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Comments of Dennis S. Karjala on Senator Hatch's remarks (as well as on Senator Feinstein's and the Billboard article by Professor Arthur Miller introduced into the record by Senator Feinstein) are given below .
By Mr. HATCH (for himself, Mrs. Feinstein,and Mr. Thompson):
S. 483. A bill to amend the provisions of title 17, United States Code, with respect to the duration of copyright, and for other purposes; to the Committee on the Judiciary.
THE COPYRIGHT TERM EXTENSION ACT OF 1995
Mr. HATCH. Mr. President, Congress has in recent years passed many significant copyright measures, but it is a rare occasion when we address the fundamental aspects of copyright protection, such as the nature of the works protected, the scope of rights recognized, or the duration of copyright.
Still, from time to time, it becomes clear that fundamental change is needed. I believe we are now at such a point with respect to the question of whether the current term of copyright adequately protects the interests of authors and the related question of whether the term of protection continues to provide a sufficient incentive for the creation of new works of authorship.
The current term of copyright is, in my view, inadequate to perform its historic functions of spurring creativity and protecting authors. Thus, I am filing today the Copyright Term Extension Act of 1995, which has the general purpose of increasing existing copyright terms by the addition of a further 20 years of protection. I am pleased to be joined in this effort by my colleagues on the Senate Judiciary Committee, Senator Feinstein of California and Senator Thompson of Tennessee.
Mr. President, Congress has protected copyrights since the very first Congress, and the entire history of our copyright laws has been a history of ever increasing protection, both with respect to the nature of works protected, as well as with respect to the duration of protection. Still, in over 200 years, the copyright term has only been extended on three prior occasions.
In 1790, the first Congress set the maximum term of copyright protection at 28 years-a 14-year initial period that could be renewed for an additional 14 years. In 1831, we extended that period by 14 years-a 28-year initial period that could be renewed for an additional 14 years. In 1909, the major copyright reform act of that era extended the maximum term of copyright to 56 years-a 28-year initial term that could be renewed for an additional 28 years.
Most recently, the Copyright Act of 1976 fundamentally altered the way in which we measure copyright by protecting works throughout the life of their creator plus an additional 50 years. In so doing, we adopted the prevailing international standard of protection-a standard that was first recommended by the members of the Berne Convention for the Protection of Literary and Artistic Works in the Act of Berlin of November 13, 1908, and that was made mandatory for members of the Berne Union by the Act of Brussels of June 26, 1948.
For existing works, the Copyright Act of 1976 created a maximum term of 75 years of protection-a 34-percent increase in term of protection over the preceding maximum of 56 years. The 20-year increase in protection that the Copyright Extension Act of 1995 provides for existing works is a far more modest extension of copyright than that which we adopted in 1976, or, in fact, that which was implemented by the two previous congressional extensions of copyright term. [*S3391]
Every work created after the effective date of the Copyright Term Extension Act will be prospectively protected for the remainder of the author's life and for 70 years thereafter. Works in existence on that date will receive the identical protection, if their author is still living. As for the works of authors already decreased, my bill provides an additional 20 years of protection; provided, that the works have not, on the effective date of the bill, already gone into the public domain.
Those works whose term of protection under the current Copyright Act is not tied to the life of an author but is a fixed term of years, such as works made for hire, will also receive an additional 20 years of protection. Where they are protected for 75 years under present law, they will be protected for 95 years under the provisions of the Copyright Term Extension Act.
By providing this across-the-board extension of copyright for an additional 20 years, I believe that authors will reap the full benefits to which they are entitled from the exploitation of their creative works. In addition, there are significant trade benefits to be obtained by extending copyright in the United States to bring our law into conformity with the longer copyright term enjoyed by authors in other nations.
As I noted above, our current basic copyright term of life plus 50 years is prevailing international standard, one now also applicable to the members of the World Trade Organization through the implementation of the Agreement on the Trade Related Aspects of Intellectual Property Protection (TRIPS). Despite the nearly universal adoption of the life-plus-50-year term of copyright, many have observed that the term itself, particularly the decision to give significance to 50 years, has achieved dominance perhaps more through imitation and acceptance than through an analytical belief that the life-plus-50-year term represents the ideal period of protection needed to appropriately reward and inspire creative activity. See, that is, Ricketson, ''The Berne Convention for the protection of literary and artistic works: 1886-1986'' p. 321.
While the (Berne Convention's) prescriptions as to duration are quite precise, there has never been any real effort made to justify why, or to explain how, these terms have come to be adopted * * *
Even though the United States adopted the life-plus-50-year term of copyright only 19 years ago, and even though that term of protection has a nearly century-old history in the international arena, I do not believe that it should be accepted uncritically as an ideal or even sufficient measurement of the most appropriate duration for copyright term. Instead, we should be aware of the many nations that have historically provided longer terms of copyright as well as the recent developments to extend copyright in Europe. Also, we need to examine the real-life experience of creators, their reasonable expectations for exploiting their works, and the concerns and views of the descendants, heirs, and others whom the postmortem protection of copyright was designed to benefit. [See Comment 1 of Dennis Karjala below]
Among the European nations, Germany and Spain have for some time recognized respectively terms of life plus 70 pears and life plus 80 years, and Portugal has for much of this century provided a perpetual term of protection. In addition, it is common for bilateral agreements relating to copyright protection among particular nations to provide for terms of protection in excess of the life-plus-50-year standard.
