Congressional Record along with Senator Hatch’s introduction of S.683 (602)

                        1.         Not to extend would be unfair to US authors

                        2.         IP exports are growing at a tremendous rate (602)

                        3.         Need strong copyright to fight piracy, and term extension allows us to demand stronger protection elsewhere (602)

                        4.         Works become less available when they enter the PD, at least in a form that does credit to the original (602)

            Q.        Joint Statement of the Coalition of Creators and Copyright Owners, June 9, 1995 in support of H.R. 989 (603)

                        1.         EU action makes term extension in the US “an essential element” in safeguarding our national economic security. (610)

                        2.         It will strengthen our position in trade negotiations when we seek stronger protection. (616)

                        3.         International harmonization calls for term extension (618)

                        4.         Increase in longevity justifies term extension (626)

                                    a.         Must realize that life + 50 was the international norm at the beginning of the 20th century, when life expectancy was 52 (627)

                                    b.         That authors are also living longer is not dispositive against extending, because life + is also designed to protect the next two generations (628)

                        5.         Works now have greater value for longer periods (630)

                        6.         Works protected by c/r are more likely to be made widely available in a form that the public wants than PD works (633)

                        7.         No evidence that PD works are less expensive for the consumer (634)

                        8.         Extending existing terms will encourage investment in those works (635)

            R.        Letter Dated June 2, 1995, from Michael K. Kirk, Executive Director, AIPLA, to Carlos Moorhead in support of H.R. 989 (638)

                        1.         Extending the term will provide increased incentives for the creation of works of authorship (638)

                        2.         Rule of the shorter term could harm revenues from Europe (639)

                        3.         Resolution of AIPLA in support of H.R. 989 (639)

            S.        Letter (undated) from Al Hendrix to Carlos Moorhead urging that rights to the extra 20 years be given to authors (640)

            T.        Lisa M. Brownlee, The EC Term Directive, the Uruguay Round Agreements Act, and the Proposed U.S Copyright Term Extension Act of 1995: Recent Changes in U.S. and European Laws Impact Duration of Copyright (641)

                        1.         Large term discrepancies will still exist between the EU and the US for pre-1978 works (645)

                        2.         Extension would lessen the existing term discrepancies as to pre-1978 works (666)

                        3.         Extension should increase the incentive to distribute existing works (668)

                        4.         Author has greater incentive to produce DWs if the underlying works are protected (669)

            U.        Letter dated 6/30/95 from Brandon Marsalis to “Member of Congress” urging that extension benefit authors and not music publishers (675)

            V.        Letter dated July 11, 1995, from Robert L. Oakley, American Association of Law Libraries, expressing concern that H.R. 989 could handicap preservation efforts and preclude access to works of little commercial value and urging that the final legislation adequately protect the vital interests of the nation’s libraries and users. (676)

            W.       Letter dated July 16, 1995, from Sara L. Johnson, to Carlos Moorhead, generally opposing H.R. 989 and particularly noting that § 304(b) as then proposed might revive expired copyrights. (680)


Hearing Before the Subcommittee on Courts and Intellectual Property of the Committee on the Judiciary, House of Representatives, 105th Cong., 1st Sess., Pre-1978 Distribution of Recordings Containing Musical Compositions; Copyright Term Extension; and Copyright per Program Licenses, June 27, 1997, Serial No. 39 (43-666 CC)(USGPO 1997)

 

I.         Opening Statements

            A.        Chairman Coble (2)

                        1.         The main reasons for term extension are fairness and economics (3)

                        2.         Americans will have less protection in Europe and the US will lose export revenues (3)

            B.        Mr. Delahunt (4)

                        1.         Term extension is fundamentally a question of fairness (5)

                        2.         Those who enrich our culture are no less entitled to be compensated than those who create more tangible products (5)

            C.        Mr. Sensenbrenner (discussing broadcast licensing) (5)

            D.        Mr. Clement (8)

 

II.        First Panel

            A.        Paul Williams, Songwriter, on behalf of ASCAP and National Music Publishers’ Association, urging correction of the La Cienega decision (10)

            B.        Ed Murphy, president and CEO, National Music Publishers Association (15)

                        1.         Urges correction of La Cienega

                        2.         NMPA gives unqualified endorsement to term extension (popularity of US music, US should lead in strengthening copyright, EU rule of the shorter term)(21)

            C.        Discussion (La Cienega)(22)

 

III.       Second Panel

            A.        Julius Epstein, screenwriter (27)

                        1.         Motion picture writers should get some of the benefit of term extension (29)

                        2.         Prepared Statement (29)

            B.        Frances Preston, President and CEO of BMI (31)

                        1.         Copyright is one of our top exports (32)

                        2.         Only fair that creators and owners of IP enjoy the same benefits from their life’s work as do other property owners (32)

