Opposing Copyright Extension

Commentary on Copyright Extension
Comment
For Limited Times?  Making Rich Kids Richer Via the Copyright Term Extension Act of 1996
by Joseph A. Lavigne

reprinted from

73 University of Detroit Mercy Law Review, No. 2, Winter 1996
Pages 311-360

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Copyright © 1996 Joseph A. Lavigne. Please contact Mr. Lavigne at <redwing@michbar.org> concerning necessary use permissions.

For Limited Times? Making Rich Kids Richer Via the Copyright Term Extension Act of 1996

Some authors are as careless about profit as others are rapacious of it; and what a situation would the public be in . . . if there were no means of compelling a second impression of a useful work . . . . All our learning will be locked up in the hands of the Tonsons and Lintons of the age, who will set what price upon it their avarice ch[oo]ses to demand, till the public become as much their slaves, as their own hackney compilers are.(1)

-- Lord Camden
I am in favor of, generally speaking, short rather than long terms. I've never yet heard any case, except that it's done differently elsewhere, for a longer term.(2)
-- Professor Ralph S. Brown
I. Introduction

The Copyright Term Extension Act of 1995(3) is currently pending before the United States Congress. This bill would amend the Copyright Act(4) to provide an additional term of protection, generally twenty years,(5) for all works copyrighted in the United States, without regard to whether the works were created prior to the adoption of the Copyright Act of 1976, or whether they were created since that time.

For all works created after January 1, 1978, the term of copyright would be increased from the current duration, the life of the author and fifty years thereafter,(6) to the life of the author plus seventy years.(7) The term of protection for joint works would likewise be extended from the life of the last surviving author and fifty years thereafter(8) to the life of the last surviving author plus seventy years.(9) Anonymous works, pseudonymous works, and works made for hire would also receive an additional twenty years of protection. The copyright duration for these works would be extended from the current seventy-five years from the year of the work's first publication(10) or one hundred years from the year of creation,(11) whichever expires first, to ninety-five years(12) and 120 years,(13) respectively. The Copyright Act's preemption provisions regarding sound recordings fixed before February 15, 1972 would be delayed from February 15, 2047(14) until the same date in 2067.(15)

Presumptions relating to an author's death would be extended by an additional twenty years as well. The period of seventy-five years from the year of a work's first publication(16) or one hundred years from the year of its creation,(17) whichever expires first, would be lengthened to ninety-five years(18) and 120 years,(19) respectively. The presumption that, unless otherwise indicated, the author of a work has been dead for fifty years(20) shall be adjusted to assume that the author has been dead for seventy years.(21)

Works that were created but not published prior to January 1, 1978 would also receive additional copyright protection. The term of protection for such works would be extended from December 31, 2002(22) to December 31, 2012.(23) Should any such work be published prior to the expiration of the term of protection, it would receive an additional term of copyright, which the bill would increase from a current expiration date of December 31, 2027(24) to a term enduring until December 31, 2047.(25)

The duration of works with subsisting copyrights at the time the Copyright Act of 1976 was adopted would also be extended by twenty years. All copyrights which were in their first term on January 1, 1978 would still receive an original term of protection for twenty-eight years, but their renewal period would be extended from forty-seven years(26) to sixty-seven years.(27) Copyrights which were in their renewal term or had been registered for renewal as of January 1, 1978 would be extended to endure for ninety-five years from the date the copyright was originally secured,(28) rather than the term of seventy-five years currently provided.(29)

Finally, the Copyright Renewal Act of 1992(30) would be amended. That portion of the Copyright Act provides that the legal effect of licenses or transfers would not be affected by the automatic renewal provisions created under the Renewal Act.(31) The proposed extension legislation would incorporate the new terms of copyright protection into the bounds of the Renewal Act.(32)

This Comment advocates rejection of the Copyright Term Extension Act. Part II investigates the ultimate purpose of the Copyright Clause and defines the parameters by which the Extension Act should be evaluated. Part III considers the Extension Act in light of the goals sought to be achieved through copyright and finds that the bill falls short of meeting those ends. Part IV offers a rebuttal to the most common arguments proffered in favor of adopting the legislation. Part V suggests that the terms of copyright established under the Extension Act violate both the purpose statement and the "for limited Times" provision of the Copyright Clause. Part VI concludes that the Copyright Term Extension Act fails to fulfill the purpose of copyright in the United States, that the legislation may in fact be unconstitutional, and that the arguments in favor of its passage--tenuous at best--fail to justify its adoption.

II. The History and Tradition of Copyright

The Copyright Clause of the Constitution empowers Congress "[t]o promote the Progress of Science and useful Arts by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."(33) Implicit in this power is the requirement that Congress balance the interests of authors and publishers--monopolistic protection--against the interests of the public--unrestricted access to these works.(34) "In any copyright controversy, the Copyright Clause must be examined to determine the philosophy and values that it embodies and their consequences for a given issue."(35) An examination of the history of copyright and of the Copyright Clause of the Constitution(36) reveals a clear theme: Copyright ultimately exists for the benefit of the public.

Copyright is essentially a provision of monopolistic protection for authors(37) as an incentive for them to produce creative works(38) for the public good. The issue of "how long a copyright should last is as old as the oldest copyright statute and will doubtless continue as long as there is a copyright law."(39) The balance between rewarding authors and securing a benefit to the public is often a delicate one, and indeed it is at the heart of the debate over extending the term of copyright today.(40)

In the United States, both the public and authors who produce creative works have a stake in the final product, but it is clear that "[t]he central focus of American copyright philosophy is the public benefit from the production and dissemination of these works, rather than the private rights of the author."(41) The public derives a benefit from the creativity of authors whose works serve to promote science and the arts, and thereby enhance the culture of the nation. The two goals work in harmony: It is the "'primary purpose of the copyright law . . . to foster the creation and dissemination of intellectual works for the public welfare' [and t]he public benefits not only from an author's original work but also from his or her further creations."(42)

United States copyright law has its foundation in the English Statute of Anne,(43) which was the prevailing rule during the colonial period. That statute authorized a limited term of copyright(44) and provided only enough protection as would be necessary to stimulate authors to create works for the public benefit, which emerged as the ultimate goal.(45) Indeed, the caption of the Statute of Anne indicates its utilitarian purpose: "An Act for the Encouragement of Learning by vesting the Copies of printed Books in the Authors or Purchasers of such Copies, during the Times therein mentioned."(46)

In the very nascent stages of the United States, there was not a national standard for the provision of copyright, as the Articles of Confederation were silent in this area.(47) Despite this shortcoming, a majority of the states individually adopted copyright legislation.(48) Although not agreeing with precision on a uniform term of copyright, the significance of the public benefit aspect of copyright was apparent. In fact, ten of the thirteen states "clearly regarded copyright as providing a benefit to the public."(49)

When the Constitution was being written, it was generally agreed upon that a central power vested in the federal government to provide for copyrights would be the most effective system.(50) Though the Copyright Clause was never formally debated at the Constitutional Convention,(51) it was understood that offering a measure of reward was necessary in order to secure a greater goal--the public benefit to be gained from providing such protection. "There was a general feeling that the copyright laws would encourage authors to write and would be one avenue of attaining this goal of cultural competitiveness."(52) Support for this idea was broad indeed. James Madison, a staunch opponent of monopolies, "stressed . . . that the public good would be satisfied even though the author would also be benefited"(53) and endorsed copyright based upon those principles.(54)

It is significant to note that the Copyright Clause is one of only a few portions of the entire Constitution to recite a purpose. This gives copyright a special place in the framework of the Constitution. Rather than merely granting a power to Congress, the Constitution itself defines the way in which that power is to be exercised. It begins "by providing the justification for such legislation as Congress may choose to adopt: 'To promote the Progress of Science and useful Arts.' The public purpose factor is thus the first to be considered in the hierarchy of values of copyright analysis."(55) Any reward to authors for providing this benefit is secondary. Indeed, "the clause assumes that the production of 'Writings' by 'Authors' will serve this purpose and thus benefit the public."(56)

As the philosophy and interpretation of the Copyright Clause developed in the legislature and the judiciary following the ratification of the Constitution, the prominence of the public benefit element of copyright became undeniable.(57) "While protection of the author was a matter of concern, it was clearly subordinated to the overriding interest of the public and the public domain."(58)

In Wheaton v. Peters,(59) a case involving a challenge to a secondary work as violative of an alleged common law copyright, the Supreme Court made it clear that copyright is strictly a creature of statute and is neither a common law property right nor a natural right of the author.(60) "Wheaton's characterization of copyright protection as a monopoly in derogation of the rights of the public has become a basic analytic premise of subsequent copyright legislation and decisions."(61)

Since Wheaton, the Supreme Court has consistently reaffirmed the principle that "[t]he copyright law . . . makes reward to the owner a secondary consideration."(62) Authors are indispensable in providing the actual works which are sought for the public benefit, but it is that benefit itself which is the constitutional objective of copyright in the United States.(63) Twenty years ago, the Court had the opportunity to elaborate upon the concept of copyright and the balance between an author's reward and the public good. Justice Stewart, writing for the Court, stated:

For more than two hundred years copyright has been regarded as an avenue for authors and creators to contribute to a higher goal of enriching the public. Lord Mansfield, in 1785, stated what has today become axiomatic: Simply put, as reflected in the Constitution, "the ultimate purpose of copyright legislation is to foster the growth of learning and culture for the public welfare, and the grant of exclusive rights to authors for a limited time is a means to that end."(66) "As in the formative debates over the nature of copyright, it is the fundamental philosophic perception of the nature of copyright and its underlying purpose that will ultimately determine" the resolution of copyright controversies.(67) It is with the explicit Constitutional purpose of promoting the public good in mind that the Copyright Term Extension Act must be evaluated.
III. The Copyright Term Extension Act Tramples Upon the Copyright Clause

The Copyright Term Extension Act of 1995(68) lengthens the term of copyright protection for virtually every type of work which may be copyrighted in the United States.(69) It is clear that providing an additional term of protection, generally twenty years, to a copyright holder is beneficial to that individual.(70) It is the benefit to the public, a constitutionally required element of any copyright provision, that is lacking in this legislation. The Copyright Term Extension Act neither encourages the production of new works for the public good, nor does it provide any new benefit to the public where it extends the rewards available to present copyright holders.

A portion of the legislative history from the adoption of the Copyright Act of 1909 provides a relevant backdrop against which to evaluate the present legislation: "In enacting a copyright law Congress must consider . . . two questions: First, how much will the legislation stimulate the producer and so benefit the public, and, second, how much will the monopoly granted be detrimental to the public?"(71) The answer to the first question is that extending copyright in the manner proposed will not result in any increase in the production of creative works. The answer to the second is that the burden on the public will be compounded in a variety of ways.

The bill's most glaring flaw in this regard is that it provides an additional twenty years of protection for subsisting copyrights without any added benefit to the public. "[E]xtending the copyright term for subsisting works notwithstanding the constitutional objection that such protection is no longer necessary to the creation of the work [ ] may impede its dissemination."(72) By operation of reason, there will be no increase in the production of works which have already been created. Yet, under the Copyright Term Extension Act, virtually every copyrighted work now in existence in the United States will receive greater protection. In stark contrast, the public will suffer considerable harm in the form of a reduced public domain(73) and in having to shoulder the burden of the copyright monopoly for an additional two decades.(74)

"The principle of copyright is this. It is a tax on readers for the purpose of giving a bounty to writers."(75) This tax is tolerated only to the extent that the public will receive a reciprocal benefit through the production of creative works.(76) In light of the factors which must be considered in adopting copyright legislation, at least with respect to subsisting copyrights, this bill will not stimulate the producer since the work has already been produced.(77) The perpetuation of the copyright monopoly will not confer any benefit, but will instead work a hardship upon the public. When, as in this case, the public is being taxed on copyrights that already exist and cannot possibly contribute to an increase in the availability of works, the extension in copyright term is completely unjustified.

With regard to works that would be produced in the future, it is also unlikely that there will be any real incentive sufficient enough to compensate for the greater burden on the public that will certainly occur. Proponents argue that extending the term of copyright will give authors a broader window in which to exploit their works that will ultimately lead to an increase in the number of works produced.(78) The idea is that providing a greater return for one's efforts will stimulate him to create in the first place.(79) This argument has little support in theory or in fact. To be fair, however, it would not be erroneous to conclude that this bill is a prime example of creativity spawned by the motivation that one's heirs might benefit.