As far as a general reconsideration of the life-plus-50-year term, it should be noted that as long ago as 1961 the permanent committee of the Berne Union began the process of reexamining the sufficiency of that term of protection. At the Stockholm Conference of 1967, a proposal to increase the copyright term to life plus 80 years was debated though not adopted. It is, however, easy to speculate that the failure to increase copyright term at that time may have been disproportionately influenced by the contemporaneous efforts in the United States to adopt a copyright act compatible with the existing minimum requirements of the Berne Convention. An extension of the minimum term at that time would, however meritorious, surely have made more difficult the eventual adoption of the Copyright Act of 1976 in the United States.
In the intervening years, the inadequacy of the life-plus-50-year term has become more apparent, and nations have acted to increase the duration of copyright. Most significantly, the nations of the European Union, pursuant to an October 1993, directive of the Council of the European Communities, are committed to reaching a life-plus-70-minimum term of protection by July of this year. It is thus fair to say that for a significant portion of the developed world-for the nations, moreover, that have traditionally been in the forefront of protecting authors' rights-the term of life-plus-70 has gained a broad acceptance.
I am pleased to be the author of the bill that I hope will bring American copyright law into accord with this developing international understanding as to the appropriate duration of copyright.
The benefits of extending copyright by 20 years will be felt in many areas. The vast majority of our European and other trading partners have obligated themselves to extend to our authors the full protection of their copyright laws-at least to the extent that America recognizes complementary rights. Of course, I should add that with respect to the minimum requirements for copyright protection, national treatment for U.S. authors is mandated by the Berne Convention as well as by the TRIPS agreement. But copyright protections in excess of the Berne minima will not be freely granted to U.S. authors on the basis of national treatment. Instead, the option allowed by the Berne Convention's ''role of the shorter term'' will no doubt be often employed by foreign states with the result that American works will be protected in those nations only to the extent that the works of their authors are protected in America-article 7(1) of the EC directive explicitly mandates rule of the shorter term treatment for the works of foreign authors. [See Comment 2 of Dennis Karjala below]
After the European law goes into effect, American authors will be theoretically protected for an additional 20 years, but will in reality be unprotected for that entire period of time-unless American law is strengthened in the manner proposed by the bill I am filing today.
America exports more copyrighted intellectual property than any country in the world, a huge percentage of it to the nations of the European Union. Intellectual property is, in fact, our second largest export; it is an area in which we possess a large trade surplus. At a time when we face trade deficits in many other areas, we cannot afford to abandon 20 years' worth of valuable overseas protection now available to our creators and copyright owners. We must adopt a life-plus-70-year term of copyright if we wish to improve our international balance. It just makes plain common sense to ensure fair compensation for the American creators whose efforts fuel this important intellectual property sector of our economy by extending our copyright term to allow American copyright owners to benefit from foreign uses. By so doing, we guarantee that our trading partners do not get a free ride for their use of our intellectual property. [See Comment 3 of Dennis Karjala below]
While we may be accustomed to a substantial American balance-of-trade surplus with respect to trade in works of intellectual property, we cannot afford to take this condition for granted. In a world economy where copyrighted works flow through a fiber optic global information infrastructure, American competitiveness demands that we adapt our laws-and adapt them quickly-to provide the maximum advantage for our creators.
Anonymous and pseudonymous works: I noted about that the copyright term extension provided by the bill I file today is not mandated by our treaty obligations. But it may be well to note parenthetically that at least in one respect the 20-year term extension does advance our ongoing efforts to fulfill our obligations under the Berne Convention. I am speaking of the term of protection applicable to anonymous and pseudonymous works. Article 7(3) of the Berne Convention mandates that such works be protected for at least 50 years after they are first made lawfully available to the public. Our current law protects those works for 75 years, yet 302(c) of the Copyright Act also establishes a maximum term of protection- [*S3392] 100 years from the date of their creation-beyond which no anonymous or pseudonymous work will be protected, regardless of the date on which it may ultimately be made available to the public. My bill increases each of these terms by 20 years.
Since the Stockholm Act of July 14, 1967, the Berne Convention has recognized the need for an outer limit on the protection of anonymous and pseudonymous works by providing that, ''The countries of the Union shall not be required to protect anonymous or pseudonymous works in respect of which it is reasonable to presume that their author has been dead for fifty years.'' Art. 7(3). It has been argued that the American provision setting an outer limit of 100 years of protection for anonymous and pseudonymous works is in violation of the Berne Convention, see Nimmer, ''Copyright'' 9.01(D), at least with respect to works whose country of origin is not the United States. By increasing the maximum protection from its current 100 years to a period of 120 years, the Copyright Term Extension Act will at least serve to reduce greatly the number of potential situations in which our law may operate in violation of the Berne Convention. This for the reason that it is far more reasonable to presume that an author who created a work 120 years ago may have been deceased for 50 years, than it is to presume that the author of a work created only 100 years ago may have been deceased for at least 50 years.
