Click here to return to the Opposing Copyright Extension Home Page.
Click here to see the 1998 Statement of Copyright and Intellectual Property Law Professors, mentioned below and submitted to all members of the House and Senate Judiciary Committees on January 28, 1998, under a similar cover letter. For other questions or comments, please send me an email at email@example.com.
University of Minnesota Law School
Twin Cities Campus
344 Law Center 229-19th Avenue South
Minneapolis, Minnesota 55455
(612) 625-3084 (direct)
(612) 625-2011 (fax)
January 29, 1998
Honorable John D. Ashcroft
Senate Judiciary Committee
170 Russell Senate Office Building
Washington, DC 20510
I write on behalf of over 60 copyright and intellectual property law professors to express our unreserved opposition to S. 505, now before the Senate Judiciary Committee. The accompanying Statement explains in detail our conviction that this bill is no more than a piece of special-interest welfare legislation that will cost the U.S. public, and the growth of our cultural heritage, dearly. Neither I nor my colleagues have any personal axe to grind other than our conviction, based on intimate study of copyright theory and practice, that the public is being horribly shortchanged by this legislation.
As the sponsor of S. 1146, you are aware of the public/private balancing that is crucial to intellectual property legislation. In particular, you should understand that this is not a fight between the shopkeepers seeking relief from copyright's strong performance rights and the term extensionists. Rather, it is a fight between moneyed special interests, who do not want to see their very long flow of royalty revenue come to an end, and the American public who after a "limited time" have a Constitutional right to the free use of America's artistic, music, and cultural heritage. The public has few champions on an issue like this and desperately needs leadership and moral conviction. Please join Senators Kohl and Kyl, both of whom voted against term extension in Committee last term, in opposing this bill.
The supporters of this legislation are trying
to make it appear "noncontroversial." I made an explicit request
to Representative Coble, Chairman of the Subcommittee on Courts and Intellectual
Property, by letter dated February 25, 1997, that I be invited to testify
at any hearings that were held on term extension. Notwithstanding
this request, hearings were held in June 1997 so quietly that no one I
know was even informed of them, let alone invited to appear. I did
not learn about these "hearings" until September, after the bill (H.R.
2589) went to markup. A Wall Street Journal reporter somehow learned
about the hearings, however. When I asked why he didn't mention the
opposition on the merits in his article, he said he didn't hear much opposition
at the hearings. How could he have heard of opposition, when none
of the known opponents were invited? What kind of a democracy is
it when only one side—the moneyed special-interest side—takes part in the
This legislation represents a classic failure of democracy: Moneyed special interests are able to get their views before the Congress, but the costs are spread over so many people—the general public—that few are motivated to action, notwithstanding an enormous total cost to the public. I urge you to insure that the public interest is represented before this ill-advised legislation is adopted into law.
As our Statement points out, the copyright term was extended by a full 19 years as recently as 1976. According to a Wall Street Journal article published last October, heirs and assignees of creative composers from the 1920's have already enjoyed millions of dollars of extra royalty income as a result of that extension. These noncreative recipients do not need, nor should the public be required to pay for, another 20 years of such royalties.
The creation of new works is dependent on a rich and vibrant public domain. Santa Claus himself, as we now know him, is a good example. The great 19th-century American cartoonist Thomas Nast, starting from a skinny, austere, judgmental Father Christmas figure in the public domain, created the jovial, roly-poly figure that we all know today. Just as Santa Claus and the Easter Bunny are part of the public domain that anyone can use in any season, so eventually should Mickey Mouse and Bugs Bunny also join our freely available cultural heritage. That is a crucial part of the copyright "bargain" that the public made at the time these works were created.
Our Statement also shows that "harmonization" with Europe is simply a smokescreen by which the extension supporters hope to line their pockets further, primarily from U.S. citizens. Term extension in Europe does not provide any rational basis for extending here. Rather than blindly follow a truly bad European example, we should be asking why the U.S. has come to dominate the world entertainment and computer software markets. It is not by tying the hands of current creators for the benefit of distant descendants of masters from earlier eras! It is rather our careful nurturing of the Constitutionally mandated public domain that we have achieved our leadership position—and that is what will allow us to keep and even lengthen our lead, unless we fall prey to the wiles of extension supporters and follow the tired example of Europe. Moreover, as our Statement points out (see pages 17-18), the "rule of the shorter term" will NOT apply in two of the most important countries of the European Union, namely, Germany and the U.K., to the old U.S. works whose imminent passage into the public domain is the source of the extensionists' fervor. Old U.S. works will by treaty continue to be protected for the full life + 70 years in Germany, and for the life + 50 period that existed in the U.K. prior to the extension there under the E.U. Directive.
Congress has never even made a study of the
costs and "benefits" of term extension. The costs are obvious and
immediate. The benefits, as claimed by the supporters of extension,
range from nonexistent to speculative. At a minimum Congress should
be sure that there are offsetting benefits before giving away to private
parties such a huge chunk of the public's property.
I understand that everyone in Congress is very busy in these turbulent times. Nevertheless, I urge you to consider carefully the arguments in our Statement before voting to allow these bills to go further. We need not rush to adopt term extension. Our balance of trade in intellectual property is not in danger and will not suffer even if "Rhapsody in Blue" becomes as full a part of our heritage as "Swanee River." Once the term is extended, however, it may be impossible politically, and perhaps even legally, to retract. PLEASE DO NOT RUSH TO JUDGMENT ON THIS ISSUE!
For much more information, I invite you and
your staff to visit the "Opposing Copyright Extension" web page, at <http://www.public.asu.edu/~dkarjala>.
Moreover, I would be pleased to have the opportunity to speak with any
of your staff and to answer whatever questions you or they may have.
Thank you very much for your consideration and for your willingness to represent the public.
Dennis S. Karjala
Visiting Professor of Law