Under any term of copyright which provides protection to an author for a term greater than his lifetime, any additional benefit gained by extending the term will never be realized by the author and can have very little if any present value. To assert that since a copyright will endure for seventy years following one's funeral, instead of fifty years beyond their passing, that there will be a resultant appreciation in the number of creative works produced by authors is ridiculous. The fallacy of this position and the harm to the public was illustrated by Macaulay in 1841. He said:

If a person would not be moved to create under the present copyright regime, an additional twenty years' posthumous monopoly would not provide the incentive necessary to induce him to do so. Proponents of the extension only pay lip service to the public and have offered no proof, beyond self-serving rhetorical generalities desperately lacking in substance, that the incentive to create will be enhanced.(81) It simply "does not follow that a longer term automatically drives creative authors to work harder or longer to produce works that can be enjoyed by the public."(82)

Moreover, this position fails to take into account the effects upon the public from perpetuating the copyright monopoly by twenty years. These costs are both immediate and substantial. The public domain, our precious resource of past creative works, would be devastated. Works which would ordinarily enter the public domain fifty years after an author's death will now be unavailable for an additional twenty years. The result will be a smaller public domain, which is itself a cost, and indeed a diminished source of information for creators could prove to restrict future creativity as well. Professor Dennis Karjala notes the importance of the public domain and the threat posed by the Copyright Term Extension Act:

He continues to say: With a smaller pool of works upon which to draw, "the effect of an extension may well be a net reduction in the creation of new works."(85) Even if the public domain work which is drawn upon contributes only slightly to a new work, it is still beneficial. "The world goes ahead because each of us builds on the work of our predecessors. A dwarf standing on the shoulders of a giant can see farther than the giant himself."(86) Restricting the public domain, as the Act proposes, can scarcely be seen as promoting "the Progress of Science and useful Arts."(87)

The force of this argument is especially strong when evaluating corporate works, or works made for hire.(88) Creative works produced by companies, such as characters, movies, et cetera, are done so for the purpose of realizing a relatively immediate gain. The provision of an additional twenty years of protection, beyond the seventy-five years already afforded such authors, will be inconsequential in spurring creativity, yet very harmful to the public. Professor Karjala insightfully describes these implications of term extension on present and future creativity, and the public in general:

Macaulay's observations of more than 150 years ago support this position and echo strongly in the present context: "The copyright monopoly is sanctioned because it is limited; it encourages the production of intellectual works for ultimate public use and enjoyment."(91) Extending the term of copyright in the United States simply would not provide enough incentives for expanding the body of creative works such that the detriment to the public could be rationalized. "[T]he costs to the United States general public vastly exceed even the gains to those relatively few copyright owners who would benefit from the extension and [ ] the general public itself would receive no compensating benefits."(92) Professor Karjala summarizes the impact on the public domain that would be perpetrated by extending the term of copyright protection as proposed in the Copyright Term Extension Act: The Constitution dictates that copyright exists "to promote the Progress of Science and useful Arts."(94) The copyright extension legislation now pending before Congress miserably fails to satisfy that command. It does not provide any appreciable incentive to create, if indeed it offers any at all, and it would harm the public--the very same body that copyright is required to benefit. The Copyright Term Extension Act is repugnant to the fundamental concept of copyright as an accommodation of the individual for the promotion of the public good. Instead, it seeks to contort this principle to provide an economic benefit for a few individuals while passing the costs of that subsidy on to the public for decades. The Extension Act does not further the purpose of copyright, and it is counterproductive to the aims copyright seeks to achieve. For these reasons, the Copyright Term Extension Act must be rejected.
IV. A Brief Response to the Arguments in Favor of Term Extension

The arguments on both sides of the term extension issue are necessarily interrelated. This section will describe the primary arguments advanced by proponents of the Copyright Term Extension Act,(95) and will discuss their merits separately.(96) Since the conclusions are based on the arguments taken together, the relevant issues are first addressed individually, and then collectively to demonstrate that the legislation is unjustified.

A. The Case for Change

The arguments on each of these issues vary depending upon the advocate. I have attempted to objectively summarize the arguments in favor of the extension legislation, and to relate the most common elements of each position.(97)

1. Harmonization with European Copyright Law

One of the more common arguments in favor of term extension is that it would bring United States copyright law in line with European law.(98) The proponents argue that it would be wise to extend copyright protection in the United States to a term of the life of the author plus seventy years, because it would match the term recently adopted in Europe by a European Council Directive (EC Directive).(99) The arguments for harmonization hinge on a few other considerations, which are discussed below.

2. Rule of the Shorter Term

The EC Directive contains a provision, known as the "rule of the shorter term," that requires member states to recognize copyrights in foreign works for only so long as the work would be protected in its own country, or for the European Community term, whichever is shorter.(100) Proponents warn that if the United States fails to move to a life plus seventy year standard that United States copyright holders will receive 20 years' fewer protection on the European continent.(101) Representative Carlos Moorhead of California, sponsor of the Copyright Term Extension Act in the House, stated when introducing the legislation that without the bill "American creators will have twenty years less protection than their European counterparts."(102) Whereas European works will enjoy a life plus seventy year term, United States works would only receive copyright protection in Europe for life plus fifty years.(103)

3. Certainty in International Business Dealings

Supporters of extension legislation maintain that matching the term of copyright protection in Europe would level the international playing field. Both the United States and its European trading partners would have similar terms of copyright protection, and there would be no difficulties posed by the rule of the shorter term. By resolving these differences, there would be little conflict between domestic and European copyright laws, which would enhance certainty in international business transactions.(104) Copyright holders would understand what rights and responsibilities they would have on European soil because they would already be familiar with the same rules at home.

4. Technological Advancements

The contention that the increase in technological innovation requires longer terms of copyright protection is based on the fear that since copyrighted material is able to be transmitted with ease, relative to times past (i.e. through the internet and related means), incidents of copyright infringement will increase, and thus more protection is needed.(105) Professor Arthur Miller illustrates this argument:

5. International Balance of Trade and World Leadership

The arguments in favor of term extension, based upon trade implications, state that as a net exporter of intellectual property, the United States would protect its favorable trade balance by extending the term of copyright protection. These contentions stem from the perception that if the United States fails to conform its copyright term to that of the EC Directive, the economy and American authors would lose out on twenty years of income at a time when our position in the world intellectual property market is at its height. Senator Orrin Hatch describes this argument:

Proponents further argue that royalties to United States songwriters, estimated at $14 million annually, could be lost if copyright protection is not extended for an additional twenty years.(108) They conclude that "[i]n light of the recent European Union action, copyright term extension in the United States has become an essential element in safeguarding our national economic security."(109)

6. Copyright Royalties Should Support the Author and Two Succeeding Generations

Perhaps the most often cited reason for moving to a life plus seventy-year term of copyright is the argument that "the basic principal [sic] of copyright duration is that protection should exist for the life of the author and two succeeding generations."(110) The contention is that since people are living longer, the children and grandchildren of authors would outlive a term of life plus fifty years. Therefore, "societal changes necessitate a revision of our current laws."(111) The argument follows that in order to reconcile longer life expectancies with the alleged purpose of supporting the author's two succeeding generations, it is necessary to increase the term of years protected by copyright.

B. The Real Story: The Copyright Term Extension Act Will Not Secure Any of the Purported Benefits

A review of the arguments surrounding the Extension Act, and a consideration of the constitutional, legal, and common sense implications involved compels the conclusion that the Copyright Term Extension Act should be rejected. As stated previously, to evaluate the Extension Act, a consideration of the individual issues cannot be done in a vacuum. I will try to be as specific as possible when addressing the individual claims, but a thorough treatment of the issues at times requires their joint consideration.

Many of the positions championed by those in favor of the legislation are very shallow and are simply an attempt to gloss over the complexities of copyright law, the real-world implications involved, and the weaknesses in the case for extending the term of copyright protection.(112) Indeed, after the July hearings on the Extension Act, Representative Martin Hoke of Ohio commented that "the case for extending the copyright term is not as 'simple' as some proponents frame it,"(113) and Representative John Conyers of Michigan was said to have reconsidered his sponsorship of the bill.(114)

1. There is Already Very Little Harmony Among Copyright Laws and the Copyright Term Extension Act Will Not Foster International Certainty

a. Harmony between Europe and the United States is unrealistic

Achieving harmony among international laws(115) is an unattainable goal for a plethora of reasons. First, it is important to note that among the member nations of the European Community there are no uniform standards, even with respect to the duration of copyright protection to be afforded. Although the majority of European states now recognize a term of life plus seventy years, some nations adhere to the life plus fifty standard of the Berne Convention,(116) while others such as Spain have extended copyright protection for terms of life plus sixty years or longer, depending on the nation in question.(117) Moreover, some European nations, most notably France, vary copyright terms based upon the type of work involved.(118) In contrast, "[t]he United States, unlike some other countries, has never differentiated copyright term on the basis of the category of the work . . . ."(119)

Additionally, the proponents of the legislation overlook the fact that the EC Directive was intended to achieve, more than any other goal, harmony within the European Community. The real goal of the Directive was not to encourage outside nations to conform to the European standard, but to remedy the differences among the laws of member states and to provide a common standard among the nations of the European Community itself.(120) In fact, the Directive explicitly provides that individual "Member States should remain free to maintain or introduce other rights related to copyright . . . ."(121)

Since there is no harmony even among the copyright laws within the European Community, a capitulation by the United States with respect to copyright duration would do little to achieve an international consensus. First, there would still be no uniform law between the European Community and the United States. Second, this position completely ignores the rest of the world. There is simply no assurance, and no likelihood, that the rest of the world would follow the lead of either Europe or the United States. Professor J. H. Reichman illustrates this point: "[U]niformity even with respect to the term of protection remains an unrealistic goal. When the rest of the world is factored into the calculus, the goals of greater uniformity and harmonization . . . become chimerical, indeed."(122)

b. Numerous differences between United States and European copyright law would remain despite the Copyright Term Extension Act

The only provision of the Copyright Term Extension Act that would harmonize United States and European law would be the term of protection given to works created after January 1, 1978.(123) There is no evidence to indicate that the term of protection is so significant as to be the sole basis for changing copyright laws in the United States and abroad. Moreover, there are still a multitude of differences in other areas of United States and European copyright law that would not be reconciled by the Extension Act.

One such example is the treatment of anonymous and pseudonymous works. For such works, the EC Directive would establish a copyright term of seventy years after the work is lawfully made available to the public.(124) Present United States law provides a term of seventy-five years from publication or one hundred years from creation, whichever expires first.(125) Even though these terms of protection are currently greater than those sought to be achieved by the EC Directive, the Extension Act would increase each of the durations by yet another twenty years.(126) This failure to harmonize the copyright laws not only perpetuates the disparity between Europe and the United States, but it increases that gap as well.

Another example is the term of protection for works made for hire. The laws of most member states of the European Community do not recognize the work for hire doctrine; in those states, copyrights generally vest in individual authors.(127) Where applicable, the EC Directive provides these works with a copyright term of seventy years measured from the year of publication.(128) The analogous provision in the United States establishes a term of protection that lasts seventy-five years from first publication or one hundred years from the work's creation, whichever expires first.(129) Under the proposed legislation these terms would be lengthened to ninety-five years and 120 years, respectively.(130) Like anonymous and pseudonymous works, the works for hire provisions of the Copyright Term Extension Act do not unify United States and European law, rather they exacerbate the disparity between the laws.

A third difference between United States and European law is with respect to the treatment of audiovisual works. In the United States, audiovisual works are generally considered to be works made for hire, and the term of protection is governed accordingly.(131) Under the EC Directive, the term of copyright would last for seventy years longer than the life of the last of the following four people to survive: "the principal director, the author of the screenplay, the author of the dialogue and the composer of music specifically created for use in the cinematographic or audiovisual work."(132) In this respect, the EC Directive's term for audiovisual works "is at least equivalent to and may be longer than existing [United States] law or the proposal in H.R. 989."(133)

One of the more important differences between United States and European copyright law is the doctrine of moral rights.(134) Although the United States, a member of the Berne Union, recently recognized a limited concept of moral rights,(135) that right is not so extensive as that recognized in Europe.(136) Indeed, Congress has expressly recognized that

In Europe an author's rights to create and to publish, or not, in any form desired; to paternity; to modify and to prevent deformation; to prohibit excessive criticism; and to prohibit any other attacks on the personality of the creator, are almost universally recognized and may exist in perpetuity.(138) It is extremely unlikely that Europe will ever abandon the moral rights doctrine(139) or that the United States will ever adopt it. Even Senator Orrin Hatch, sponsor of the Extension Act in the Senate(140) has admitted this fact: Perhaps the most significant conflict between European and United States copyright law is the doctrine of fair use.(142) Fair use permits the liability-free(143) use and alteration of copyrighted works, under appropriate circumstances,(144) without the consent of the author, even when the original work is parodied.(145) The fair use doctrine and the European understanding of moral rights, quite simply, are mutually exclusive. This disparity is an irreconcilable difference that precludes harmonization between the copyright laws of Europe and the United States. Despite the arguments to the contrary(146) the Copyright Term Extension Act will not overcome this obstacle and is incapable of any meaningful harmonization.

Essentially, the only provision in the United States and European copyright laws that would be harmonized by the Copyright Term Extension Act is the term of protection given to works created after January 1, 1978, namely the life of the author plus seventy years thereafter. Otherwise, the Extension Act either perpetuates the differences between the laws, or simply cannot overcome the inherent barriers to harmonization. If uniformity in international copyright law is a goal truly sought to be achieved, the Copyright Term Extension Act is a very poor means to that end. Ultimately, attempting to reconcile United States copyright law with that of the European Community may be an exercise in futility. To assert that the Extension Act would do anything to achieve this task is simply preposterous.