Mr. President, that is the theoretical, one might say jurisprudential, background of the copyright issue before us today. But it may be well to consider this legal question in its practical aspect as well. What works are we talking about? Who is affected by this legislation?
Mr. President, this legislation matters and it matters to some of the most distinguished members of America's cultural and artistic community. If we examine the significance of this legislation just in the area of popular music alone, I believe we will see its importance.
Consider the following songs that fell into the public domain just 2 months ago at the end of 1994-works still widely performed in theaters and through media around the world: ''Swanee'' by George Gershwin and Irving Caesar; ''A Pretty Girl Is Like a Melody'' by Irving Berlin; ''Alice Blue Gown'' by Joseph McCarthy and Harry Tierney.
In the preceding 2 years, the following standards also lost ;copyright protection, despite their continued popularity: '' After You've Gone '' by Henry Creamer and turner Layton; '' Till the Clouds Roll By '' by Jerome Kern and P.G. Wodehouse; '' Over There '' by George M. Cohan; '' Till We Meet Again '' by Richard Whiting and Raymond Egan.
If the Copyright Term Extension Act of 1995 is not adopted this year in this session of Congress, the following songs will no longer be protected by copyright: '' Look for the Silver Lining '' by Jerome Kern and bud DeSylva; '' Avalon '' by Al Jolson, Bud DeSylva, and Vincent Rose.
Within the next few years, if Congress does not act to adopt legislation such as that which I introduce today, the following musical works will also fall into the public domain: '' Rahpsody in Blue '' by George Gershwin; '' My Buddy '' by Walter Donaldson and Gus Kahn; '' What'll I Do '' by Irving Berlin; '' Georgia '' by Walter Donaldson and Howard Johnson; '' It Had To Be You '' by Isham Jones and Gus Kahn; '' Showboat '' by Jerome Kern and Oscar Hammerstein II.
All of these songwriters and composers are household names still, after 75 years. Indeed '' Showboat '' is back on Broadway, eight performances a week, nearly 70 years after its premiere.
But I would like to draw particular attention to the career of Walter Donaldson. He composed the songs cited above when he was in his twenties, and he died in 1947 when he was in his midfifties. He composed innumerable standards and will forever be linked to the extraordinary success of the 1927 film ''The Jazz Singer'' in which his songs were sung by Al Jolsen. The historical significance of that motion picture, the first sound film to be commercially released, can hardly be overstated. [See Comment 4 of Dennis Karjala below]
If the present copyright law had been in effect in the 1920's, all of Walter Donaldson's compositions would fall into the public domain within the next 2 years. Yet these historical facts should not mislead us into thinking that the copyright status of his works is an academic issue. For it was Ellen Donaldson, the composer's daughter, who first alerted me to the importance of this issue only 2 years ago. I do not think she will mind my pointing out that she is now only in her early fifties. She remains extremely active in publishing and exploiting her father's music and in protecting his copyrights. Like the children of composers such as Richard Rogers, Irving Berlin, Richard Whiting, Hoagy Carmichael, and many, many others, her legitimate interest in her father's copyrights can be expected to continue for decades, certainly for another 20 years.
Mr. President, from interviews I have had with writers, authors, and artists of all kinds, and from the hearings we have held on issues of concern to authors in the Judiciary Committee over the past 18 years, I have come to the conclusion that the vast majority of authors expect their copyrights to be a potentially valuable resource to be passed on to their children and through them into the succeeding generation. I believe that they are reasonable in this expectation and that such a general expectation is what the Framers of the Constitution had in mind when they constrained the power of Congress to grant patents and copyrights only with the very broad and flexible requirement that such rights be granted ''for limited times.'' Article I, section 8. When, however, we so often see copyrights expiring before even the first generation of an author's heirs have fully benefited from them, then I believe that is accurate to say that our term of copyright is too short and for a too limited time.
One could also cite demographic factors that point to the need for a longer term if copyright is truly to reflect the natural desire of authors to provide for their heirs. Principal among these would be the increasing lifespan of the average American, as well as the increasing fact of children being born far later, in a marriage than in past decades. Whatever the reason, the inescapable conclusion must be drawn that copyrights in valuable works are too often expiring before they have served their purpose of allowing an author to pass their benefits on to his or her heirs. I urge my colleagues to pass the Copyright Term Extension Act of 1995 to remedy this situation. [See Comment 5 of Dennis Karjala below]
Mr. President, we in Congress are currently dealing with a number of fundamental issues that bring into question how we have done things in the Federal government over many years. These debates raise the question of the proper role of the Federal Government in sponsoring, stimulating, and, where appropriate, funding artistic activity across a wide range of fields. We are asking virtually every Federal program now in existence to justify its function. And, as a result, we hear much about the programs that do not work.
