Legislative Materials (104th Congress)
Testimony of Professor Peter Jaszi
Professor of Law
Senate Committee on the Judiciary
Hearings on S. 483, 104th Cong., 1st Sess.
September 20, 1995
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Testimony of Professor Peter Jaszi
In my academic wanderings through the legislative history of American copyright, I've been struck by how seldom and how little the Congress has heard from the users of public domain material, a loose community that is both more numerous and more diverse than one might expect. So I want to thank the chairman and the committee for the chance to appear today as a sort of proxy, however imperfect, for the readers, writers, teachers, students, historians, biographers, film makers, film scholars and conservationists, specialized reprint publishers, archivists, multi-media producers, video distributors and yes, even lawyers who depend on reliable access to a robust and constantly reinvigorated public domain, access which this legislation puts at risk.
But make no mistake about it, the public domain, that informational commons, free to all uses and users, has real social and cultural value. It's a creation of the very first copyright law, the Statute of Anne of 1710, and it's importance is reflected in the limited times language of the copyright clause of the United States Constitution. Discussions of the public domain which center on whether high quality reprints of classics cost more or less than cheaply produced mass market paperbacks trivialize the concept of the public domain by overlooking its more central function as the source to which the creative men and women of each generation turn for the materials they refashion into new and newly valuable works of imagination.
In considering the current drive to extract additional royalties from the countries of the European Union, even at the expense of delaying or denying the entry of works into the domestic public domain, we should not lose sight of the fact that it is the uniqueness of American copyright law, our retention of the work-for-hire doctrine, our rejection of broadly applicable moral rights, and our special devotion over time to the maintenance of the public domain that helps to account for the extraordinary competitive success for American works in the international marketplace. The United States has wisely rejected the natural rights approach to copyright law, which has, in some degree, retarded the growth of Europe's cultural industries in modern time. Thus, the benefits which particular individuals and companies, no matter how sympathetic, would reap from the proposed legislation cannot justify the incursion on the public domain which it would represent.
Nor does the legislation promise the sorts of incentives to create and disseminate works which the Congress and the courts traditionally have looked just by new limitations on public access to information. Obviously, extending for protection for works already in existence cannot function as an incentive to their creation, neither as a practical matter can it add much to existing incentives to dissemination. No firm is likely to cease distributing popular works because they no longer are protected by copyright, and no firm is likely to re-commence distributing unpopular ones merely because the copyrights in them have been extended. Extending the term of protection for works made after the effective date of the legislation might produce some theoretical, highly attenuated effect on the creative practices of individuals. I say might, because I cannot imagine the instance in which a writer, for example, would 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.
In any event, adding 20 years to the already generous term of protection for works made for hire, would be highly unlikely to provide any measurable economic incentive to the corporate creation of new works. And prospective term extension would be just as unlikely to affect the practices of firms which distribute copyrighted works. No rational business makes economic decisions about present investment based on the mere possibility of income 75 or a hundred years in the future. To my mind, this does not add up to an overwhelming or even a colorable case for term extension, either as a matter of copyright policy or as one of constitutional law.
This morning, there have been several suggestions that there are no strong, economic incentives to preserve or reuse works in the public domain. To the contrary, the opportunity to claim a new copyright and the resulting derivative work, be it a new addition of a literary text, a digitized preservation copy of a motion picture, or an adaptation of an old work into a new medium, is the strongest economic incentive to undertake such efforts. By contrast, I'm not sure that, for example, many film archivists would agree with Mr. Valenti's suggestion that there is a strong, positive correlation between the copyright ownership status of motion pictures on the one hand, and the interest which the film industry has shown in their preservation on the other.
Nineteen years ago, the Copyright Act of 1976 added 19 years to the life of then-subsisting renewal copyrights. The current legislation would add 20 more years. A cynical observer might be forgiven the suspicion that it represents a down payment on perpetual copyright on the installment plan, thus raising obvious and substantial constitutional issues. Nor does the legislation in its present form appear to satisfy the constitutional mandate to promote science and the useful arts. But even if these constitutional concerns are put to one side, the legislation, as it stands, cannot be justified within the framework of the sound approach to evaluating copyright reform proposals, which have served Congress so well for more than two centuries. Thank you.