2. International Considerations

a. Rule of the Shorter Term

i. The perceived harm is vastly overstated and plagued by shortsightedness

Those in favor of imitating the EC Directive often claim that doing so will avoid being affected by the rule of the shorter term.(147) They state that the difference between life plus fifty years and life plus seventy years will result in "20 years during which Europeans will not be paying Americans for their copyrighted works."(148) What these individuals fail to recognize is that during those same twenty years, Americans will not be paying Europeans for their copyrighted works either.

Copyright is strictly a creature of statute,(149) and as such its reach stops at national borders. All works, regardless of national origin, are afforded the same term of copyright protection in the United States.(150) In the European Community, European works will receive a copyright duration for the life of the author plus seventy years, but those same works would only be recognized in the United States for the life of the author plus fifty years. The proponents only tell half the story, and they portray the twenty year difference as a disparity that would impact only United States authors. It is true that American works will receive twenty years fewer protection in Europe than would European works, but likewise, European works will receive twenty years fewer protection in the United States than they would on their continent.(151) United States works will still receive the same amount of protection on both American and foreign soil.

The contentions that American authors and the United States economy will be cheated are shortsighted.(152) The copyrights that are presently set to expire are in works created during the 1920s. At that time the United States enjoyed a period of unprecedented growth and creativity. Hollywood emerged as the world headquarters of the motion picture industry, and the big band era, led by the likes of George Gershwin and Irving Berlin, was in full swing. Conversely, the European nations were recovering from the devastation of the first World War. While the United States was making movies and music, the European nations were fighting for their economic and political lives. As a result, we now enjoy a tremendous advantage in terms of the present world intellectual property market.(153)

In the past thirty years, Europe has begun to catch up with the United States in the production of copyrighted works, especially in the field of popular music. To paraphrase Henry Wadsworth Longfellow, hardly a man is alive today that remembers the day when there were no British musicians. In stark contrast to the roaring 20's, the fifties, sixties, and seventies saw a tremendous increase in competition in the United States market by foreign acts. During this period Great Britain alone produced such prolific artists as the Beatles, Led Zeppelin, The Who, The Rolling Stones, Elton John, Eric Clapton, and countless others.(154) Just as the European nations want to make use of the music from the big band era, so too will the next generation of Americans yearn to relive the "British Invasion."(155)

The point is this: If the United States were to extend copyright protection for an additional twenty years in hopes of preserving royalties for works created in the 1920s, we will force ourselves to pay for the right to use the foreign music of the past quarter-century for an additional twenty years as well.(156) The resultant cost to the American public, albeit many years down the road, could be staggering.(157) Since the great majority of these authors are alive today, the cost to the American public will not be realized for at least fifty years. There are some instances in which the fifty-year period has already begun to run, such as for some of the works of John Lennon who, tragically, was assassinated in 1980. Under present law, the term of copyright in his works would expire in 2030 (assuming they were created after January 1, 1978), and contributions such as Instant Karma! and Imagine will become part of the public domain. If the Extension Act is passed, these works would not become a part of the public domain until the latter half of the twenty-first century, and Americans would have to pay royalties to use them until that time.

Although Instant Karma! and Imagine were originally copyrighted in 1970 and 1971, respectively, the example is no less illustrative of the point. Even if it does not knock you off your feet, it is not hard to imagine that Americans will end up paying more royalties under the Extension Act than under the status quo; in fact, it's easy if you try.

If we maintain the present life plus fifty year term, the American public will have access to the vast universe of available works two decades sooner than if the Extension Act is adopted. The decision presently before Congress is whether to protect a very small number of copyright holders in very old works at the expense of compelling the entire American public to bear a twenty year economic burden in order to enjoy the works of today. Common sense, equity, policy concerns,(158) and most importantly the Constitution,(159) demand that the public be preferred to the wealthy heirs of artists who have already benefited from seventy-five years of income from the works their ancestors created long ago.

ii. Reciprocity

A key element desperately lacking in the Copyright Term Extension Act is a "rule of the shorter term" of its own. As presently constructed, the Extension Act would increase the term of copyright protection for all works in the United States;(160) absolutely no allowance is made for shorter durations of protection in the work's country of origin.

Under the proposed system, numerous copyrightable works will receive longer protection in the United States than they would in their native land. For example, a Japanese author who creates a work will enjoy a term of protection in the United States of life plus seventy years, but the copyright duration of the very same work will only last for life plus fifty years in Japan.(161) Considering the advances already made in the area of computer software alone, the future cost of extending copyright protection in the United States without respect to the term recognized elsewhere would be enormous. In terms of international trade considerations, the United States can scarcely afford to give away twenty years or more of protection without receiving anything in return, especially considering its trade deficit with Japan. Appropriating twenty years of copyright protection to Japanese intellectual property, when no such provision is made for United States works in Japan, would be tantamount to economic suicide.(162)

An example of the pitfalls presented by this failure to require reciprocity in copyright terms exists today in the writings of Sir Arthur Conan Doyle. Conan Doyle, author of the famous Sherlock Holmes mysteries among other works, died in 1930 and his works have been in the public domain in both England and Europe since 1981.(163) Because works first published before 1978 enjoy seventy-five years of protection in the United States(164) rather than the current life plus fifty year term,(165) "those works of Conan Doyle published in the 1920's remain under United States copyright."(166) The Extension Act would perpetuate this and similar discrepancies for an additional twenty years.

The proponents of the Extension Act cite the EC Directive's rule of the shorter term as a justification for maintaining equal treatment for American authors.(167) The lack of a similar provision in the Extension Act will precipitate a result directly opposite to that sought to be achieved: "copyright term extension without adoption of the rule of the shorter term could lead to trade imbalances against the United States in every area of the world except Europe."(168) By attempting to gain "equal" treatment abroad, the Extension Act would handicap authors and the public in the United States. More than five hundred years ago Christopher Columbus recognized that the world was larger than the European continent. That lesson should not be lost on United States copyright holders and legislators today.

b. International business

It is important to note at the outset that the largest market for United States works is the United States.(169) In a purely economic sense then, the fears of competition in the European market must be diminished in light of the larger scheme of the intellectual property market.

The proponents' general assertion that "conforming our intellectual property laws with those of our trading partners in the service of American competitiveness is critical,"(170) is nothing more than hollow rhetoric. This argument never demonstrates how following the European lead will ensure American competitiveness. Furthermore, there is no evidence beyond mere conjecture and speculation that the desired effect will be had by extending the term of copyright protection for an additional twenty years.

It is true that the United States' balance of trade in intellectual property is very favorable. Copyright industries "account for nearly 6% of the country's gross national product and have foreign sales of more than $36 billion annually, a figure exceeded only by the agriculture and aerospace industries."(171) As other American industries continue to struggle in the world market, intellectual property has "become one of the few bright spots . . . . The rest of the world does not want to buy American cars or steel in the quantities purchased in years past. The world does want, however, to buy our computer programs, our movie and television entertainment and our high-tech information."(172)

What the proponents fail to realize is that this strength has been achieved by adhering to the system of copyright that is laid out in the Constitution.(173) No other nation's copyright regime is based upon the goal of promoting the progress of science and useful arts, and it is no coincidence that following that command has enabled the United States to enjoy the prominence it maintains today. Departing from that goal simply to follow the European Community, a group that has never achieved a level of success commensurate with that of the United States, would be unwise. Rather than switching horses in midstream, we should stay the course that has brought us this far.

c. The United States system of copyright is the key to continued success

As Judge Pierre Leval has noted, "[o]ur copyright law has developed over hundreds of years for a very different purpose and with rules and consequences that are incompatible with [European law]."(174) It is this very system that has allowed the United States to ascend to its envious position as the world leader in the production of intellectual property. The keystone in the entire equation is our Constitution, and the Copyright Clause that commands that copyright exist "to promote the Progress of Science and useful Arts."(175)

The European nations have no such requirement and thus their laws have evolved differently. "Europe, whose copyright law is based more on a natural rights tradition . . . should not cause us to change our underlying intellectual property philosophy. . . . Our underlying policy has served us well, as shown by our dominant position in the worldwide markets, particularly for music, movies, and computer software."(176)

We should bear this in mind when deciding whether to shift our policies to conform with the EC Directive.(177) Since colonial times the United States has been a nation of creative authors. Operating under the principles of the Copyright Clause, the United States vaulted to a position of supremacy in the field of intellectual property, a stature it maintains to this day. It would serve us well to remember that our system is unlike any other, and it is that unique philosophy that has allowed us to achieve such a prominent place on the world stage. "[I]ndifference to such experience would be an exercise . . . of irresponsibility."(178) The United States must "not abandon what has worked for us so well in the past simply to imitate an untried European model that will provide an economic bonanza to the owners of a relatively small number of very old copyrights."(179) The Copyright Term Extension Act would do just that: it would signal the beginning of an American retreat from the principles that made it so strong in the first place. If America wishes to remain the world leader in the field of intellectual property, the Copyright Term Extension Act must not be adopted.

d. World leadership

The proposition that following European action will assert American leadership in the world intellectual property market is ridiculous. Regardless, proponents such as Mr. Bruce Lehman argue that:

This argument is nothing less than political rhetoric meant to inspire Congress to pass bad legislation. First, it is impossible for us to be "leaders" by following the example of what Europe has already done three years prior. Second, if the primary reason to change the copyright law is to conform with the European Union, why is it that Mr. Lehman characterizes the United States as the world leader three times in two sentences? The argument is counter-intuitive; it claims that if we are to be the world leaders, our main purpose in passing legislation should be to follow what Europe has done.

The United States has always set the pace in the field of intellectual property. The fact that the European Union has passed a directive aimed at harmonizing the laws of its member nations should not cause the United States to hastily follow suit. Instead, "[t]he United States should be leading the world toward a coherent intellectual property policy for the digital age and not simply following what takes place in Europe."(181)

3. Technological Advancements

The argument that copyright term extension would counterbalance the increased ease of infringing copyrights is ludicrous.(182) Piracy is piracy, regardless of the term of copyright protection the infringed work is afforded. If an infringer is going to disregard the protection of a life plus fifty year term, what logic is there in asserting that the infringer would respect the copyright in a work lasting for life plus seventy years? The answer is that there is none: a pirate is still a pirate.(183)

The proponents are certainly correct that the advent of new technologies exacerbates the problems of copyright infringement,(184) but the assertion that the remedy lies in granting a longer term of protection for copyrighted works is misplaced. The answer to piracy in the multimedia age lies in enforcement and other measures, not in extending the duration of the term of protection that was ignored in the first place.(185)

4. Subsidizing the Author, His Children and His Grandchildren Has No Foundation in United States Jurisprudence

The proponents of the legislation who claim that copyright was intended to support the author and two succeeding generations(186) are simply wrong. There is not, nor has there ever been, any such proposition in the United States.(187) Part II of this Comment thoroughly discussed the true purpose of copyright: to promote the progress of science and useful arts by securing a monetary reward sufficient, but no greater than necessary, to encourage authors to create works for the public good.(188) Part III described how the Copyright Term Extension Act fails to serve this Constitutionally mandated purpose.(189)

Those who support longer terms of copyright have overlooked an essential element of the current life plus fifty year term. Accepting as true the assertion that life expectancies have increased, so too will the life expectancies of authors. Since the fifty year period does not begin to run until the death of the author, longer life expectancies naturally bring about longer terms of copyright.(190) Therefore, whether or not Congress takes action, as lifespans increase so too will copyright terms.

It appears that the misconception about the author and two succeeding generations stems from one of the stated justifications supporting the adoption of the EC Directive. This two generations argument is merely one of twenty-seven "whereas" grounds for extending the term in Europe.(191)

The tradition in the United States has been to support the copyright monopoly only to the extent that it ultimately encourages production of works for the public good.(192) Ninety years ago the famous author Samuel Clemens (alias Mark Twain) expressed his displeasure with the suggestion that copyright be intended to benefit his grandchildren, stating that they could take care of themselves.(193) Any suggestion that copyright in the United States is intended to benefit succeeding generations is unfounded. One scholar has noted that rather than attempting to provide for successive generations, the United States originally moved to a "life plus" term to fulfill the conditions of its membership in the Berne Union. "Probably the most concrete reason for adopting a copyright term of the life of the author plus fifty years was that the Berne Convention requires a minimum term of copyright protection of the life of the author plus fifty years as a condition for membership in the Berne Union."(194)

Even if the two generations argument had a valid basis in United States jurisprudence, it is a poor justification for extending the term of copyright protection. First, the argument is "devoid of any relationship to a public benefit"(195) and thus would fail to support the Constitutional requirements and principles of copyright.(196) Second, "even if 'two generations of descendants' were a valid basis for extending the copyright term for works of individual authorship, it provides no justification whatsoever for extending the term for corporate authors,"(197) which is a prominent element of the Copyright Term Extension Act.(198)

The two generations argument is little more than a tactic by the heirs of hard working authors, cloaked in the faulty guise of equity, to live off the efforts of their parents and grandparents. The heirs that seek an extension in copyright term, and thus a perpetuation of their gravy train, have done nothing to contribute to the progress of science and useful arts. Instead they seek to deprive the public of access to all presently copyrightable works for an additional twenty years, so that they will be able to relax and collect royalty checks in return for the sweat of their grandparents' brows. This is contrary to the social contract embodied in the balance between authors, via copyright, and the public, through the public domain.