We hear all too little about the good that Government can do when it functions in a limited and effective way. I would submit that the copyright system-in the way that it rewards private initiative through governmental protection, all without the need for a regulatory bureaucracy-is a model for the best that government can do to improve the life of its citizens.
And when one considers that all works of creativity fixed by any method now known or later developed are invested from the moment of their creation with substantial rights that can be protected in any Federal court, then I think it becomes clear that the copyright system is something we should encourage and, where appropriate, extend.
Because the bill I introduce today does extend the benefits of copyright in an appropriate and obviously needed way, I am proud to be its sponsor. I urge my colleagues to give it their most serious consideration.
Mr. President, I ask unanimous consent that the text of this legislation be printed in the Record .
There being no objection, the bill was ordered to be printed in the Record , as follows: [*S3393]
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ''Copyright Term Extension Act of 1995''.
SEC. 2. DURATION OF COPYRIGHT PROVISIONS.
(a) Preemption With Respect to Other Laws.- Section 301(c) of title 17, United States Code, is amended by striking out ''February 15, 2047'' in each place it appears and inserting ''February 15, 2067'' in each such place.
(b) Duration of Copyright: Works Created on or After January 1, 1978.-Section 302 of title 17, United States Code, is amended-
(2) in subsection (b) by striking out ''fifty'' and inserting in lieu thereof ''seventy'';
(3) in subsection (c) in the first sentence-
(B) by striking out ''one hundred'' and inserting in lieu thereof ''one hundred and twenty''; and
(B) by striking out ''one hundred'' and inserting in lieu thereof ''one hundred and twenty''; and
(C) by striking out ''fifty'' in each place it appears and inserting ''seventy'' in each such place.
(2) by striking out ''December 31, 2027'' and inserting in lieu thereof ''December 31, 2047''.
(II) in subparagraph (C) by striking out ''47'' and inserting in lieu thereof ''67'';
(II) in subparagraph (B) by striking out ''47 and inserting in lieu thereof ''67''; and
(II) in subparagraph (B) by striking out ''47'' and inserting in lieu thereof ''67''; and
(ii) by striking out ''(as amended by subsection (a) of this section)''; and
(iii) by striking out ''effective date of this section'' each place it appears and inserting in each such place ''effective date of the Copyright Term Extension Act of 1995''; and
This Act and the amendments made by this Act shall take effect on the date of enactment of this Act.
Mrs. FEINSTEIN. Mr. President, as always when it comes to matters of copyright law, the distinguished chairman of the Judiciary Committee has spoken well and to the point as to why extending the basic term of copyright protection by 20 years is both the right and the economically desirable thing to do, and to do without delay. As the bill's coauthor, I'd like to add just a few thoughts about our proposal to extend the length of copyright protection for only the fourth time since the Founding Fathers established such rights more than 200 years ago.
First principles come first. The fundamental animating principle of copyright protection was-and remains-assuring that the Nation's most creative individuals have and retain a sufficient economic incentive to continue to craft, work by copyrightable work, the incomparable mosaic of our Nation's cultural life. For many years now, such incentive has been considered to be the right to profit from licensing one's work during one's lifetime and to take pride and comfort in knowing that one's children-and perhaps their children-might also benefit from one's posthumous popularity. Indeed, it was to preserve that incentive that Congress adopted the current life plus 50 years term that is now the law.
Human longevity, however, is increasingly undermining this fundamental precept of copyright law, Mr. President, and with it the economic incentive deemed essential by the authors of the Constitution. We all had the great good fortune, for example, to have the incomparable Irving Berlin among us until 1989, when he died at the age of 101. By that time, however, Mr. Berlin had outlived the period in which he was entitled to royalties from the immortal ''Alexander's Ragtime Band.'' Although not every American copyright owner will reach the century mark, Mr. President, it's clear that we as a Nation are living longer and more active lives. [See Comment 6 of Dennis Karjala below]
Copyright law has in the past-and should now again-reflect that central fact of life. Accordingly, the Copyright Term Extension Act of 1995 uniformly extends the life of copyright protection in this country by 20 years, a modest extension relative to past adjustments, as Chairman Hatch points out. Writers, artists, filmmakers, composers, photographers, sculptors, and cartographers alike-and their children, all will benefit from this overdue adjustment. Perhaps more importantly, as the ultimate beneficiaries of the creativity that copyright protection is intended to assure, so will we all.
Second, Mr. President, as important as America's cultural enrichment is, the United States also stands to benefit dramatically on the world economic stage from extension of the current copyright term. As the tense and protracted negotiations with China just concluded underscored, intellectual property-the collective copyrightable output of America's creators of movies, music, art and other works-is an enormous asset to the Nation's balance of trade.
Indeed, in a recent Billboard magazine commentary, Prof. Arthur Miller of the Harvard Law School noted that, ''In 1990, America's 'copyright industries' recorded $ 34 billion in foreign sales * * *.'' It's no wonder, Mr. President, that the Chinese preferred to appropriate American film and music for resale-two great exports from my State of California-rather than license American works.
