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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 firstname.lastname@example.org.
Honorable Henry J. Hyde, Chair
House Judiciary Committee
U.S. House of Representatives
2110 Rayburn House Office Building
Washington, DC 20515
Dear Representative Hyde:
On behalf of over 60 copyright and intellectual property law professors, I write to express our unreserved opposition to H.R. 2589, now before your 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.
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. (I include a copy of this letter.) 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 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 legislative process?
Before moving this bill any further, I urge your Committee to hold new and fair hearings so you can hear the public interest side of this story. I also request that I be allowed to testify at such hearings, and that you make the accompanying Statement a part of the formal record on this legislation. 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.
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 allowing these bills to go further. There is no 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