Professor Karjala summarizes the ridiculousness of the proponents' position:

5. Please Sirs, We Want Some More

In the more than two hundred year history of the Republic, the term of copyright protection has been changed only four times, most recently in 1976.(200) Now those who benefitted the most from the 1976 extensions in the duration of copyright have come before Congress to request an additional twenty years of income. If Congress grants their wish, will these same folks return twenty years later to claim that the goals of copyright are not being fulfilled and that they and their children, the author's great-grandchildren, are the rightful beneficiaries of the author's labors? This possibility is not far-fetched; a mere nineteen years ago the duration of copyright was extended for nineteen years, and now the same people who were the beneficiaries of that extension want the term of protection to be lengthened once again.

The Copyright Term Extension Act should be recognized for what it really is--an attempt by those heirs of gifted and hard-working authors who are about to lose a generous income, which they did nothing to earn, to protect and perpetuate that subsidy at the expense of the public. As Professor Karjala explains, the authors themselves knew that their works would not continue to support their heirs indefinitely, and created the works with that understanding in mind:

The Copyright Term Extension Act is offensive to the Constitution and treads upon the very purpose embodied in the Copyright Clause.(202) Passing the Extension Act would send a signal that those in Washington would prefer to turn their back on the Constitution that they took an oath to protect, and the American public whom they claim to represent, in favor of pandering to the fraternity of rich kids who wish to continue to be taken care of by their long lost relatives. It would be a tragedy if Congress left the public out in the cold so that the grandchildren of a very few successful authors could remain by their warm fireplaces collecting royalties. If the proponents of copyright term extension would expend as much time and energy adding to the body of creative works in our nation as they have spent to perpetuate their economic dominance over a few old copyrighted works, what a grand state our culture would be in. But alas, that is not the case.

Congress has the chance to put the greed to an end and say that seventy-five years, or more, of royalties are enough. It should seize this opportunity to shield the American people from monopolistic predators and to protect the precious public domain of works. It can do so by rejecting the Copyright Term Extension Act.

V. Challenges to the Constitutionality of the Copyright Term Extension Act

A. To Promote the Progress of Science and Useful Arts

The ramifications of the Copyright Term Extension Act's(203) inability to do little if anything "to promote the Progress of Science and useful Arts"(204) go far beyond its mere undesirability. The impact is much more serious than an ordinary discussion of public policy. In fact, the Extension Act's failure to satisfy the command of the Copyright Clause(205) may be fatal. Any bill that does not promote the progress of science and useful arts may be Constitutionally invalid. "[T]he introductory phrase of the Copyright Clause does not require that each of the 'writings' protected by copyright in fact promote science or useful arts, but only that Congress shall be promoting these ends by its copyright legislation."(206) The present bill fails to meet even that threshold requirement.

Congress' powers "'are subject to the limitation that it could not enact a provision which plainly did not and could not tend to promote the progress of science and arts.'"(207) "Implicit in this rationale is the assumption that in the absence of such public benefit the grant of a copyright monopoly to individuals would be unjustified."(208) Those provisions of the Act that extend copyright protection for an additional twenty years(209) beyond the life plus fifty-year term currently authorized(210) do not encourage the production of any new creative works and do not promote the progress of science and useful arts. As previously discussed at length, any incentive which vests more than a half century after an author's death is no inducement to create in the present.(211) Even if any such incentive could be identified, it would be so minuscule as to fall far short of satisfying the requirements of the Copyright Clause. Each of these provisions would exceed Congressional authority to grant copyrights and would be unconstitutional.

The extension of copyright terms for works already in existence(212) presents a particular problem. An added protection for works which exist now cannot, by definition, effectuate the creation of those works.(213) Regardless of the merits of extending the term of copyright to works which have been created, this added protection does not satisfy the purpose element of the Copyright Clause and "the extension of the term of protection for a work presently in copyright may arguably exceed the powers of Congress under the Copyright Clause of the Constitution."(214)

Despite the lack of caselaw directly on this issue, there is evidence to support the conclusion that extending existing copyrights in the manner proposed is unconstitutional. The constitutional purpose of promoting "the Progress of Science and useful Arts,"(215) is equally applicable to patents. With this in mind, it is instructive to see how the Supreme Court has applied this purpose statement in the area of patent law. In Graham v. John Deere Co.(216) the Court stated:

The Extension Act at the very least stretches the restraints imposed by the purpose statement, and is particularly offensive as it applies to subsisting copyrights. It extends the copyright monopoly without regard to social implications and certainly does not provide an appropriate public benefit in return. The Supreme Court has held this to be a violation with respect to patents, which strongly suggests that a copyright act authorizing similar or even greater extensions--justified under the identical constitutional power--will fail as well.(218)

Moreover, the Court has stated that restricting the public domain is contrary to the stated purpose of the Copyright/Patent Clause.(219) The Court has also indicated that if Congress oversteps the purpose statement, it is a constitutional violation.(220) The extension legislation would restrict public access for both current and future works for an additional twenty years with no rational relationship to the purpose of the Copyright Clause. This would be beyond the constitutional power of Congress.

A logical analysis of, and comparison to, patent law, supports the argument that the Extension Act violates the purpose statement of the Copyright Clause. This is true as to the provisions for copyright in works yet to be created as well as those currently in existence. The Act does not promote the progress of science and useful arts, and cannot be reconciled with the Constitution. Thus, the Copyright Term Extension Act is unconstitutional.

B. For Limited Times

It is quite possible that the term of copyright proposed in the Act would be unconstitutional as violating the "for limited Times" provision of the Copyright Clause.(221) Certainly this phrase prohibits Congress from granting either a perpetual copyright or one that is effectively perpetual, but where the boundary of "for limited Times" lies is a matter of speculation.(222) The lengths of protection provided in the Copyright Term Extension Act exceed "limited Times."(223)

The power to establish copyrights is clearly within the discretion of Congress,(224) and the courts have never directly addressed the limits of that power. The only guidance available to evaluate the "for limited Times" provision is the history of how Congress itself has interpreted that mandate. A retrospective of United States copyright law demonstrates that the terms of copyright have generally increased,(225) and although there has never been a judicial ruling on whether the terms that have been established are within Congress' constitutional power, it has been assumed that they are.

Perhaps the best judicial interpretation of the "limited Times" provision is the case of United Christian Scientists v. First Church of Christ.(226) In United Christian Scientists, Congress had enacted a private bill restoring copyright in the writings of the founder of the Christian Science Church, Mary Baker Eddy, and vesting the copyright in a faction of the church for a duration of approximately 150 years.(227) Although the case was resolved on Establishment Clause grounds,(228) the court stated in dictum that "the copyright granted . . . is exceptional in scope and duration. Even if not construed as a copyright in perpetuity, it purports to confer rights of unprecedented duration."(229) Beyond this case, judicial authority regarding the bounds of the "limited Times" provision is scarce.

For works created prior to 1978, copyright protection endures for a fixed term of years.(230) If indeed the term prior to the 1976 revisions was constitutional,(231) the provisions in the Copyright Term Extension Act extending copyright in pre-1978 works for an additional twenty years(232) would likely be constitutional.

The problem arises under the extension provisions for works created after 1978. Those works already enjoy a period of protection which lasts for the life of the author and fifty years thereafter.(233) Life plus seventy years, as contemplated by the Extension Act,(234) is an extremely long period of time.

Imagine a songwriter, who creates a work when she is thirty years of age.(235) If she attains her life expectancy of seventy-plus years, her copyright will endure for more than 110 years (the forty-plus years of her life after creation of the work, plus seventy years thereafter), and will not expire until well into the twenty-second century. This would certainly prevent the work from being accessible to the present generation, would effectively preclude its use by the succeeding generation and could possibly limit the uses by a third or fourth generation.(236) This copyright would last for much longer than a limited time.

The Extension Act runs afoul of "limited Times" in other aspects as well. For example, the provisions granting a term of copyright in anonymous works, pseudonymous works, and works made for hire would fix copyright duration for up to 120 years.(237) These terms would, like those of the songwriter, put access to the work far beyond the current and immediately succeeding generations.

A strong argument may be made that such lengthy copyrights are unconstitutional. A reasonable interpretation of the phrase "for limited Times" would be that copyright should endure only for a period long enough to ensure production of creative works.(238) Copyrights which last for 110 years, 120 years, or even longer, restrict public access to these works for much longer than a period of time necessary to elicit the work's creation. A creator who wishes to draw on these works to produce new creations will only be able to avail himself of works which were created more than a century ago.(239) Instead of becoming public domain material within a generation of its creation, copyrights in works will subsist for very lengthy periods. This is simply not compatible with a rational understanding of "limited Times."

The United Christian Scientists court criticized a 150 year copyright as appearing to violate this provision.(240) The terms of the Extension Act do not guarantee copyright in perpetuity, but they do explicitly provide for durations of 120 years, and the life plus seventy- year terms could last much longer than that. The Extension Act, at a minimum, effectively limits access for three generations. If a 150 year copyright is "exceptional in scope and duration,"(241) a copyright lasting for 120 years and possibly longer would seem to be exceptional as well. The copyrights are only "for limited Times" because they are scheduled to expire after a fixed number of years.

The length of these copyrights is far from "limited" as is meant in the Constitution. The same gentlemen that wrote the Constitution created the first copyright legislation in 1790.(242) They interpreted "for limited Times" as lasting for fourteen years originally, and absolutely no longer than twenty-eight years.(243) The 120 year provisions of the Extension Act, and possibly longer in some circumstances, are a far cry from the limitations once envisioned by the authors of the Constitution.(244)

As discussed, no court has yet passed judgment on the meaning of "for limited Times." In light of the history of copyright, and the practical effects of the proposed legislation, one can make a strong argument that the Copyright Term Extension Act authorizes copyrights that are beyond the "limited Times" mandate of the Copyright Clause. If the Extension Act was so construed, it could be successfully challenged as unconstitutional.

To conclude that the Act must be rejected on both policy and Constitutional grounds is not to begrudge authors of their due reward. Creators are indeed deserving of equitable compensation for toiling to produce the works which enrich our culture. But the issue is much larger than whether or not a work should be protected for an additional twenty years. "[W]e must never forget, that it is a constitution we are expounding,"(245) and the Constitution does not permit this type of monopoly without the provision of a sufficiently reciprocal public benefit. That benefit is utterly lacking in the Copyright Term Extension Act, and therefore it is inconsistent with the constitutional command that the progress of science and useful arts are to be promoted via copyright. "The constitution is to be considered . . . as a paramount law"(246) and thus the Copyright Term Extension Act, no matter how meritorious one may believe it to be, cannot be justified.

VI. Conclusion

The Copyright Term Extension Act represents a very unwise shift in policy, and it is perhaps unconstitutional as well. The Constitutional purpose of copyright is to promote the progress of science and useful arts by encouraging the production of creative works for the ultimate use, benefit, and enjoyment of the public; an economic reward to the author is simply a means to facilitate that goal. The Extension Act does nothing to promote the creation of new works, and extends the term for works which have already been created without a sufficiently reciprocal public benefit.

The arguments in favor of passage are either flawed or completely erroneous. The only concrete reason for the Extension Act is the perpetuation of royalties on copyrighted works that were created in the 1920s. Shifting American policy to conform with the European Union would abandon the centuries old tradition of copyright that has enabled the United States to achieve its premiere position in the world market for intellectual property. Moreover, the Extension Act would put the United States at a competitive disadvantage with respect to nations outside the European Community, as the legislation lacks protections, such as the rule of the shorter term, that would require reciprocity from foreign nations. Quite simply, the Extension Act "would provide a windfall to the heirs and assignees of authors long since deceased, at the expense of the general public, and impair the ability of living authors to build on the cultural legacy of the past."(247)

Prolonging the term of copyright in works that already have been created places these works outside of the public domain for an additional twenty years, which constitutes a significant cost in terms of public access and future creativity. In addition, it would extend the term of copyright protection for unprecedented durations. In these respects, the Extension Act contravenes both the purpose statement and the "for limited Times" provision of the Copyright Clause.