By extending to life plus 70 years the basic copyright protection afforded in the United States for new works, Congress will assure comparable protection for American authors in the countries of the European Union, which will formally adopt the life-plus-70 standard this summer. If we do not act, Mr. President, those nations quite simply will not be required to provide American authors, artists and other copyright holders with more than the protection we afford their intellectual property holders here at home. Simply put, Mr. President, conforming our intellectual property laws with those of our trading partners in the service of American competitiveness is critical. [See Comment 7 of Dennis Karjala below]
As Professor Miller aptly put it: ''Unless Congress matches the copyright extension adopted by the European Union, we will lost 20 years of valuable protection against rip-off artists around the world.'' I'm certain that the tired, but successful team from the United States Trade Representative's office just returned from China will testify if asked, Mr. President, that the stronger our copyright laws here at home, the better the deal they can negotiate for American copyright holders abroad. Since America is-and is likely to remain-the world's principal exporter of popular culture, extension of the basic copyright term makes international dollars and sense. [See Comment 8 of Dennis Karjala below]
Third, and finally, Mr. President, I want to note for the record the extraordinary support for this legislation within the intellectual property community. Not only do movie and music companies strongly back this bill as written, as one would expect, but book and music publishers, performing rights societies representing America's premier songwriters and composers, and major software producing firms all concur that Congress can and must pass this important legislation.
I want to thank Chairman Hatch and his staff once again, Mr. President, for another-to my mind-successful collaboration to protect and encourage the production of American intellectual property. Just as was the case with the digital performance rights legislation which we first introduced in the last Congress and jointly offered again recently, it is equity and economics which make the Copyright [*S3394] Term Extension Act of 1995 an important and worthwhile bill.
I commend it to my colleagues, and look forward to working with them and the copyright community at large to put it-as well as digital performance rights legislation-before the President by the end of this session of Congress.
Mr. President, I ask unanimous consent that additional material be printed in the Record.
There being no objection, the material was ordered to be printed in the Record, as follows:
Beginning this summer, all member nations of the European Union will extend the length of copyright protection to the life of the author plus 70 years. Should we in America provide the same protection for our own writers, musicians, artists, computer programmers, and other creators of copyrighted items?
Some feel that we should not tamper with existing U.S. law, which provides copyright protection for life plus 50 years. But this status-quoism ignores some fundamental changes that have occurred in the 20th century.
One of the major reasons Congress originally adopted life-plus-50-years was to offer protection not only to the creator of the copyrighted works, but to his or her children and grandchildren-that is, to three generations in all. With people living longer today, an extension of the copyright term by 20 years would roughly correspond to the increase in longevity that has occurred during the 20th century. [See Comment 9 of Dennis Karjala below]
In addition, Congress has already recognized the wisdom of extending copyright protection to match the terms guaranteed by other nations. That is exactly what Congress did in 1976 when it extended the copyright term to life-plus-50-years, in order to bring American law into line with the term then commonly recognized by other nations.
But beyond this, the main arguments for term extension are equity and economics.
If Congress does not extend to Americans the same copyright protection afforded Europeans, American creators will have 20 years less protection than their European counterparts-20 years during which Europeans will not be paying Americans for our copyrighted products. This situation would not only be unfair to creators of copyrighted works, but would be harmful economically to the country as a whole. [See Comment 10 of Dennis Karjala below]
The export of intellectual property is growing at a tremendous rate because America dominates popular culture the world over. In 1990, America's ''copyright industries'' recorded $ 34 billion in foreign sales of records, CDs, computer software, motion pictures, music, books, scientific journals, periodicals, photographs, designs, and pictorial and sculptural works. Because the world is so eager for the products of America's copyright industries, they are one of the few bright spots in our balance-of-trade picture.
The question of copyright extension should be viewed in the larger context of bilateral and multilateral trade talks-including the Trade Related Intellectual Property Rights (TRIPS) negotiations under GATT. U.S. trade representatives have found that shortcomings in our own copyright law are used against us when we call for stronger protection for American works overseas. One can just hear the Europeans objecting in future negotiations: ''How can you ask for better protection in Europe when you do not even grant the same term of protection we do?''
The need for strong copyright protection becomes more important every year as a weapon with which to fight the piracy of intellectual property. Overseas piracy of American copyrighted material has grown dramatically in recent years due to the availability of equipment that can make cheap copies of movies, videotapes, sound recordings, and computer programs. As more and more digital technology arrives on the scene, the problem will only become worse.
Indeed, China alone produced an estimated $ 2 billion worth of counterfeit recordings and computer discs last year. According to the International Federation of the Phonographic Industry, China now has as many as 26 factories capable of producing 62 million compact discs. China's domestic market accounts for only about 3 million discs, so the dimension of the loss to copyright owners is obvious. Unless Congress matches the copyright extension adopted by the European Union, we will lose 20 years of valuable protection against rip-off artists around the world.
