Opposing Copyright Extension  

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Letter dated March 31, 1997, from Larry Urbanski, Chairman of the American Film Heritage Association, to Senator Strom Thurmond, opposing S. 505


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AMERICAN FILM HERITAGE ASSOCIATION
P.O. Box 438
Orland Park, IL 60462
708-460-9082
Fax: 708-460-9099

3-31-97

Mr. Garry Malthrus
The Honorable Strom Thurmond 217 Russell Senate Office Building
Washington, D.C. 20510

Dear Senator Thurmond:

RE: S505

Enclosed you will find a paper called THE TERM OF COPYRIGHT by Dennis S. Karjala, opposing the copyright extension as described in S. 505. Also enclosed is FOR LIMITED TIMES? MAKING RICH KIDS RICHER VIA THE COPYRIGHT TERM EXTENSION ACT OF1996 The American Film Heritage Association is in complete agreement with these opposing positions. The effects of the extension of the term of copyright have not been fully assessed.

The Coalition of Copyright Professors (45 Intellectual Property Law Professors) also wrote a commentary to the U. S. Copyright Office on the term extension. In that report, it is stated:

There is an important industry in the United States, dependent on film in the public domain. Past copyright legislation has reduced the number of motion pictures in public domain considerably, causing hardship for this industry. Commercial film archiving and film preservation has already stopped for works created after 1962 thanks to "automatic renewal." This extension will further hamper commercial archives.

It will also stop the release of silent films from the 1920's, painstakingly and with great expense restored by commercial archives. Some of these early works were restored with public funds at the Library of Congress. These works should be allowed to be in the public domain after 75 years, not held from distribution because of an extension in copyright. After all, our tax dollars paid for the restoration! Film makers and new authors who produce historical film documentaries will lose a great deal of valuable public domain footage through copyright extension. Creativity will suffer with this extension, by virtue of its unpredicted economic consequences. The preservation of "Orphan Works" as recognized in "Redefining Film Preservation: A National Plan. Recommendations of the Librarian of Congress, in consultation with the National Film Preservation Board August 1994" will be adversely affected.

Orphan works were defined and recognized in the National Plan of the National Film Preservation Board, Recommendations of the Librarian of Congress. Films from the 1920's could contain as much as 75% of motion picture works no longer owned by anyone, with no traceable lineage, called Orphan works. The studios own a very small portion of films produced in this period. Orphan films comprise the bulk of this film era. Those Orphan films now owned by defunct companies and under copyright are ready for preservation by commercial archives. Commercial archives preserve orphan works at no cost to the public, in exchange for the right to market the works through public domain. Those non-studio Orphan films presently preserved by commercial archives will be abandoned because public domain allowed the economic incentive to preserve them.

The "blanket" 20 year extension goes beyond the bounds of copyright law overseas. Harmonization with foreign copyright law was never part of the purpose of the Constitution. With works for hire, US copyright owners presently enjoy superior coverage compared to their European counterparts. Where is the benefit for the public with an extension for works for hire to 95 years?

If this legislation would apply to new works only, there would be minimal effects on present commercial film preservation efforts. Yet the issue of public domain constriction would not be addressed. S 505 simply makes it more difficult for new authors and other creators to flourish, all to create a favorable economic future for a minority of owners of intellectual property.

Fundamentally, the term extension will cost the public billions of dollars over the course of the next two decades in royalty payments alone. This money will come from the pockets of ordinary consumers, who can little afford further erosion of their economic conditions. The public depends on its elected representatives to make educated decisions, with the best evidence on hand before voting for major changes that would affect their day-to-day existence. There are other groups and parties that will be hurt financially such as libraries. Again, I would ask: Where is the public benefit?

There are some questions and concerns Congress must address in S 505.

Creative artists in this century have worked within a rich public domain and our United States copyright laws have fostered the greatest creativity in the world. Distant descendants and assignees (often corporate publishers or recording companies) of those creative artists now seek an extension in a new copyright environment. This is at the expense of new authors because of the diminished public domain the extension creates. Doesn't this bill favor OLD copyright owners, vs. our NEW authors in this country?

