Unless this legislation is determined by the courts to be unconstitutional (click here for information on a judicial Challenge to Constitutionality of this giveaway of the public interest), the American public will pay a heavy price in continued royalties on old works.  Moreover, the public will enjoy fewer new works because current creative authors will be denied vital pieces of our cultural heritage for use as building blocks in making new creations.  For the first time in over 200 years of copyright history in the United States, this legislation means that NO WORKS WILL ENTER THE PUBLIC DOMAIN FOR A FULL 20 YEARS!  (Sigh!  As always, few statements about copyright are absolutely true.  For an explanation, and slight qualification of this one, see Effect of Term Extension below).  The owners of old copyrights have managed to avoid paying their constitutional dues after 75 years of free-flowing royalty streams--namely, dedication of the works to the public domain. As part of the public domain, they should constitute a piece of our cultural heritage and be freely available to all to enjoy and to use in creating newer works. 

    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.  Had Thomas Nast been working under the kind of copyright law now in place after term extension, we may never have seen the development that we now take for granted—and Nast's descendants might be seeking royalties from everyone seeking to put out Christmas decorations.  Even the U.S. Government would have had to pay royalties to use Uncle Sam for its patriotic solicitations, like bond selling and military enlistments, during World Wars I and II, the Korean War, and most of the Vietnam War!  (Uncle Sam was also a creation of Nast, based on the public domain name and concepts, and Nast died in 1902.)  Just as Uncle Sam, 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 (not to mention Rudolph and his red nose).  That is a crucial part of the copyright "bargain" that the public made at the time these works were created. 

    Do you think that the public domain does not affect the prices paid by the public to enjoy works?  Take a look at the letter from Randy Luck of Luck's Music Library, which shows how dramatically prices drop for the performance of classical music when a work enters the public domain. 

    The first United States Copyright Act (1790) provided for a term of 14 years, renewable in the 14th year for a second 14-year period.  Later the initial term was extended to 28 years, renewable for 14 years, and in 1909 the renewal period, too, was extended to 28 years (for a possible total of 56 years).  Beginning around 1962, Congress started extending the renewal term by one year each year, with a view toward the extensions envisioned by the negotiations leading to the 1976 Copyright Act.  That Act did, indeed, permanently set the renewal term, for pre-1978 works, at 47 years (giving them a total of 75 years of protection).  It also eliminated the renewal requirement altogether for post-1977 works, giving them a single life + 50 year term for individual authors and a flat 75-year term for "corporate authors" (works made for hire).  Consequently, the copyright term was effectively extended for old works (pre-1978 works whose copyright was renewed) by a full 19 years as recently as1962.  Such works enjoyed, prior to the 1998 extension, 75 years of copyright protection--19 years more than the original authors ever thought they were going to receive.  According to a Wall Street Journal article of October 1997, 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.  The 1998 term extension provides these noncreative recipients with another 20 years of such royalties, all paid out of the pockets of the public. 

    The 1998 copyright term extension legislation was introduced in the House on February 5, 1997, in the form of H.R. 604. The Senate's version of the bill, S. 505, was introduced on March 20, 1997, by Senator Hatch.  The House bill was passed by the House of Representatives on March 25, 1998, in a form that included some controversial new provisions (unrelated to term extension) on music licensing and renumbered H.R. 2589. The special-interest proponents of term extension were successful at making the bill look noncontroversial, as shown by the way the House Subcommittee held its "hearings".   (The hearings were combined with some other bills, so they were not publicized under the bill numbers for those trying to follow the legislation.  The proponents of extension--surprise, surprise!--knew about the House hearings and of course testified in favor.  The opponents did not even know the hearings took place until several months later!  Presumably, this disgraceful mockery of democratic processes was orchestrated by Subcommittee Chair Howard Coble and Committee Staffer Mitch Glazier.)  Some 60 copyright and intellectual property law professors, who had no personal interest in the outside of their conviction that it is a bad deal for the public--based on years of study of the underlying law and policy--delivered to Congress a detailed Statement, thoroughly demolishing the "arguments" offered by the proponents of term extension and demonstrating the drastic and permanent harm to the public domain that extension will bring about.  Unfortunately, it was to no avail. 

    How did all this happen?  ASCAP, the descendants of creative geniuses from earlier eras like George Gershwin and Walter Donaldson, and the entertainment industry (especially Disney, which saw Mickey Mouse heading for the public domain in 2004) successfully convinced Congress that this was "noncontroversial, no-lose" legislation. They very skillfully orchestrated the legislative process so that the bill retained a very low profile.  (The only reason it did not pass earlier was that this "sure thing" for copyright owners was held hostage by special interests of another stripe who were seeking--and got--an expanded exemption for the public performance of works in business establishments.  ASCAP was quite upset about this, showing that congressional loyalties to Disney took precedence over the music publishers.)  The costs of term extension are, in fact, enormous, but they are spread out over so many people that few single individuals or groups feel a compelling need to fight.  With only a few exceptions, such as the AAUP and the Society of American Archivists, the traditional "proxies" for the public interest in copyright matters--librarians, educators, consumer and citizen action groups--were largely silent.  We must find a new voice for the public domain, or we can expect this trend to continue--perpetual copyright on the installment plan. 