It would not take long to see what harm can come from not changing our laws to match those of Europeans. America may be a young nation, but we have the world's oldest popular culture. Many wonderful motion pictures and songs-including Irving Berlin's ''Alexander's Rag Time Band''-already have lost their copyright protection. Dozens, if not hundreds, of other valuable songs and motion pictures-the legacy of American culture-also will lose their protection in the next few years. For example, if Congress does not act soon, such classics as ''After You've Gone,'' ''I'm Always Chasing Rainbows,'' ''A Pretty Girl Is Like A Melody,'' ''Swanee, '' and ''The World Is Waiting For The Sunrise'' will fall into the public domain, and that is only the beginning. [See Comment 11 of Dennis Karjala below]
Commentary writer Professor Lewis Kurlantzick (Billboard, Oct. 29, 1994) asserted that when copyrighted works lose their protection, they become more widely available. At first blush, this appears logical. But, paradoxically, works of art become less available to the public when they enter the public domain-at least in a form that does credit to the original. This is because few businesses will invest the money necessary to reproduce and distribute products that have lost their copyright protection and can therefore be reproduced by anyone. The only products that do tend to be made available after a copyright expires are ''down and dirty'' reproductions of such poor quality that they degrade the original copyrighted work. And there is very little evidence that the consumer really benefits economically from works falling into the public domain. [See Comment 12 of Dennis Karjala below]
Kurlantzick also denigrates the importance of long-term copyright protection by stating that ''a dollar to be received 75 years from now is worth a small fraction of one cent.'' But, he fails to see that the dollar value placed on future copyright advantages will increase more or less in proportion with the inflation rate. That is to say, if the dollar loses 90% of its value over the next 75 years, then the cost of goods and services will be roughly 90% higher in 75 years than it is today. [See Comment 13 of Dennis Karjala below]
For all these reasons, it's clear why Congress should act. America can reap valuable benefits, at no cost to itself, if Congress enacts legislation to extend our copyright protection by 20 years. By harmonizing our laws with the EU, we can reduce our balance-of-trade deficit, encourage economic investment, strengthen our hand in dealing with intellectual piracy, and see to it that America's authors, composers, artists, and computer programmers receive the same level of protection afforded the creative people of other nations. Thus, copyright term extension makes economic sense, and it's equitable.
Comments of Dennis S. Karjala on Senator Hatch's and Senator Feinstein's remarks, as well as on the Billboard article by Professor Arthur Miller:
1. Senator Hatch states that his bill would increase the term by a "far more modest extension" than earlier extensions, while conceding that it would do so a mere 19 years after the last extension (which itself was for 19 years), while the 19-year extension effected by the 1976 Act went into effect some 69 years after the preceding extension. Moreover, he seems to assume that ever longer extensions are somehow in the natural order of things--since we've extended several times in the past, it must be time to do it again! He says that we should not accept the life-plus-50 term "uncritically as an ideal," but what critical evidence does he offer to show that the extension will help copyright "perform its historic function of spurring creativity" as opposed merely to protecting copyright owners (not "authors," as claimed by Senator Hatch, as the actual creative author will, by hypothesis, already have been dead for 50 years)? Why should the "reasonable expectations" of creators by any different from whatever protection is afforded by the Copyright Act? Senator Hatch is here adopting a "natural rights" basis for copyright protection, contrary to our entire history. See generally my Written Testimony before the House Subcommittee in the hearings on H.R. 989 (104th Congress), in which I discuss the philosophical and theoretical basis for U.S. copyright protection.
2. Senator Hatch accepts that the rule of the shorter term "will no doubt often be employed by foreign states" against U.S. works and concludes that the U.S. must extend its term, too, in order for "American authors" to be protected for the "additional" 20 years. (In reality he means only U.S. copyright owners, who for the works in question--old works from the 1920's, are either copyright transferees or distant descendants of authors, not the creative authors themselves.) He doesn't even consider first negotiating with Europe or other "foreign states" for them to drop the discriminatory "rule of the shorter term," although we are quite willing to get very heavy-handed in trade negotiations in other areas. The U.S. has not adopted the "rule of the shorter term," and there is no justification for it in Europe, either.
3. Senator Hatch points to America's exports of intellectual property but neglects to point out that this surplus is almost entirely in current works, which are fully protected in Europe and all other countriers. He asserts that the extra 20 years are necessary to improve our trade balance, but he offers no evidence that trade in works from the 1920's or 1930's, or that old works in general, is even favorable to the U.S., let alone significant in comparison to trade in current works. By extending, the U.S. public will not only pay additional royalties to U.S. copyright owners whose copyrights are extended (an amount that almost surely will greatly outweigh whatever these copyright owners receive from Europeans, since we are greater users of U.S. works than are people in foreign countries); we will also pay an additional 20 years of royalties on foreign works whose copyrights otherwise would have expired in the U.S. Failing to extend does not give a "free ride" to our trading partners for their use of "our" intellectual property. They will have paid royalties on our works for a full 75 years, just as we have. The pejorative term "free ride," while properly applicable to piracy of current works, is unfairly applied to works that belong in the public domain because their copyright owners have had 75 full years in which to enjoy royalty payments. Do we say that Kenneth Branagh takes a "free ride" on Shakespeare in making a new film of "Hamlet"? Did the makers of "Emma," "Persuasion," "Clueless," and "Pride and Prejudice" take a "free ride" on Jane Austen?