There is a constitutional issue here. Regular extensions of copyright (the last extension was in 1976) does not fit within the definition of limited term. Isn't it wrong to introduce an extension for 20 years in 1995, when the last extension was for 19 years in 1976? (19 years ago?) This is not limited term. Continuous extensions are perpetual copyright, NOT limited term.

Copyright protection is a balance between an incentive for authors to create desirable new works and the public interest in a large and vibrant public domain from which later authors can extract materials for new creative works. Would the additional twenty years of protection - already life of author plus 50 years - provide any further incentive than the current term? The proposed extension will bring about a reduction of the public domain without a corresponding public benefit.

If this legislation would apply to new works only, there would be minimal effects on new authors. S.505 creates a favorable economic future for a minority of owners of intellectual property. The issue of public domain constriction simply makes it more difficult for new authors and other creators to flourish.

What studies have been made to evaluate the economic costs of this extension for the American people? A CONGRESSIONAL STUDY IS NEEDED. How much will they pay over 20 years? Will not royalties be paid for 20 additional years by all American citizens for music, films, books, clearance costs, and all other performances of copyrighted works be a huge expense to the average American? The revenues from 1920's works overseas will not overshadow what Americans will pay in additional royalties. Americans will ALSO be paying royalties longer for all FOREIGN copyrights with the extension.

Should producers of new works, i.e. aspiring film makers and documentarians, be burdened with 20 years of additional costs for music clearances, clip clearances, book clearances, and other rights? These additional costs hamper creativity, and the purpose of copyright.

Is the "Harmonization" issue reason enough to adopt the extension? Harmonization may sound good at first, until we see it is a smokescreen for special interests. Copyright owners may want an extension, but they DO NOT want complete harmonization with their European counterparts. Corporate rights (works for hire) are not recognized in most EC countries. Should we do away with them? Moral rights are NOT wanted by the studios, nor the music industry. Should we adapt moral rights? Full compliance would change the structure, and fiber, of United States copyright law. We are not, and will never, be in full harmonization with our European counterparts. This should not be our goal. We will never adopt full "moral rights" because US Copyright owners do not want them. The United States has the best copyright system in the world. Full harmonization is NOT necessary. The extension is not harmonization. It's not "harmonization" to equalize in just the ways that help particular special interests but not to harmonize where those same interests prefer to be different. It is simply special interest legislation.

And who is paying for this extension? Not the Europeans, but primarily US Citizens . Reason dictates that for every royalty paid abroad, there will be several payments of royalties on the same work by US citizens in this country. We pay royalties, directly and indirectly, on movies, music, books, airings of songs in stores, public performances of videos in day care centers, new production clearances of music, clips, clearances to photocopy works by libraries ...the list is endless. All these payments are passed to the AMERICAN PUBLIC in higher costs for everything we do that has an attached copyright. There is no PUBLIC BENEFIT to this legislation. It is a payment structure to a small group of well heeled copyright owners who have already been profiting for 75 full years, and that is long enough for a fair return.

These questions must be answered as soon as possible before S. 505 moves further in the process towards codification.

The Library of Congress did a study on the possibility of an extension in 1993. We have on file hundreds of letters submitted to the Library of Congress from businesses, authors, film makers, scholars, archivists, and the public opposing the extension. We would glad to share this voluminous material with you. There are many reasons stated why an extension is the wrong thing to do.

I would be available to discuss the effects of this bill with your office. New authors, film makers, and the creative community will be hurt. We oppose this legislation in it's entirety due to the problems raised in this letter. We hope to be of service to your office to clarify the onerous effects this legislation poses to the creative community of the United States.

Visit the "Opposing Copyright Extension" web page at http://www.public.asu.edu/~dkarjala for a complete analysis of S 505.

Sincerely,

Larry Urbanski
Chairman

enclosures: The Term of Copyright
For Limited Times? Making Rich Kids Richer via the Copyright Term Extension Act of 1996