    Click here for a Washington Post report dated October 15, 1998, entitled Mouse Droppings and describing some of the last minute legislative maneuverings, including contributions by Disney to the campaign chests of the Republican party and individual members of Congress, such as Majority Leader Trent Lott.   Look also at Disney Lobbying for Copyright Extension No Mickey Mouse Effort, an Associated Press article that appeared in the Chicago Tribune on October 17, 1998.
 

    The term extension bill adds 20 year to the renewal terms of pre-1978 copyrights (making them effectively 95 years from first publication).  It also adds 20 years to the term for works created after 1977 (which do not have to be renewed):  Life +70 years for individual authors and 95 years from publication for corporate authors.  When this disastrous legislation is coupled with other expansions of copyright by a Congress that serves moneyed interests over those of the public, we see how dramatically our nonrepresentatives in Washington have gutted the public domain--the ultimate source of all new works (because nothing is ever wholly new in and of itself).  For the first time in our history, no new works will enter the public domain for a full 20 years!  When Congress began its 19-year extension plan in 1962, it meant that works whose copyrights had been renewed did not go into the public domain when they should have, that is, at the end of 56 years after publication.  However, because the renewal system was still in place at that time, many works entered the public domain simply because their copyright owners did not take the simple steps required to renew the copyright.  This usually happened because the copyright owners did not believe that the works had any economic value, but in some of these judgements the copyright owner was mistaken (as in the case of the film, "It's a Wonderful Life").   However, and in any event,  many of these works had important scholarly and research value and became available for general use a mere 28 years after their initial publication.  So, even though the term for most economically valuable works was extended by 19 years in 1962, the public domain continued to grow. 

    However, in 1992 Congress made renewal automatic for works published in 1964 or later (and of course the 1976 Act had already eliminated the renewal requirement for post-1977 works).  Consequently, a pre-1964 work is either in the public domain already (because of failure to renew) or will remain protected for the extended period of 95 years from first publication.  Works published in 1922 went into the public domain on Jan. 1, 1998, but works published in 1923 that were still protected in 1998 will remain protected until Jan. 1, 2019.  Nothing now goes into the public domain for failure to renew.  So, that means that nothing will go into the public domain at least until 2019 (and we can be sure that Disney will be back prior to that to try to extend the term again). 

    For completeness, there is one qualification that should be made.  Section 303 of the 1976 Act brought under federal copyright protection previously unpublished works, including very old works (like letters of George Washington) that are in the public domain everywhere else in the world (because the life + 50 or even life + 70 year term has expired).  (Is that harmonization--one of the false banners under which term extension was propounded?)  It further provides that all of these old works will enter the public domain on Jan. 1, 2003, unless they are published prior to that date.  (If they are published before 2003, they are protected under the extension bill until 2047, even those that are in the public domain everywhere else!)  One of the small victories in this sordid affair was effected by historians who convinced Congress not to extend the 2003 date to 2013.  Consequently, we will have one more injection into the public domain prior to 2019, namely, very old works that have not been published before 2003.  (There is an important lesson here for anyone interested in using these historical documents.  DO NOT PUBLISH THEM IN ANY FORM PRIOR TO 2003, EVEN ON A WEB PAGE!  If you do, you may create copyright problems for everyone else who wishes to use them until 2047.) 
  

    This site contains a collection of documents, articles, letters, links, and other information relevant to the issue of copyright term extension. Notwithstanding adoption of the legislation, I intend to keep this web site in operation with additional information relating to the public domain as I can gather it.  Perhaps it will be useful to someone when term extension arises again in 20 years, or perhaps it will help make people more aware of the importance of the public domain generally.  This site also contains contact information for members of both houses of Congress as well as President Clinton at the White House and Vice President Gore.  Similar information is separately given for the members of the Senate Judiciary Committee and the Subcommittee of the House Judiciary Committee, which are the Committees that, in principle, first consider copyright legislation, but in practice actually determine it, because only very rarely does something get added or changed on the floor.   (Now that the legislation has passed, there may be less need to contact these disgraceful politicians on this particular issue, but some visitors may find it convenient to have addresses and telephone numbers handy.)  Many members of Congress seemed to believe that copyright extension was noncontroversial. Opponents of term extension failed to make clear that large numbers of Americans believe in and have a vital interest in maintaining a healthy public domain.  We must do better the next time the issue arises (as it surely will). 

     It is a sad time for the public domain and the public interest in the advancement of knowledge and culture.  I wish to thank all of those people who did try to make Congress aware of the public interest side of this issue and regret that I was unable to be more effective in stopping this blatant giveaway of the public interest into private hands.  It has been suggested that we should designate October 27 as a sort of "Public Domain Remembrance Day."  Whether that comes about or not, we must be thinking of how to promote public understanding of the importance of the public domain to that fiascoes of this type can be more effectively opposed.  We must also be thinking of ways to support the important judicial challenge to the constitutionality of the Sonny Bono Copyright Term Extension Act. 
  

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