4. How does the undoubted "historical significance" of "The Jazz Singer" argue for continued copyright rights in the descendants of the creative authors of that film? Something of such historical importance is all the more properly in the public domain after 75 years, so that current filmmakers, documentary makers, scholars, critics, and other current authors can build new and valuable works on it, without the heavy transaction costs involved in negotiating copyright clearances so long after the original authors are dead and without danger that an obstreperous descendant will simply refuse permission because he or she disagrees with the content of the proposed use by the current author.
5. The increased lifespan, even assuming it exists (over whatever it was in 1978, when the last extension went into effect), is no argument for an increased copyright term. If authors are living longer, the term of protection also increases, because it is now measured from the date of the author's death. On what does Senator Hatch base his statement that the purpose of copyright is to allow an author to pass the benefits on to heirs? Under U.S. copyright philosophy, the purpose of copyright is to provide an incentive to create works--to overcome the public goods problem that would otherwise exist. Works that are difficult or costly to produce but relatively cheap or easy to copy will be underproduced without some sort of legal protection against copying. For works already in existence, obviously no new incentive is required for their creation. But once the works are produced and made publicly available, economic efficiency is highest when current authors can base new works on the existing base. Given that there is no new incentive for creation, free market economics would demand that we NOT increase the term for any work already under copyright. Increasing the term for existing works is simply a wealth transfer (welfare program) for the current owners of the old copyrights that would be extended--who may not even be the author's heirs in any event (if the copyright or its renewal has been transferred out of the family, e.g.).
For current works, not even Senator Hatch argues that life + 70 years is a perceptibly greater incentive to production of current works than the already very long life + 50 years. Does anyone seriously believe that an author will create a new work when the copyright will expire 70 years after his or her death but will decline to do so if the copyright will expire in a "mere" 50 years after death? These issues, and the complete failure of the notion that copyright is designed to give royalty flow to "two generations of descendants," are thoroughly discussed in my Written Testimony before the House Subcommittee in 1995.
6. Works published before 1978 have a flat 75-year copyright (assuming the were renewed if first published before 1964--for works published after 1963 renewal is automatic). We should not make or change fundamental policy based on isolated and anecdotal examples, such as that of Irving Berlin. That Irving Berlin outlived some of his early copyrights does not mean that we should extend all pre-1978 copyrights by 20 years. For one thing, we can be confident that Mr. Berlin's later works are still providing a comfortable royalty stream to his estate, even if providing such a stream (instead of having given Mr. Berlin the incentive to create the works in the first place) were taken as the goal of the copyright system. But as Senator Feinstein herself points out, the "fundamental animating principle" of our copyright system is to provide an incentive to create works constituting "the incomparable mosaic of our Nation's cultural life." The issue with extension, therefore, is whether adding 20 years to these old copyrights will provide ANY incentive for the creation of new additions to this "incomparable mosaic." Whether 20 more years adds any incentive even to the creation of new works is highly questionable. Irving Berlin, like Stephen Foster, Emily Dickenson, and Mark Twain have made truly incomparable contributions to our cultural heritage. Mr. Berlin and his estate have been generously rewarded financially via the copyright system. After 75 years, his works can and should become a piece of our common cultural heritage, like those of Stephen Foster, Emily Dickenson, and Mark Twain.
7. See also Comment 3 above. The $34 billion figure Senator Feinstein quotes from Professor Miller is comprised almost entirely of current works. Whether extension will help or harm our international trade balance depends on whether we export more works from the 1920's and 1930's than we import from that same period. No study has been done, by Congress or anyone else, to show that this trade balance is even favorable--much less that it is economically significant in comparison to our trade from current works, such as blockbusters like Jurassic Park and The Lion King (whose copyrights will remain enforceable well past the middle of the 21st century). Moreover, any trade benefits that accrue must also be considered in the light of the costs of extension to the American public. It is not just the Europeans who will pay royalties on U.S. works whose copyrights are extended. The U.S. public will also have to pay royalties to the same U.S. copyright owners, in addition to those on extended European copyrights. Even worse, our culture will take an even bigger hit through the relative paucity of new works that are made available by current authors. If we lose even one major work--one work that would have been very popular but was not created because of the high costs of negotiating copyright clearances--all of the supposed benefits from international trade will become immediately negative even in a financial sense. The cultural loss in terms of historical, biographical, archival, and other scholarly research NOT done because of copyright entanglements is, of course, immeasurably greater, but huge.