The Copyright Term Extension Act does not encourage the production of creative works, it fails to satisfy the purpose of copyright, it violates the "for limited Times" provision of the Copyright Clause, it would impose significant costs on the American public, it would burden present and future authors who would seek to rely on the public domain to create new and valuable works, and it could endanger the United States' position as the world leader in the field of intellectual property. The Constitution, common sense, policy considerations, and justice must surely outweigh the desire of a very few individuals to live off the work of their grandparents. The Copyright Term Extension Act should and must be rejected.

Joseph A. Lavigne(248)
*

1. Lord Camden, 17 Parl. Hist. Eng. 953, 1000 (H.L. 1774).

2. Copyright Term Extension Act: Hearings on H.R. 989 Before the Subcomm. on Courts and Intellectual Property of the House Comm. on the Judiciary, 104th Cong., 1st Sess. 9 (1995) [hereinafter Hearings on H.R. 989] (statement of Marybeth Peters, Register of Copyrights) (quoting House Comm. on the Judiciary, Copyright Law Revision: Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law, Discussions and Comments, 88th Cong., 1st Sess. (Committee Print 1963) (Part 2) (statement of Professor Ralph S. Brown)).

All citations to Hearings on H.R. 989 refer to the page numbers for the testimony delivered by each individual speaker (on file with The University of Detroit Mercy Law Review).

3. H.R. 989, 104th Cong., 1st Sess. (1995). The Senate introduced legislation identical to the House of Representatives bill. See S. 483, 104th Cong., 1st Sess. (1995).

4. 17 U.S.C.A. §§ 101-1010 (West 1996).

5. See H.R. 989, 104th Cong., 1st Sess. § 2 (1995).

6. 17 U.S.C. § 302(a) (1988).

7. H.R. 989, 104th Cong., 1st Sess. § 2(b)(1) (1995).

8. 17 U.S.C. § 302(b) (1988).

9. H.R. 989, 104th Cong., 1st Sess. § 2(b)(2) (1995).

10. 17 U.S.C. § 302(c) (1988).

11. Id.

12. H.R. 989, 104th Cong., 1st Sess. § 2(b)(3)(A) (1995).

13. Id. § 2(b)(3)(B).

14. 17 U.S.C. § 301(c) (1988).

15. H.R. 989, 104th Cong., 1st Sess. § 2(a) (1995).

16. 17 U.S.C. § 302(e) (1988).

17. Id.

18. H.R. 989, 104th Cong., 1st Sess. § 2(b)(4)(A) (1995).

19. Id. § 2(b)(4)(B).

20. 17 U.S.C. § 302(e) (1988).

21. H.R. 989, 104th Cong., 1st Sess. § 2(b)(4)(C) (1995).

22. 17 U.S.C. § 303 (1988).

23. H.R. 989, 104th Cong., 1st Sess. § 2(c)(1) (1995).

24. 17 U.S.C. § 303 (1988).

25. H.R. 989, 104th Cong., 1st Sess. § 2(c)(2) (1995).

26. 17 U.S.C. § 304(a)(2) (1988).

27. H.R. 989, 104th Cong., 1st Sess. § 2(d)(1)(A) (1995).

28. Id. § 2(d)(1)(B).

29. 17 U.S.C. § 304(b) (1988).

30. Pub. L. 102-307, 106 Stat. 266 (1992).

31. Id. § 102.

32. H.R. 989, 104th Cong., 1st Sess. § 2(d)(2) (1995).

33. U.S. Const. art. I, § 8, cl. 8.

34. See Stewart v. Abend, 495 U.S. 207 (1990). See also Sheldon Halpern et al., Copyright 2 (1992).

35. Howard B. Abrams, The Historic Foundation of American Copyright Law: Exploding the Myth of Common Law Copyright, 29 Wayne L. Rev. 1119, 1171 (1983) (footnote omitted).

36. See id. ("The history of the Copyright Clause, and its subsequent interpretation, are the logical starting points for any analysis of the issues of statutory and common law authority to protect intellectual property.").

37. The term "author" is used throughout this Comment in its general sense, meaning "he to whom anything owes its origin; originator; maker; one who completes a work of science or literature." Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 58 (1884) (internal quotation marks and citation omitted). For a more detailed discussion of the constitutional meaning of "author," see Goldstein v. California, 412 U.S. 546, reh'g denied, 414 U.S. 883 (1973); Sherry Mfg. Co. v. Towel King of Fla., Inc., 753 F.2d 1565 (11th Cir. 1985); L. Batlin & Son, Inc. v. Snyder, 536 F.2d 486 (2d Cir.) (en banc), cert. denied, 429 U.S. 857 (1976).

38. The term "works" as used throughout this Comment indicates any type of work that is capable of being copyrighted. The Copyright Act defines such works as "literary works; musical works including any accompanying words; dramatic works including any accompanying music; pantomimes and choreographic works; pictorial, graphic, and sculptural works; motion pictures and other audiovisual works; sound recordings; and architectural works." 17 U.S.C.A. § 102(a) (West 1996). Cf. 17 U.S.C. § 101 (1988).

39.H.R. Rep. No. 94-1476, 94th Cong., 2d Sess. 133 (1976), reprinted in 1976 U.S.C.C.A.N. 5659.

40. See discussion infra part III.

41. Abrams, supra note 35, at 1185-86. See also Stewart v. Abend, 495 U.S. 207 (1990); Howard B. Abrams, Copyright, Misappropriation and Preemption: Constitutional and Statutory Limits of State Law Protection, 1983 Sup. Ct. Rev. 809, 810 ("The interests of the public are paramount and the rights of the public and the public domain are accorded primacy over the secondary concerns of the authors.") (footnote omitted).

42. Hearings on H.R. 989, supra note 2, at 4 (statement of Marybeth Peters, Register of Copyrights) (quoting House Comm. on the Judiciary, Copyright Law Revision: Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law, 87th Cong., 1st Sess. 5-6 (Committee Print 1961) (Part 1)).

43. 8 Anne ch. 19 (1710).

44. Under the Statute of Anne, copyright in previously unpublished books was to last for a term of fourteen years with the possibility that the copyright could be renewed for an additional fourteen years. Copyright in books published prior to the adoption of the statute was to last for a single term of twenty-one years. 8 Anne ch. 19, §§ 1, 11.

45. Abrams, supra note 35, at 1140-41 n.59 (concluding that the results of copyright under the Statute of Anne were clearly deemed to benefit the public and that this argument was to become the justification for copyright.). For an extensive and authoritative treatment of the Statute of Anne and its implications on the development of United States copyright law, see id. at 1138-42.

46. Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105, 1109 (1990) (quoting 8 Anne ch. 19 (1710)).

47. Irah Donner, The Copyright Clause of the U.S. Constitution: Why Did the Framers Include It With Unanimous Approval?, 36 Am. J. Legal Hist. 361, 361 (1992).

48. Under the Articles of Confederation, twelve of the original thirteen states enacted copyright statutes. Of these states, six adopted the duration from the Statute of Anne and the other six adopted single terms ranging from fourteen years to twenty one years. See Hearings on H.R. 989, supra note 2, at 5-6 (statement of Marybeth Peters, Register of Copyrights); Donner, supra note 47, at 362. Connecticut was the first state to adopt a copyright statute and in less than forty months New York became the twelfth to do so. Of the original thirteen states, only Delaware failed to enact copyright legislation. Abrams, supra note 35, at 1173 n.219.

49. Abrams, supra note 35, at 1174.

50. In advocating adoption of the federal constitution, James Madison only devoted one paragraph of his Federalist Papers to the Copyright Clause. He used that space to generally endorse the concept of granting Congress the power to provide for copyrights to secure benefits to the public:

The Federalist No. 43, at 186 (J. Madison) (C. Beard ed. 1959).

51. Karl Fenning, The Origin of the Patent and Copyright Clause of the Constitution, 19 Geo. L.J. 109, 114 (1929) ("there was no debate in the Constitutional Convention with reference to this provision, and . . . there was no minute in the Committee with reference to it."). See also Donner, supra note 47, at 361 ("There was no recorded debate in the Constitutional Convention on September 5, 1787 when the proposed copyright clause was presented, and the clause was approved unanimously.").

52. Donner, supra note 47, at 362.

53. Id. at 377.

54. Though not expounded upon at the Constitutional Convention, the reasons for Madison's support of copyright as a means to benefit the public were later disclosed:

Abrams, supra note 35, at 1176 n.227 (quoting Madison, Aspects of Monopoly One Hundred Years Ago, 128 Harper's Mag. 489, 490 (1914) (published posthumously)). Madison's wisdom is certainly relevant to the present controversy as well.

55. Abrams, supra note 35, at 1175 (emphasis added).

56. Id. (emphasis added).

57. This principle transcended government lines years later during the era of the Confederate States of America. On March 11, 1861, following secession, the Confederacy adopted a constitution that incorporated the power to establish copyrights similar to that of the Federal Constitution. Following established practice, the public benefit purpose of copyright was recognized as being so essential to the existence of copyright law, that the phrase "to promote the progress of science and useful arts" introduced the clause granting copyright power under the Constitution of the Confederate States of America. See Jefferson Davis, 1 The Rise and Fall of the Confederate Government 566 (James M. McPhersen ed., Da Capo Press Inc. 1990) (originally published in 1881).

58. Abrams, supra note 35, at 1126.

59. 33 U.S. (8 Pet.) 591 (1834).

60. Id. at 661 ("Congress . . . instead of sanctioning an existing right . . . created it. This seems to be the clear import of the law, connected with the circumstances under which it was enacted.") (emphasis added). See also Caliga v. Inter Ocean Newspaper Co., 215 U.S. 182, 188 (1909) ("Congress did not sanction an existing right; it created a new one."); Globe Newspaper Co. v. Walker, 210 U.S. 356, 362 (1908); Bobbs-Merrill Co. v. Straus, 210 U.S. 339, 346 (1908) ("copyright property under the Federal law is wholly statutory, and depends upon the right created under the acts of Congress . . . ."); American Tobacco Co. v. Werckmeister, 207 U.S. 284, 291 (1907) ("In this country it is well settled that property in copyright is the creation of the Federal statute . . . ."); Holmes v. Hurst, 174 U.S. 82, 85-86 (1899); Thompson v. Hubbard, 131 U.S. 123, 151 (1889); Banks v. Manchester, 128 U.S. 244, 252 (1888); Halpern, supra note 34, at 6; Abrams, supra note 35, at 1126-27.

61. Abrams, supra note 35, at 1185.

62. United States v. Paramount Pictures, 334 U.S. 131, 158 (1948) (emphasis added).

63. See Fox Film Corp. v. Doyal, 286 U.S. 123, 127 (1932) ("The sole interest of the United States and the primary object in conferring the monopoly lie in the general benefits derived by the public from the labors of authors."). See also Mazer v. Stein, 347 U.S. 201, 219 (1954); Berlin v. E. C. Publications, Inc., 329 F.2d 541 (2d Cir.), cert. denied, 379 U.S. 822 (1964).

64. Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975) (footnotes omitted) (emphasis added).

65. Cary v. Longman, 102 Eng. Rep. 138, 140 n.b (1801) (quoting Sayre v. Moore (1785)).

66. House Comm. on the Judiciary, Copyright Law Revision: Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law, 87th Cong., 1st Sess. 5 (Committee Print 1961) (Part 1).

67. Abrams, supra note 35, at 1186-87.

68. H.R. 989, 104th Cong., 1st Sess. (1995).

69. See supra notes 6-32 and accompanying text.

70. Of course corporations or other legal entities may hold copyrights, but here "individual" is used in general terms applicable to all copyright holders regardless of their legal status.

71. H.R. Rep. No. 2222, 60th Cong., 2d Sess. 7 (1909).

72. Pierre N. Leval and Lewis Linman, Are Copyrights for Authors or Their Children?, 39 J. Copr. Soc'y 1, 15-16 (1991) [hereinafter Leval and Linman] (footnote omitted).

73. See infra notes 82-89 and accompanying text.

74. There is strong evidence that the term of protection under the 1909 Act was sufficient and that the present term of copyright is more than a sufficient incentive to induce the production of useful and artistic works:

Considering the number and quality of literary, cinematic, and pictorial works produced between 1909 and 1978, the 1909 Act's two-term system certainly seems to have provided sufficient incentive (including the possibility of fifty-six years of copyright protection) for the production of copyrightable works, while at the same time putting 85 percent or more of copyrighted works into the public domain after twenty-eight years.

R. Anthony Reese, Note, Reflections on the Intellectual Commons: Two Perspectives on Copyright Duration and Reversion, 47 Stan. L. Rev. 707, 726 (1995) (footnotes omitted).

75. Zechariah Chafee, Jr., Reflections on the Law of Copyright : I, 45 Colum. L. Rev. 503, 507 (1945) [hereinafter Chafee I] (quoting T. Macaulay, Copyright, in 8 Works 201 (Trevelyan ed. 1879) (1841 speech in House of Commons; debate on lengthening the statutory term of copyright)). Macaulay went on to conclude that "[t]he tax is an exceedingly bad one." Id.

76. See Abrams, supra note 35, at 1185 ("The monopoly is sanctioned because it encourages the production of intellectual works for ultimate public use and enjoyment.").

