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Click here to see the full text of H.R. 604, the Copyright Term Extension Act of 1997

H.R. 604 differs slightly from H.R. 989 in the last Congress. H.R. 604 does not extend the term for unpublished works that remain unpublished until 2003, and that is a definite plus. Another plus is the clarification that the Act will not be retroactive, so there is no longer any argument that works already in the public domain will go back under copyright. However, H.R. 604 still extends the term for all other works by 20 years, including pre-1978 unpublished works that get published before 2003. The "nonprofit educational institution" exception for the "extra" 20 years to be added by the extension was not part of H.R. 989 in the last Congress, although it was included in the bill that passed Senate Judiciary in 1996. It appears to provide some modest value to librarians and archivists, but in fact the opposite is the case! Every use permitted by this exception is already a "fair use" under current law, so the provision is wholly unnecessary. Even worse, it is almost sure to be interpreted by the courts as a LIMITATION on fair use. All the copyright owner need do is supply notice to the Copyright Office that the work is subject to normal commercial exploitation or is available at a reasonable price. The implication will be that the research or archival activities otherwise permitted by the new provision are not only not permitted by that provision but, worse, not permitted at all, even under section 107's general fair use provision!

Other basic problems of copyright extension, of course, remain:

1. The public will pay a heavy price in continued royalties, and no one has done a study showing that any purported public benefits will offset this cost. In fact, it seems impossible that anyone could make such a showing, because no one has demonstrated any public benefits at all from copyright extension--only a continued flow of royalties into the pockets of the owners of old copyrights. At a minimum, Congress should make a study of the costs and benefits of extension before plunging irrevocably forward to wipe out at a single stroke 20 full years of our public domain.

2. The public will pay an even heavier price in the reduction of works available because current authors choose to do something else instead of basing a creative new work on an element from the public domain.

3. The bills will not harmonize our term with that of Europe: That can never be done for pre-1978 works because the U.S. term for those works is a flat period from publication (75 years or, with extension, 95 years), while the European term has long been 50 years (now 70 years) after the author's death. Moreover, we will not harmonize even for future works unless we eliminate the flat period for "works for hire." Most of Europe does not recognize works for hire at all, and the EU Directive requires that the term be 70 years if they do. Our current work-for-hire term is 75 years, so to harmonize even with those few European countries that do recognize works for hire we should reduce our term by 5 years rather than increase it by another 20 years (as H.R. 604 would do).

4. U.S. copyright owners can get parity with European authors in Europe without extending our copyright term and starving our public domain. Our trade representatives must demand that Europe drop its mandatory (but discriminatory) "rule of the shorter" term (which says that the term of copyright in Europe is the term in the country of enforcement or the country of origin, whichever is shorter). Article 7 of the Berne Convention permits, but does not require, the rule of the shorter term (it's one of the few permitted exceptions in Berne to the principle of "national treatment"). The United States has never adopted this discriminatory rule (so, for example, some European works are or have been protected here even though their copyright has expired in Europe). See also Congress Moves to Extend Copyright Welfare.

In general, see my Written Testimony on behalf of Copyright and Intellectual Property Law Professors before the House Subcommittee on Courts and Intellectual Property, H.R. 989, July 13, 1995.

This brief analysis was most recently updated on March 26, 1997. I hope to supply a more detailed analysis in the not-too-distant future.