8. What was our "tired but successful" team of trade representatives doing when the Europe Union adopted Article 7(1) of its Directive on harmonizing the term of copyright protection? (Article7(1) provides:"Where the country of origin of a work, within the meaning of the Berne Convention, is a third country, and the author of the work is not a Community national, the term of protection granted by the Member States shall expire on the date of expiry of the protection granted in the country of origin of the work, but may not exceed the term laid down in Article 1." Click here for the full text of the European Union's Directive 93/98/EEC. See also Article 7 of the Berne Convention, which permits but does not require the discriminatory (non-national treatment) "rule of the shorter term.") I recall no media coverage of protests from the office of the USTR when this discriminatory piece of European legislation was debated and adopted. The main argument of supporters of copyright term extension is, "Europe has extended and we must extend as well for our copyright owners to obtain the benefits of extension in Europe." This argument is, as can now be seen, a true red herring. Europe is trying to blackmail us into doing something as stupid as they have done. Our trade representatives should face up to the real problem: Stop the discriminatory "rule of the shorter term" in Europe and prevent the incalculable damage to the U.S. public domain that will result from blindly following a very bad European example. Even if the European Union remains firm in its discriminatory policy (which is almost impossible to defend on the merits, given that we do not discriminate against Europe on this point of national treatment), throwing away 20 full years of our rich public domain just to keep some European (and, of course, even greater U.S.) royalty payments flowing into the pockets of owners of old U.S. copyrights is still inutterably bad policy. Those copyright owners will, in any event, have received royalties for a full 75 years.
9. This notion that the copyright term is intended to cover three generations is thoroughly debunked in my Written Testimony before the House Subcommittee in 1995. Moreover, even if we were to accept this as a goal for individual authors and their heirs, it cannot serve as a basis for extending corporate copyrights (works for hire).
10. Why is it "unfair" to copyright owners that their copyrights expire after they have collected royalties for 75 years, in most cases 19 years after the original creators expected them to expire because of the term increase effected by the 1976 Copyright Act? If we decide, as we have until now, that 75 years was enough of an incentive, so that we should stop paying the distant descendants of creative authors, why is it unfair that Europe stops paying as well? The only answer can be the discrimination in Europe resulting from the European Union's mandating the "rule of the shorter term" for each of its member states. We should seek to convince the European Union to stop its discrimination against U.S. copyright owners, if in fact we believe that it is "unfair" for them not to receive royalties for the same term as their European counterparts. See Comment 8 above.
11. Professor Miller makes no effort to relate the loss to our international trade balance from the expiration of the copyrights in these old songs with his $34 billion figure earlier.
12. The argument that works in the public domain are made less available has never been supported by any evidence, and it runs contrary to experience and ordinary economic theory. When a current author takes a work from the public domain and makes new creative use of it, the result is a new derivative work, which is fully protected (to the extent of the new creative elements added by the current author) for the author's life plus 50 years. Consider all the Disney films based on public domain works or characters: Snow White, The Hunchback of Notre Dame, The Little Mermaid, Pocohontas, and The Beauty and the Beast, to name only those that spring immediately to mind. Consider as well the many creative uses of classical music, both for new (and protected) recordings of public domain music and for such uses as film scores, as in The Sting and 2001, A Space Odyssey. It simply makes no sense to say that the consumer does not benefit when works fall into the public domain. Somebody must pay the royalties that the copyright owners supporting extension so desperately want to continue. And the loss to the U.S. public in the form of new works that are NOT created is one that does not even benefit copyright owners at all--a flat deadweight loss for our whole society, including owners of both old and new copyrights.
In fact there is much evidence entirely to the contrary of Professor Miller's claim that entrance into the public domain makes works less available. One of the clearest examples is the now famous film It's a Wonderful Life by Frank Capra. That film was essentially unheard of after its initial release, and it was so ignored by its copyright owner that the copyright was not even renewed in 1975. Since that time it has been widely shown on television and has become a classic in itself, precisely because of the wide distribution that permission-free availability made possible. Moreover, innumerable derivative uses have been made of bits and pieces of the film for satirical, humorous, historical, and other purposes, none of which would have been possible had the film remained under copyright. See Douglas Gomery, Research Report: The Economics of Term Extension for Motion Pictures, Research Report for The Committee for Film Preservation and Public Access, submitted in the 1993 Copyright Office Inquiry on Duration of Copyright Term of Protection. The Edmonton Journal of June 9, 1995, and the Vancouver Sun of August 23, 1995, both reprinting Mary B.W. Tabor's report from the N.Y. Times New Service entitled Vanishing rights mean open book season on jazz-age classics, state that publishing companies were "scrambling to publish . . . newly available titles" such as Women in Love by D.H. Lawrence, This Side of Paradise by F. Scott Fitzgerald, and The Age of Innocence by Edith Wharton, as such classic works fell into the public domain.
13. It is true that costs and benefits must be measured from a common yardstick--either in terms of present value or in terms of future value. Nevertheless, whether a current author finds an increased economic incentive from the extra 20 years must be measured in present value (which is less than 1%, as demonstrated in detail in my Written Testimony), because it is in the present that the author is making the decision to create another work or to do something else. The point that Professor Miller's argument wholly misses is that the loss to the public domain from copyright extension is huge and immediate. It is that loss that must be compared with any asserted increased present incentive for current authors. Every loss from a work that is NOT created today will grow in the future just as the Professor Miller's supposed advantages from copyright extension.