77. Hearings on H.R. 989, supra note 2, at 1 (statement of Dennis S. Karjala, Professor of Law, Arizona State University College of Law) ("The proposed extension would supply no additional incentive to the creation of new works--and it obviously supplies no incentive to the creation of works already in existence.").

78. Id. at 6 (statement of Bruce A. Lehman, Assistant Secretary of Commerce and Commissioner of Patents and Trademarks).

Granting a copyright term extension as propose[d] in H.R. 989 would provide copyright owners with an additional twenty years in which to exploit their works. The additional twenty years will enable copyright owners to increase the exposure of their works. This would result in greater financial rewards for the authors of the works, which will in turn, encourage these authors to create more new works for the public to enjoy.

Id. (statement of Bruce A. Lehman, Secretary of Commerce and Commissioner of Patents and Trademarks).

79. See Bill Holland, Industry Groups Lobby for Copyright Extension: Congress May Take Up 'Life-Plus-75' Bill in January, Billboard, Oct. 9, 1993, at 6.

80. Zechariah Chafee, Jr., Reflections on the Law of Copyright: II, 45 Colum. L. Rev. 719, 719-20 (1945) [hereinafter Chafee II] (quoting T. Macaulay, Copyright, in 8 Works 199-201 (Trevelyan ed. 1879) (1841 speech in House of Commons; debate on lengthening the statutory term of copyright)).

81. See, e.g., Hearings on H.R. 989, supra note 2, at 6 (statement of Bruce A. Lehman, Assistant Secretary of Commerce and Commissioner of Patents and Trademarks); Id. at 2 (statement of E. Randol Schoenberg, grandson of Austrian-American composer Arnold Schoenberg) ("The Copyright Term Extension Act of 1995 will be a further inspiration to those artists creating today, whose works are also not likely to receive their due during their lifetimes."). Mr. Schoenberg's remark, one that is widely accepted among proponents of extension, is particularly indicative of the ludicrous nature of this position. Schoenberg refers to authors not receiving their due, implying that the present term is insufficient to serve as an incentive to create. If the author perceives no benefit from creating a work, it is unlikely that extending that empty benefit for twenty years beyond the golden anniversary of the author's death will provide the remaining incentive that would be sufficient to entice him to put forth the effort to create, when he would have otherwise refrained under the status quo. He implies that authors will receive no present reward, which may not be the case: innumerable authors receive present, and often quite substantial, benefits from their work. He further overgeneralizes that artists do not get enough recognition during their lifetimes, again implying that a copyright monopoly for the author's life and fifty years thereafter is an insufficient incentive to create. Neither of these faulty premises can serve to justify extending the terms of copyright protection.

82. Id. at 8 (statement of Dennis S. Karjala, Professor of Law, Arizona State University College of Law).

83. Id. at 2-3 (statement of Dennis S. Karjala, Professor of Law, Arizona State University College of Law).

84. Id. at 6-7 (statement of Dennis S. Karjala, Professor of Law, Arizona State University College of Law).

85. Id. at 7 (statement of Dennis S. Karjala, Professor of Law, Arizona State University College of Law). See also Leval and Linman, supra note 72, at 14-16.

86. Chafee I, supra note 75, at 511 (internal quotation marks omitted).

87. U.S. Const. art. I, § 8, cl. 8. See Hearings on H.R. 989, supra note 2, at 8 (statement of Dennis S. Karjala, Professor of Law, Arizona State University College of Law) ("Authors of histories and biographies can also be inhibited from presenting independent analyses of earlier authors and their works by descendants who, for whatever personal reason, use copyright to prevent the publication of portions of protected works."). For an illustration of Professor Karjala's argument, see Salinger v. Random House, Inc., 811 F.2d 90 (2d Cir.), cert. denied, 484 U.S. 890 (1987).

88. See Hearings on H.R. 989, supra note 2, at 9 (statement of Dennis S. Karjala, Professor of Law, Arizona State University College of Law) ("The absence of any additional incentive for corporate authors from the extension of the copyright period to 95 years is also easily seen.").

89. Id.

90. Chafee II, supra note 80, at 719 (quoting Macaulay, Copyright, in 8 Works 199-201 (Trevelyan ed. 1879) (1841 speech in House of Commons; debate on lengthening the statutory term of copyright)).

91. Halpern, supra note 34, at 6.

92. Hearings on H.R. 989, supra note 2, at 1-2 (statement of Dennis S. Karjala, Professor of Law, Arizona State University College of Law).

93. Id. at 10 (statement of Dennis S. Karjala, Professor of Law, Arizona State University College of Law).

94. U.S. Const. art. I, § 8, cl. 8.

95. H.R. 989, 104th Cong., 1st Sess. (1995).

96. Of course the most prominent argument in favor of adopting the legislation is that the extra twenty years would act as an incentive to authors. This argument has been fully explained and disposed of in part III of this Comment. See supra notes 78-94 and accompanying text.

97. The various theories and arguments for and against term extension are numerous indeed. The following are only the most prominent of these contentions.

98. See, e.g., Hearings on H.R. 989, supra note 2, at 1-3 (statement of Bruce A. Lehman, Assistant Secretary of Commerce and Commissioner of Patents and Trademarks); 141 Cong. Rec. S3390-92 (daily ed. Mar. 2, 1995) (statement of Senator Orrin Hatch of Utah); 141 Cong. Rec. E379 and H1907 (daily ed. Feb. 16, 1995) (statements of Representative Carlos Moorhead of California).

99. Council Directive 93/98, 1993 O.J. (L 290) [hereinafter EC Directive].

100. Id. art. 7, para. 1. ("Where the country of origin of a work, within the meaning of the Berne Convention, is a third country, and the author of the work is not a Community national, the term of protection granted by the Member States shall expire on the date of expiry of the protection granted in the country of origin of the work, but may not exceed the term laid down in [this Directive]."). This rule is similar to that of Article 7(8) of the Berne Convention. See also id. pmbl. § 23.

101. See 141 Cong. Rec. S3390-92 (daily ed. Mar. 2, 1995) (statement of Senator Orrin Hatch of Utah); 141 Cong. Rec. E379 and H1907 (daily ed. Feb. 16, 1995) (statements of Representative Carlos Moorhead of California).

102. 141 Cong. Rec. E379 (daily ed. Feb. 16, 1995) (statement of Representative Carlos Moorhead of California).

103. See id.; EC Directive, supra note 99, pmbl. § 23 and art. 7, para. 1.

104. See 141 Cong. Rec. S3390-92 (daily ed. Mar. 2, 1995) (statement of Senator Orrin Hatch of Utah); 141 Cong. Rec. E379 and H1907 (daily ed. Feb. 16, 1995) (statements of Representative Carlos Moorhead of California).

105. See, e.g., 141 Cong. Rec. S3391 (daily ed. Mar. 2, 1995) (statement of Senator Orrin Hatch of Utah) ("In a world economy where copyrighted works flow through a fiber optic global information infrastructure, American competitiveness demands that we adapt our laws--and adapt them quickly--to provide the maximum advantage for our creators."); Arthur R. Miller, Extending Copyrights Preserves U.S. Culture, Billboard, Jan. 14, 1995, at 4.

106. Miller, supra, note 105.

107. 141 Cong. Rec. S3391 (daily ed. Mar. 2, 1995) (statement of Senator Orrin Hatch of Utah).

108. Amy Dawes, Film Disclosure Act Is Labeled 'At an Impasse', Hollywood Rep., June 2, 1995, at 1. See also Copyright Term Extension Bill Gets Mixed Reaction in House Hearings, BNA Pat., Trademark & Copr. L. Daily, July 25, 1995, at 4 ("ASCAP estimates that an additional $14 million per year in international music licensing revenues could come to U.S. songwriters if their copyrights were extended . . . .").

109. Hearings on H.R. 989, supra note 2, at 3 (statement of Quincy Jones, Songwriter).

110. Id. at 1 (statement of Mary Ellin Barrett, daughter of Irving Berlin). Accord 141 Cong. Rec. S3390-92 (daily ed. Mar. 2, 1995) (statement of Senator Orrin Hatch of Utah); 141 Cong. Rec. E379 and H1907 (daily ed. Feb. 16, 1995) (statements of Representative Carlos Moorhead of California); Hearings on H.R. 989, supra note 2, at 2 (statement of Quincy Jones, Songwriter) ("The intent of our copyright laws is to encourage creativity by guaranteeing the protection for the life of the creator plus two generations of his or her successors."); id. at 2 (statement of Marsha Durham) ("income from these songs which should rightfully have been a source of income for my father, his children and his grandchildren for many years."); id. at 1 (statement of Ellen Donaldson, Donaldson Publishing Co. and Vice-President of Amsong) ("the basic theory of copyright duration [is] that protection should exist for the life of the author and two succeeding generations . . . ."); id. at 1 (statement of Bob Dylan, Songwriter) ("The impression given to me was that a composer's songs would remain in his or her family and that they would, one day, be the property of the children and their children after them."); id. at 1 (statement of Alan Menken, Composer) ("The basic theory of copyright duration is that protection should exist for the life of the author and two succeeding generations . . . ."); id. at 2 (statement of E. Randol Schoenberg, grandson of Austrian-American composer Arnold Schoenberg) ("families . . . are the intended beneficiaries of the copyright term"). See also id. at 1 (statement of Virginia Mancini, widow of songwriter Henry Mancini); Bruce Haring, Guarding Copyrights On-Line, USA Today, June 15, 1995, at 6D.

111. Hearings on H.R. 989, supra note 2, at 2 (statement of Quincy Jones, Songwriter).

112. Professor Karjala has stated:

Hearings on H.R. 989, supra note 2, at 4 (statement of Dennis S. Karjala, Professor of Law, Arizona State University College of Law).

The self-centered nature of the proponents' position is summed up in the statement of Mary Rodgers, President of Amsong, a group formed to protect the interests of copyright holders and their heirs: "I wish, in a way, the public domain didn't exist at all. . . . The writer doesn't benefit from that. . . . [W]e think of ourselves as sort of squeaky clean, sweet, and pure . . . ." Robert Kolker, Theaters on Alert as Congress Looks at Copyright Law, Back Stage, Mar. 3, 1995, at 3. A great number of the parties called to testify before Congress for the July 13, 1995 hearings, like Ms. Rodgers, are members of Amsong.

113. Copyright Term Extension Bill Gets Mixed Reaction in House Hearing, BNA Pat., Trademark & Copr. L. Daily, July 25, 1995, at 4.

114. Id.

115. The argument in favor of uniformity assumes that it is even a laudable goal. Many commentators have argued against following the European lead. Professor Karjala succinctly frames the issue: "We need not [ ] seek uniformity for its own sake, if it means compromising other important principles . . . . [E]ven if harmonization is desirable, the question remains, who should harmonize with whom?" Hearings on H.R. 989, supra note 2, at 13 (statement of Dennis S. Karjala, Professor of Law, Arizona State University College of Law).

116. This standard remains the dominant one throughout the world. See id. at 13 (statement of Marybeth Peters, Register of Copyrights) (citing Sam Ricketson, The Berne Convention for the Protection of Literary and Artistic Works: 1886-1986 336 (Centre for Commercial Law Studies, Queen Mary College 1987)). See also id. at 13-14 (statement of Marybeth Peters, Register of Copyrights).

117. See 141 Cong. Rec. S3391 (daily ed. Mar. 2, 1995) (statement of Senator Orrin Hatch of Utah); Hearings on H.R. 989, supra note 2, at 13 (statement of Marybeth Peters, Register of Copyrights); Copyright Term Extension Bill Introduced in U.S. Congress, Online Libraries & Microcomputers, Apr. 1995, at 1.

118. Hearings on H.R. 989, supra note 2, at 13 (statement of Marybeth Peters, Register of Copyrights) (citing Sam Ricketson, The Berne Convention for the Protection of Literary and Artistic Works: 1886-1986 336 (Centre for Commercial Law Studies, Queen Mary College 1987)).

119. Id. at 31 (statement of Marybeth Peters, Register of Copyrights).

120. Id. at 29 (statement of William Patry, Professor of Law, Benjamin N. Cardozo School of Law) (noting that the European Community passed the Directive "[i]n order to harmonize the various laws of its member countries toward the goal of a single market without (internal) trade barriers . . . ."); see also id. at 13-14 (statement of Marybeth Peters, Register of Copyrights) ("The purpose of the EU Directive is to harmonize the terms of copyrighted material and related works among member countries.") (emphasis added).

121. EC Directive, supra note 99, pmbl. § 20.

122. Hearings on H.R. 989, supra note 2, at 24 (statement of Jerome H. Reichman, Professor of Law, Vanderbilt Law School); see also id. at 39 (statement of Marybeth Peters, Register of Copyrights) (concluding that "the United States does not have to move to life plus 70 at this time. It is not yet the international norm and clearly neither the Berne Convention nor the GATT TRIPs agreement require more than life plus 50.").