                        3.         It is important to grant this extended incentive to our creators and composers (32)

                        4.         Prepared Statement (33)

            C.        George David Weiss, Songwriter, President, Songwriters Guild of America (35)

                        1.         Term extension is a matter of equity, economic self-interest and cultural self-preservation (36)

                        2.         Without it, we will lose substantial foreign revenues (36)

                        3.         To foster creativity, writers need confidence that our system will allow them to support their families while they are alive and after they are gone (36)

                                    a.         Current term no longer covers two succeeding generations (36)

                                    b.         Late bloomers may be discovered too late for the creators themselves, but in time to nourish their heirs if the term is long enough (36)

                        4.         Prepared Statement (37)(similar to 1995 Senate statement)

            D.        Fritz Attaway, Senior VP and general counsel, MPAA (46)

                        1.         Core c/r industries account for 3.7% of GDP (46)

                        2.         Life + 70 is the emerging world standard (46)

                        3.         Rule of the shorter term hurts US authors in Europe (46)

                        4.         Prepared Statement (47)

                                    a.         Absent copyright, movies, books, songs, etc. have no value (48)

                                    b.         C/r gives owners the incentive to create works and a continuing incentive to distribute them.

            E.        Jerome Reichman, Professor, Vanderbilt School of Law (48)

                        1.         We must be cautious in discussing harmonization, because our laws and theirs are still very different, particularly as regards works made for hire (49)

                        2.         US should adopt rule of the shorter term (50)

                        3.         Term extension is good if its benefits go to living authors or their heirs and not their publishers (50)

                        4.         Should not extend term for works made for hire (50)

                        5.         J.H. Reichman, The Duration of Copyright and the Limits of Cultural Policy, 14 Cardozo Arts & Ent. L.J. 53 (1996)(52)

            F.        Discussion (83)

                        1.         Attaway (responding to question from Coble): “It could be that in 2020, circumstances would suggest that an additional term be provided. I think it is a balance, and I think the world is coming to the conclusion that the correct balance today is life plus 70, and that is what I urge you to enact.” (83)

                        2.         Weiss (responding to Coble question whether he wouldn’t have written some of his songs without a life + 70 term): “I think you have to go back to the beginning of when a young person is considering what he or she want [sic] to do in life . . . . One of the things that a young person inevitably will consider is, will I be able to earn a living at whatever choice I make? Not only for me, but for my spouse, my children and my grandchildren. If a young person sees that the copyright laws of our country are not protecting him and his children and grandchildren, he may very well decide on a different profession. . . .” (83-84)

                        3.         Discussion of rights of screenwriters (84)

 

IV.      Third Panel

            A.        Ed Atsinger, President and CEO, Salem Communications Corp. (operator of 44 radio stations)(92)

                        1.         Need fair, per program licenses (92)

                        2.         Prepared Statement (94)

            B.        Dirk Hallemeier, partner, Radio Property Ventures (operator of three religious format radio stations)(104)

                        1.         Music licensing system in the US perpetuates inequity and unfair practices by performing rights organizations (104)

                        2.         Prepared Statement (106)

            C.        Bob Sterling, Coalition for the Protection of America’s Gospel Music Heritage (108)

                        1.         Performing rights organizations are only being used as scarecrows here; a congressionally mandated license for Christian music will be paid for by the writers of that music (109)

                        2.         Prepared Statement (110)

            D.        Discussion (121)

 

V.        Appendix (131)

            A.        Prepared Statement of Daniel Abraham, VP Public Affairs, Graphic Artists Guild (131)

                        1.         Corporate authors get a higher proportionate increase in term (131)

                        2.         US should move to a true life + 70 system (132)

            B.        Letter dated July 17, 1997, from Marvin L. Berenson, BMI, to Howard Coble, on religious broadcasting (133)

            C.        Prepared Statement of Hoagy Bix Carmichael, President, AmSong, Inc. (133)

                        1.         C/r term is woefully inadequate (133)

                        2.         Our authors are not guaranteed equivalent protection in foreign countries (133)

                        3.         Fail to pass term extension will have a grave effect on the balance of trade (134)

                        4.         No savings are passed on to the consumer when works fall into the PD (134)

            D.        Letter dated June 2, 1997, from Jack Valenti to Howard Coble on whether creative participants in pre-1960 movies would share in the proceeds resulting from the extension (134)

            E.        Marvin Berenson, general counsel, BMI (present to respond to questions)