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Click here to see the book chapter entitled The Term of Copyright mentioned in this letter (see below ). This chapter is a slight elaboration of my Written Testimony before the House Subcommittee on Courts and Intellectual Property on July 13, 1995 in opposition to H.R. 989 in the 104th Congress. It contains arguments more tightly focused on the unfounded claims that the United States will obtain benefits in international trade if the copyright term is extended.
Honorable Sonny Bono
324 Cannon HOB
Washington, D.C. 20515
Dear Representative Bono:
As you know, the bill to extend the term of copyright protection by an additional 20 years (H.R. 989) failed to be enacted in the last Congress. While you were a cosponsor of that legislation in the last Congress, I note that you have not listed as a cosponsor of H.R. 604 recently introduced by Congressman Gallegly. I write to urge you to oppose H.R. 604 this time around. Its passage would be a disaster for current authors, historians, film preservationists, and the American public in general.
This bill is NOT the "no lose" proposition that the special interests who are supporting it have claimed. The general public will suffer greatly from any extension of the copyright term, notwithstanding that its interests are not represented by lobbies like the entertainment industry and ASCAP. I know that you represent District 44 in California and you personally were active in the entertainment business before entering Congress. Still, I feel that you will see, when the actual operation of copyright extension is explained, that it is purely a matter of special interests that harms the U.S. public to an even greater degree than the wealth transfer it would effect into the pockets of the copyright owners.
Very serious public costs are associated with copyright extension. It would impose higher royalty charges on the consuming public and hinder current authors who seek to make new and creative uses of elements from our rich cultural heritage. It is simply not true that the public pays no more for works that are under copyright as for works in the public domain. SOMEBODY pays the royalties that copyright owners are pressing Congress so strongly to continue. If not the public consumers of the works, then who?
Congress should, at a minimum, make a careful study of these costs (as well as the highly exaggerated "benefits" asserted by extension supporters) BEFORE permanently depriving this country of 20 full years of a free and vibrant public domain. The public domain is the foundation upon which all current authors base their new creations.
I enclose a book chapter I have written entitled "The Term of Copyright", in which I develop the arguments against extending copyright in some detail. I hope you or members of your staff will give these arguments some attention. Here I will simply try to summarize some of the main points. I also have set a web page to make materials relevant to the extension problem readily available to interested persons. Please visit the site at <http://www.public.asu.edu/~dkarjala>.
The supposed international trade benefits of extension are, in fact, simply a smoke screen for taxing the U.S. public and current authors for an additional 20 years--for the benefit of distant descendants and assignees of creative authors from the 1920's. While it is true that owners of these old U.S. copyrights will not receive the benefits of the recently extended term in Europe after their copyrights expire in the U.S., that is simply because Europe has adopted the discriminatory "rule of the shorter term." This discrimination is permitted, but definitely not required, by the Berne Convention. I personally believe that the current U.S. term (75 years for pre-1976 U.S. works) is long enough in both the U.S. and Europe. However, if the United States believes that owners of old U.S. copyrights should get the benefit of the longer European term, the solution is to use our trade representatives to encourage Europe to abandon its discriminatory rules. If Europe recognized "national treatment" on the term of protection (as the United States has always done), U.S. copyright owners would be protected for the full European term in Europe, without any change in our own term of protection.
It is not a coincidence that the United States has a huge surplus in international trade of current works (like our blockbuster films--which of course will remain protected well past the middle of the 21st century even without any extension). We are also the country that has always most zealously guarded its public domain, keeping it alive and vibrant so that new authors have both the incentive and the tools to create new works. The onset of the digital age is not the time blindly to follow the competition-choking philosophies of Europe just to put some royalty money into the pockets of a few U.S. owners of old copyrights.
And in any event, it is clear that the "little guy" who creates and markets works on his or her own will be hindered by transaction costs from preserving and enhancing old works and creating new ones in the process. Many small writers, archivists, historians, biographers, teachers, film makers, and multimedia producers will simply find something else to do rather than try to negotiate copyright licenses from multiple owners so many years after the creative authors' deaths. These owners have benefitted from the copyright for 75 years--now it's time that they pay their constitutional dues by letting their works go into the public domain.
This legislation benefits ONLY special interests at a heavy cost to the American public. There is a significant degree of self-interest involved in the views of the supporters of this legislation, even where it is sincerely held. I hope that you will take the time to see that the general public, too, has an important interest.
The public benefits enormously when creative new authors take well known cultural icons and do new things with them. That is how culture progresses and develops. Santa Claus, for example, has not always been with us. Somebody created him, but his current status as a public domain character means that people all over the world can freely use and develop him every Christmas. There is no reason that Mickey Mouse should not similarly join the ranks. The Disney company has many new blockbuster movies and characters that will sustain it, even if it creates nothing new at all, well into the next century. I hope that you can take a careful look at who really will benefit and who will bear the very significant burden that copyright extension will bring with it.
Please feel free to call me at 602-965-4010 if I can be of any assistance whatsoever in this matter. I would be pleased to discuss these issues with your office. And please visit the "Opposing Copyright Extension" web site at <http://www.public.asu.edu/~dkarjala>.
Dennis S. Karjala
Professor of Law