123. See 17 U.S.C. § 302(a) (1988); H.R. 989, 104th Cong., 1st Sess. § 2(b)(1) (1995).

124. EC Directive, supra note 99, art. 1, para. 3.

125. 17 U.S.C. § 302(c) (1988).

126. H.R. 989, 104th Cong., 1st Sess. § 2(b)(3)(A-B) (1995).

127. See Hearings on H.R. 989, supra note 2, at 15 n.43 (statement of Marybeth Peters, Register of Copyrights); EC Directive, supra note 99, art. 1, para. 4.

128. EC Directive, supra note 99, art. 1, para. 4. In the countries in which the work for hire doctrine does exist, adequate exceptions are made in article one, paragraph 4 of the EC Directive. Id. This too is an example of the diversity in the copyright laws among the members of the European Community.

129. 17 U.S.C. § 302(c) (1988).

130. H.R. 989, 104th Cong., 1st Sess. § 2(b)(3)(A-B) (1995).

131. See 17 U.S.C. § 302(c) (1988); cf. id. § 102(a)(7).

132. EC Directive, supra note 99, art. 2, para. 2.

133. Hearings on H.R. 989, supra note 2, at 15 (statement of Marybeth Peters, Register of Copyrights).

134. Article 6bis of the Berne Convention articulates the "moral right":

Halpern, supra note 34, at 6 (quoting Berne Convention, art. 6bis).

135. 17 U.S.C.A. § 106A (West 1996). This provision was implemented in 1990. Pub. L. 101-650, 104 Stat. 5128.

136. See, e.g., M. Nimmer & D. Nimmer, 2 Nimmer on Copyright, § 8D.02[A], at 8D-10 (1995) [hereinafter Nimmer on Copyright]; Halpern, supra note 34, at 6.

137. H.R. Rep. No. 2222, 60th Cong., 2d Sess. 7 (1909). See also Howard B. Abrams, Copyright, Misappropriation and Preemption: Constitutional and Statutory Limits of State Law Protection, 1983 Sup. Ct. Rev. 809, 810 (noting that in the United States theories of "copyright as a natural right of an author [have been] definitively rejected . . . .").

138. Martin A. Roeder, The Doctrine of Moral Right: A Study in the Law of Artists, Authors and Creators, 53 Harv. L. Rev. 554 (1940).

139. See, e.g., EC Directive, supra note 99, art. 9.

140. See S. 483, 104th Cong., 1st Sess. (1995).

141. Jeffrey L. Graubart, GATT and U.S. Moral Rights, Copr. World, June/July 1995, at 21 (quoting Senator Orrin Hatch of Utah, statement regarding 1990 implementation of the Berne Convention in the United States) (internal quotation marks omitted, alterations in original).

142. See 17 U.S.C. § 107 (1988). See generally Maxtone-Graham v. Burtchaell, 803 F.2d 1253 (2d Cir. 1986), cert. denied, 481 U.S. 1059 (1987); Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49 (2d Cir.) (L. Hand, J.), cert. denied, 298 U.S. 669 (1936); Folsom v. Marsh, 9 F. Cas. 342, 344-45 (C.C.D. Mass. 1841) (No. 4,901); Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105 (1990).

143. 17 U.S.C. § 107 (1988) ("the fair use of a copyrighted work . . . is not an infringement of copyright.").

144. Fair use may be applicable for purposes such as, but not limited to "criticism, comment, news, reporting, teaching (including multiple copies for classroom use), scholarship, or research . . . ." Id. (1988).

145. See generally Campbell v. Acuff-Rose Music, Inc. 114 S. Ct. 1164 (1994); Fisher v. Dees, 794 F.2d 432 (9th Cir. 1986); MCA, Inc. v. Wilson, 677 F.2d 180 (2d Cir. 1981); Elsmere Music, Inc. v. National Broadcasting Co., 623 F.2d 252 (2d Cir. 1980); Eveready Battery Co. v. Adolph Coors Co., 765 F. Supp. 440 (N.D. Ill. 1991); Tin Pan Apple, Inc. v. Miller Brewing Co., 737 F. Supp. 826 (S.D.N.Y. 1990); New Line Cinema Corp. v. Bertlesman Music Group, 693 F. Supp. 1517 (S.D.N.Y. 1988); Metro-Goldwyn-Mayer, Inc. v. Showcase Atlanta Cooperative Prod., 479 F. Supp. 351 (N.D. Ga. 1979).

146. This author is presently unaware of any such arguments; however, given the proponents' track record of ridiculous and completely unsubstantiated assertions, such arguments are not unlikely to surface.

147. EC Directive, supra note 99, art. 7, para. 1. See, e.g., supra notes 101-103 and accompanying text.

148. 141 Cong. Rec. E379 (daily ed. Feb. 16, 1995) (statement of Representative Carlos Moorhead of California).

149. See supra note 60 and accompanying text.

150. This is universally true with respect to unpublished works, 17 U.S.C. § 104(a) (1988), and it applies generally to published works, subject to certain qualifications. See id. § 104(b-c) (1988).

151. See, e.g., Hearings on H.R. 989, supra note 2, at 16 (statement of Dennis S. Karjala, Professor of Law, Arizona State University College of Law) ("There is no tension here between Europe and the United States. The tension, rather, is between the heirs and assignees of copyrights in old works versus the interests of today's general public in lower prices and a greater supply of new works. Europe has resolved the tension in favor of the owners of old copyrights. We should rather favor the general public.").

152. See, e.g., id. at 36 (statement of Jerome H. Reichman, Professor of Law, Vanderbilt Law School) ("While consumers worldwide display unabated appetites for American films, music, and computer programs, there is no reason to doubt that European, and increasingly, Asian and Latin American producers will not periodically mount serious challenges in the future.").

153. See supra notes 108-109 and infra notes 180-181 and accompanying text.

154. A brief sampling of other European acts in the field of popular music that have met with success in the United States in recent years include: ABBA, Rod Stewart, Genesis and Phil Collins, Black Sabbath and Ozzy Osbourne, Pink Floyd, Cream, Wings, The Scorpions, The Police and Sting, David Bowie, Ace of Base, Def Leppard, Billy Idol, U2, George Michael, and Queen, just to name a few.

155. In fact, there is already evidence of a shift in the balance towards British works. Boosey & Hawkes, an England-based international music publisher, reported in 1993 that "[b]oth royalties and sales of printed music achieved steady growth with significant improvement occurring in the USA. . . . Publishing activity continued to develop across a broad front with serious music, printed music and media music all showing good progress . . . ." Boosey & Hawkes -- Interim Results, Reg. News Serv., Sept. 28, 1993, at 2 (emphasis added).

156. There are indeed substantial costs to the United States public in adopting the legislation. David Nimmer has suggested that "[s]ince we can obtain an additional 20 years of protection at virtually no cost to ourselves by simply extending our own copyright term, there is simply no good reason not to do so." David Nimmer, U.S. Should Extend Copyright Terms, Billboard, Apr. 16, 1994, at 8 (internal quotation marks and citation omitted). With all due respect to Mr. Nimmer, there are certainly costs (especially in terms of economics and the public domain) to the United States, and the reasons not to "simply" extend our copyright term are compelling. With respect to the royalties issue, see Hearings on H.R. 989, supra note 2, at 36 (statement of Jerome H. Reichman, Professor of Law, Vanderbilt Law School) ("To the extent that longer terms of protection are enacted into law, they only augment the tribute that must be paid to successful foreign creators in the long term.").

157. See Hearings on H.R. 989, supra note 2, at 5 (statement of Dennis S. Karjala, Professor of Law, Arizona State University College of Law). As an example of this proposition, Professor Karjala stated:

[I]f Europeans will be paying for the right to use United States works in Europe, the United States public will be paying for the right to use both United States and European works here at home, increasing the windfall to copyright owners at the expense of United States consumers.

. . . .

. . . The United States public, however, as opposed to individual copyright owners, is not harmed by the absence of protection in Europe 50 years after the death of a United States author. Conversely, the public will pay a real cost, both as consumers and as potential creators of new works, to the extent the public domain is further reduced by the longer protection period.

Id. at 5, 15-16 (statement of Dennis S. Karjala, Professor of Law, Arizona State University College of Law).

158. See supra notes 37-64 and accompanying text (concluding that the Copyright Clause of the Constitution subordinates the reward to authors to the higher goal of promoting the progress of science and useful arts by encouraging the production of works for the public good.).

159. See discussion infra part V.

160. See H.R. 989, 104th Cong., 1st Sess. § 2(b)(1) (1995).

161. Hearings on H.R. 989, supra note 2, at 34 (statement of William Patry, Professor of Law, Benjamin N. Cardozo School of Law) (noting that the term of copyright duration in Japan is the life of the author plus fifty years.).

162. Apparently even Senator Hatch would agree that an asymmetrical transfer of copyright wealth for twenty years is a bad idea. Cf. 141 Cong. Rec. S3391 (daily ed. Mar. 2, 1995) (statement of Senator Orrin Hatch of Utah) ("At a time when we face trade deficits in many other areas, we cannot afford to abandon 20 years' worth of valuable overseas protection now available to our creators and copyright owners.").

163. Hearings on H.R. 989, supra note 2, at 13-14 (statement of Dennis S. Karjala, Professor of Law, Arizona State University College of Law).

164. 17 U.S.C. § 304(a) (1988).

165. Id. § 302(a).

166. Hearings on H.R. 989, supra note 2, at 13-14 (statement of Dennis S. Karjala, Professor of Law, Arizona State University College of Law).

167. If the proponents' doomsday prophecies of catastrophic harm to the United States at the hands of Europe are to be believed, then this same harm would befall the nation with respect to countries outside of Europe. If their forecasts are false, then there is really no threat from a longer term in Europe. Either way, the proponents contradict themselves, and the imagined harm would be visited upon the United States regardless of whether the Extension Act is passed (with respect to non-European nations), or there would be no harm in the first place (with respect to Europe itself). Under either scenario, we should be wary of listening to the "Chicken Littles" who are afraid that their copyrights will expire and will do anything they can to keep that from happening, including trying to convince Congress that the sky is falling.

168. Hearings on H.R. 989, supra note 2, at 37 (statement of Marybeth Peters, Register of Copyrights). See also id. at 46 (statement of Jerome H. Reichman, Professor of Law, Vanderbilt Law School) (concluding that "enactment of H.R. 989 in its present form would be premature and counterproductive. . . . Whether or not specific action is taken on the proposals contained in H.R. 989, Congress should enact an American version of the rule of the shorter term to limit some of the adverse effects of recent initiatives in the European Community.").

169. Id. at 40 (statement of Marybeth Peters, Register of Copyrights).

170. 141 Cong. Rec. S3393 (daily ed. Mar. 2, 1995) (statement of Senator Diane Feinstein of California).

171. Edwin Wilson, Authors' Rights in the Superhighway Era, Wall St. J., Jan. 25, 1995, at A14. See also Intellectual Property Rights Protection Under Special 301: Hearings on S. 301 Before the Subcomm. on Intellectual Trade of the Senate Comm. on Finance, 102d Cong., 2d Sess. 1 (1992) (statement of Senator Max Baucus of Montana, Chairman of the Senate Subcommittee on International Trade) ("With the exception of agriculture, intellectual property producers make a larger positive contribution to the U.S. trade balance than any other U.S. industry.").

172. J. Thomas McCarthy, Intellectual Property -- America's Overlooked Export, 20 U. Dayton L. Rev. 809, 811 (1995).

173. See Hearings on H.R. 989, supra note 2, at i (statement of Dennis S. Karjala, Professor of Law, Arizona State University College of Law) ("It may be worth noting here that our dominance is truly in current products of authorship, all of which were possible because of the rich and vibrant public domain passed down to us from earlier authors.").

174. Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105, 1128 (1990).

175. U.S. Const. art. I, § 8, cl. 8.

176. Hearings on H.R. 989, supra note 2, at 4 (statement of Dennis S. Karjala, Professor of Law, Arizona State University College of Law).

177. See id. at 14 (statement of Dennis S. Karjala, Professor of Law, Arizona State University College of Law) ("If the cost/benefit analysis required by our copyright tradition does not justify changing the social policy balances we have drawn, we might better use our influence to encourage the rest of the world to remain with our standard, and Europe to return to it, rather than follow a decision in Europe that was made without consideration of the factors we have always deemed crucial to the analysis.").

178. Dennis v. United States, 341 U.S. 494, 548 (1951) (Frankfurter, J., concurring).

179. Hearings on H.R. 989, supra note 2, at i (statement of Dennis S. Karjala, Professor of Law, Arizona State University College of Law).

180. Id. at 2, 10 (statement of Bruce A. Lehman, Assistant Secretary of Commerce and Commissioner of Patents and Trademarks).

181. Id. at 8 (statement of Dennis S. Karjala, Professor of Law, Arizona State University College of Law).

182. But see 141 Cong. Rec. S3390-92 (daily ed. Mar. 2, 1995) (statement of Senator Orrin Hatch of Utah); Miller, supra note 105.

183. Of course the proponents argue that since piracy diminishes the reward the author would have otherwise received, a longer term in which to earn a legitimate return will compensate for the royalties lost to piracy. This argument fails for the same reason that the "increased incentive" argument does: returns to be realized so far in the future never truly enter into the creation-incentive equation.

184. See 141 Cong. Rec. S3390-92 (daily ed. Mar. 2, 1995) (statement of Senator Orrin Hatch of Utah); Miller, supra note 105.

185. It is interesting to note that if the worldwide demand for such works is so great as Professor Miller and Senator Hatch suggest, it is only indicative of the great public desire for access to such works. This supports the argument advanced in part III that the public domain should not be restricted, but that we should encourage these works to be available to the public. Professor Reichman suggests that the arguments in favor of extension based upon the multimedia and technological concern are nothing more than "mere rent-seeking by powerful special interests." Hearings on H.R. 989, supra note 2, at 37 (statement of Jerome H. Reichman, Professor of Law, Vanderbilt Law School).

186. See, e.g., supra note 110 and accompanying text.

187. The legislative history of the Copyright Act does make reference to ensuring "an author and his dependents the fair economic benefits from the works," and notes that "[l]ife expectancy has increased substantially." H.R. Rep. 1476, 96th Cong., 2d Sess. 133-34, reprinted in 1976 U.S.C.C.A.N. 5659. However, nowhere in the Copyright Act or in the legislative history is reference made to supporting an author and his two succeeding generations. Id. See also Hearings on H.R. 989, supra note 2, at 12 (statement of Dennis S. Karjala, Professor of Law, Arizona State University College of Law) ("protection for two generations of descendants . . . has never been recognized as a goal of United States copyright law.") (emphasis added).

188. See discussion supra part II. This fundamental principle of the Copyright Clause endures, notwithstanding the novel and fallacious interpretation given to it by Senator Diane Feinstein of California, a cosponsor of the Copyright Term Extension Act:

141 Cong. Rec. S3393 (daily ed. Mar. 2, 1995) (statement of Senator Diane Feinstein of California).

189. See discussion supra part III.

190. See Hearings on H.R. 989, supra note 2, at 38 (statement of Jerome H. Reichman, Professor of Law, Vanderbilt Law School) ("a prolongation of the author's own life automatically tends to offset the need for longer protection after death.").

191. EC Directive, supra note 99, pmbl. § 5 ("Whereas the minimum term of protection laid down by the Berne Convention, namely the life of the author and 50 years after his death, was intended to provide protection for the author and the first two generations of his descendants; whereas the average lifespan in the Community has grown longer, to the point where this term is no longer sufficient to cover two generations;") (emphasis added). The emphasized portion of the quotation further indicates that the "two generations" argument is unique to Europe, and was not meant as a general statement regarding the purpose of copyright across the globe. Moreover, it supports the contention advanced in part IV.B.1.a, that the EC Directive was only intended to foster internal harmony among the member states of the EC. See supra note 121 and accompanying text.

192. In this regard, recall the statements of James Madison, an ardent opponent of monopolies, supporting the copyright power because it was a temporary limitation on public use. See supra notes 50, 53-54 and accompanying text.

193. Hearings on H.R. 989, supra note 2, at 27-28 (statement of Marybeth Peters, Register of Copyrights) (citing Proposal to Amend and Consolidate the Acts Respecting Copyright, 1906: Hearings on S. 6330 and H.R. 19853 Before the Joint Comm. on Patents, 59th Cong., 1st Sess. 116 (1906) (statement of Samuel L. Clemens, author)). Given that Clemens' wisdom is relevant to the present controversy, obviously reports of his death have been greatly exaggerated.

194. Halpern, supra note 34, at 6.

195. Hearings on H.R. 989, supra note 2, at 12 (statement of Dennis S. Karjala, Professor of Law, Arizona State University College of Law).

196. Professor Karjala's statement is further proof that the Copyright Term Extension Act would not meet the rational basis test necessary to support its constitutionality. See also discussion infra part V.A.

197. Hearings on H.R. 989, supra note 2, at 13 (statement of Dennis S. Karjala, Professor of Law, Arizona State University College of Law).

198. H.R. 989, 104th Cong., 1st Sess. § 2(b)(3) (1995).

199. Hearings on H.R. 989, supra note 2, at 12 (statement of Dennis S. Karjala, Professor of Law, Arizona State University College of Law).

200. 17 U.S.C. § 302 (1988). See infra note 225.

201. Hearings on H.R. 989, supra note 2, at i (statement of Dennis S. Karjala, Professor of Law, Arizona State University College of Law).

202. U.S. Const. art. I, § 8, cl. 8.

203. H.R. 989, 104th Cong., 1st Sess. (1995).

204. U.S. Const. art. I, § 8, cl. 8.

205. Id.

206. 1 Nimmer on Copyright, supra note 136, § 1.03[B], at 1-44.31. See Mitchell Bros. Film Group v. Cinema Adult Theater, 604 F.2d 852, 860 (5th Cir. 1979), cert. denied, 445 U.S. 917 (1980) ("[A]lthough Congress could require that each copyrighted work be shown to promote the useful arts (as it has with patents), it need not do so.") (footnote omitted). See also 1 Nimmer on Copyright, supra note 136, § 1.03[B], at 1-44.31 n.18.

207. Leval and Linman, supra note 72, at 12 (quoting A. Weil, American Copyright Law 31 (1917)).

208. 1 Nimmer on Copyright, supra note 136, § 1.03[A], at 1-44.28.

209. H.R. 989, 104th Cong., 1st Sess. § 2(b)(1-2) (1995).

210. 17 U.S.C. § 302(a) (1988).

211. See supra notes 80-82, 90 and accompanying text.

212. H.R. 989, 104th Cong., 1st Sess. § 2(b)(3)-(d) (1995).

213. This analysis applies, by implication, to section 304 of the Copyright Act of 1976, which extended the term of copyright for works in existence at the time that Act took effect. See 17 U.S.C. § 304(a-b) (1988). Although a challenge to the Constitutionally of section 304 could be maintained on these grounds, the extension now contemplated by H.R. 989 exacerbates the problem and amplifies the need for judicial scrutiny.

214. 1 Nimmer on Copyright, supra note 136, § 1.05[A][1], at 1-44.35 to 1.44-36. Professor Nimmer further concludes that "[s]uch an extension may also constitute a violation of the freedom of speech guarantee of the First Amendment." Id. The First Amendment analysis is beyond the scope of this Comment, but could constitute a very credible challenge to the Extension Act, and potentially even the present Copyright Act. To examine the foundations of this argument, see id. § 1.10[C], at 1-83 to 1-86.

215. U.S. Const. art. I, § 8, cl. 8.

216. 383 U.S. 1 (1966).

217. Id. at 5-6.

218. It is necessary to note that a number of lower federal courts have held that Congress may extend patent protection without exceeding its constitutional power. Each of these decisions were made prior to the Supreme Court's holding in Graham, and their continued viability is in serious doubt. See 1 Nimmer on Copyright, supra note 136, § 1.10[C][1], at 1-86 n.57.

219. See Graham, 383 U.S. at 5-6. See also Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 146 (1989); Cuno Eng'g Corp. v. Automatic Devices Corp., 314 U.S. 84, 91 (1941).

220. Graham, 383 U.S. at 5-6.

221. U.S. Const. art. I, § 8, cl. 8.

222. See, e.g., Halpern, supra note 34, at 6.

223. How a court would decide this issue depends both upon the circumstances of the case (i.e. the type of work involved) and the nuances of the individual court. This Comment offers a general argument that the duration of copyright under the Copyright Term Extension Act is not "for limited Times," as required by the Constitution. This argument is made on Constitutional grounds only. The issue of whether the Act violates the "limited Times" provision of the Copyright Clause is completely separate from a discussion of the bill's merits.

224. U.S. Const. art. I, § 8, cl. 8. See Pennock & Sellers v. Dialogue, 27 U.S. (2 Pet.) 16-17 (1829). See also Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, reh'g denied, 465 U.S. 1112 (1984); Classic Film Museum, Inc. v. Warner Bros., Inc., 453 F. Supp. 852 (D. Me. 1978), aff'd, 597 F.2d 13 (1st Cir. 1979).

225. Without regard to copyrights subsisting at the time of each act's adoption, the following terms have been provided in the copyright acts of Congress. In 1790, a system was established under which a copyright endured for an original term of fourteen years with a possibility of a renewal term for an additional fourteen years. Act of May 31, 1790, ch. XV, § 1, 1 Stat. 124. When the 1790 Act was repealed in 1831, the period provided in the new act doubled to an original term of twenty-eight years, but the renewal provision continued to provide for an additional term of fourteen years. Act of Feb. 3, 1831, ch. XVI, 4 Stat. 436, § 2. In 1909, the twenty-eight year original term remained constant, but the renewal term was lengthened to match the original duration of twenty-eight years. 17 U.S.C. § 24 (1909 Act). In 1976, the current term of the life of the author and fifty years thereafter was established. 17 U.S.C. § 302(a) (1988). For an overview of the developments in the scope and subjects of copyright, in addition to the various durations of protection afforded, see Robert A. Gorman and Jane C. Ginsburg, Copyright for the Nineties 7-13 (4th ed. 1993). See also Hearings on H.R. 989, supra note 2, at 26-28 (statement of Marybeth Peters, Register of Copyrights).

226. 829 F.2d 1152 (D.C. Cir. 1987).

227. Id. at 1169-70.

228. Id.

229. Id. at 1169 (footnote omitted).

230. See 17 U.S.C. § 304 (1988).

231. Professor Nimmer expresses serious reservations about the constitutionality of these provisions. 1 Nimmer on Copyright, supra note 136, § 1.10[C][1], at 1-85 to 1-86 ("[I]t must be concluded that a serious question exists as to the constitutional validity of the Section 304 extension . . . ."). The validity of term extensions prior to the 1976 Act was assumed without discussion in Epoch Producing Corp. v. Killiam Shows, Inc., 522 F.2d 737 (2d Cir. 1975), cert. denied, 424 U.S. 955 (1976). Since section 304 is not at issue here, and since the validity of that section has not yet been successfully challenged, for purposes of this Comment, I will presume those provisions to be valid.

232. H.R. 989, 104th Cong., 1st Sess. § 2(d) (1995).

233. 17 U.S.C. § 302(a) (1988).

234. H.R. 989, 104th Cong., 1st Sess. § 2(b)(1) (1995).

235. This is a modest estimate, especially in the popular music field where many artists begin composing songs in their teens or early twenties. See, e.g., Hearings on H.R. 989, supra note 2, at 1 (statement of Bob Dylan, Songwriter) ("My first song was published . . . [when I] was twenty years old . . . .").

236. Michael Hart of Project Guttenberg has noted that "additional copyright protections keep works away from '99.9% of the people in the world. You're trying very hard to keep stuff away from people very effectively.'" Haring, supra note 110, at 6D.

237. H.R. 989, 104th Cong., 1st Sess. § 2(b)(3)(B) (1995).

238. Indeed, this interpretation may be required by the Constitution. See supra notes 39-41, 55-66, and accompanying text.

239. Recall the dangers such a situation may cause. See supra notes 83-93, and accompanying text.

240. United Christian Scientists, 829 F.2d at 1169 ("[T]he copyright granted . . . is exceptional in scope and duration. Even if not construed as a copyright in perpetuity, it purports to confer rights of unprecedented duration.") (footnote omitted).

241. Id.

242. Act of May 31, 1790, 1 Stat. 124.

243. The first United States Copyright Act authorized an original term of fourteen years with a possibility of renewal for an additional fourteen years. Id., ch. XV, § 1.

244. Professor Howard Abrams indicates that "the first Congress conceived of copyright as a statutory incentive designed to promote social goals rather than as a natural or property right of an author." Howard B. Abrams, Copyright, Misappropriation, and Preemption: Constitutional and Statutory Limits of State Law Protection, 1983 Sup. Ct. Rev. 809, 816 n.38 (citing Patterson, Copyright in Historical Perspective 197-202 (1968)).

245. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407 (1819).

246. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 178 (1803).

247. Hearings on H.R. 989, supra note 2, at 1 (statement of Dennis S. Karjala, Professor of Law, Arizona State University College of Law).

248. Electronic mail: <redwing@michbar.org>. I wish to acknowledge the help of the following people: Ms. Mary-Karen Neimeier whose unwavering support, patience and encouragement through difficult times made completion of this project possible; the Honorable Joe Knollenberg (R-MI) and Mr. Paul Poister, whose assistance helped provide valuable information for this Comment, especially following the July 1995 hearings on H.R. 989; Professor Dennis S. Karjala and Mrs. Linda Lyons for their suggestions and feedback on earlier drafts of this Comment; and Mr. Jonathan M. Sherman for his tireless efforts to help to bring it all together in time to make a difference. Copyright © 1996, Joseph A. Lavigne, all rights reserved.