Opposing Copyright Extension

Commentary on Copyright Extension

The Term of Copyright
by
Dennis S. Karjala
from
Growing Pains: Adapting Copyright for Education and Society

(Laura N. Gasaway ed., 1997, Fred B. Rothman & Co.)


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Chapter Three
The Term of Copyright*

by

Dennis S. Karjala

Professor of Law

Arizona State University

From

Growing Pains: Adapting Copyright for Education and Society

(Laura N. Gasaway ed., 1997, Fred B. Rothman & Co.)

I. INTRODUCTION

Congress is now considering legislation that would extend the existing terms of copyright protection by an additional 20 years. This essay explains why the adoption of this legislation would deal a severe blow to the progress of United States culture and scholarship. If the bills have not become law by the time this essay appears, it seeks active support against the bills from everyone who, personally or professionally, is concerned with the maintenance of a vibrant and viable public domain as a basis for the creation of new works and unfettered scholarship. If, sadly, the bills have in fact become law, this essay may at least stand as a requiem for the unnecessary and indeed wasteful death of a major portion of our public domain.

This book is aimed primarily at librarians. Therefore, while defeat of the extension legislation is of vital importance to nearly all scholars and other creative persons, a few words directed particularly to librarians are in order. Libraries and librarians collect, categorize, archive, maintain and make available works whose primary function is to deliver information (including information in the form of entertainment). Many of these works are protected under copyright law. Compliance with copyright by librarians in carrying out their social role has become increasingly complex, especially in view of the rapid growth of digital networks.(1) Given the already very long term of copyright, however, it might appear that extension of the term would not greatly exacerbate these compliance difficulties. After all, the majority of works handled by libraries and librarians are likely to be under copyright even without any further extensions. Under this view, librarians may not feel overly concerned with the extension proposals.

This view, however, is both short-sighted and fundamentally at odds with the traditional role played by librarians, both in the development of our social culture in general and with respect to copyright legislation in particular. Copyright legislation typically involves heavy negotiation between the interested private parties, with Congress largely playing the role of mediator.(2) This process can leave the general public underrepresented when legislative compromises are made between owners' and users' rights.(3) Librarians and educators have traditionally been among the most vocal and most effective opponents of the trend toward ever broader, stronger and longer copyright rights, not just or perhaps even primarily because of direct professional interests in lower prices and freer use but also because of a more fundamental commitment to the broader public interest.

A vibrant and growing public domain is a vital part of that public interest. Yet, the librarians as a group have been notably silent on the question of the copyright extensions. Apparently more immediately pressing are questions of copyright regulation in the digital network environment, the National Information Infrastructure, and the White Paper.(4) There is no doubt about the importance of these issues, but it is also true that we will almost surely be forced to rethink in a few years whatever solutions we come up with today, after the rapid development of the underlying technology settles down and we are able to see the issues with better clarity. The copyright extensions, however, if adopted, will result in a devastating and permanent 20-year loss to the public domain, with no public benefit and incalculable potential harm to the healthy progress of science and culture. Now perhaps more than ever these traditional effective voices on behalf of the public interest need to be heard by Congress.

II. THE PROPOSED LEGISLATION

Under the Copyright Act of 1976, as amended prior to the extension legislation,(5) copyright on post-1977 works lasts for 50 years beyond the death of the author, or for 75 years in the case of works made for hire.(6) Copyright on works published before 1978 continue for 75 years from publication.(7) Pre-1978 unpublished works remain under copyright for these same periods, but in no event does the copyright expire before the year 2003; if published before 2003, the copyright continues until 2028.(8) These works may be as old as our Republic or even older, such as letters or diaries of the founding fathers, provided they were never published prior to 1978 (when unpublished works were first brought into the federal copyright system).

The proposed legislation would extend the terms of all copyrights, including copyrights on existing works, by 20 years: for individual authors, the copyright term would continue for 70 years after the death of the author, while corporate authors would have a term of protection of 95 years. Unpublished or anonymous works would be protected for a period of 120 years after their creation. Copyrights in pre-1978 unpublished works will continue to the year 2003; if these already ancient works are published prior to 2003, their copyrights would continue in force through the year 2047.

A. Why Extension is a Bad Idea

Various arguments have been offered in support of extension. Some say that the extension is necessary as an incentive for the creation of works. Others argue that the current period for individual authors -- 50 years after the individual's death -- was intended to provide an income stream for two generations of descendants and that the longer human life span now requires a longer copyright term. Some maintain that we should adopt an extended term because the countries of the European Union have done so, in order to "harmonize" our law with theirs. Still others claim that the longer copyright term is necessary to prevent royalty inequality between United States and European copyright owners.

None of these arguments considers the costs to the public in this country of an extended copyright term. Moreover, as shown in more detail in later sections of this chapter, the arguments are either demonstrably false or, at best, without foundation in empirical data. If incentives were the issue, there would be no need to extend the copyrights on existing works, even if one were to accept the dubious proposition that the extra 20 years provide an incentive for the creation of new works. If we were worried about two generations of individual descendants, we should prohibit the first generation from selling the copyright outright, and we would have no need to extend the term for corporate authors. Harmonization, while overvalued in any event, is not achieved under the proposed legislation. The supposed royalty inequality, too, fails to provide a basis for extending the term -- we do not blindly follow Europe's welfare legislation in other areas, and Europe's choice to supply extended welfare to "its" copyright owners provides no basis for our doing the same. (Because supporters of extension consistently and unjustly try to portray the bills as benefiting creators and authors,(9) it is particularly important to bear constantly in mind that extension benefits copyright owners and not creative authors, who will already have been dead for 50 years.) Moreover, the cost to the general public in the United States vastly exceeds even the gains to those relatively few copyright owners who would benefit from the extension, and the public receives no compensating benefits.

Once the errors in the arguments for increasing the term have been exposed, the real reason for the legislation becomes clear: the maintenance of royalty revenues from those relatively few works from the 1920s and 1930s that continue to have significant economic value today. The continued payment of these royalties is a wealth transfer from the U.S. public to current owners of these copyrights. These copyright owners are in most cases large companies and, in any case, may not even be descendants of the original authors whose works created the revenue streams that started flowing many years ago.

The works about to enter the public domain, absent this legislation, were created in 1922. At that time and for many years thereafter, society's "bargain" with the actual authors was a period of exclusive rights under copyright for a maximum of 56 years. Those authors produced and published their works with the understanding that the works would enter the public domain 56 years later. Yet, notwithstanding that bargain, the period was extended by 19 years in 1976 to 75 years.(10) Then, 19 years later, these same copyright owners returned to Congress seeking yet another extension to continue the wealth transfer for another 20 years.

This wealth transfer from the general public in this country to copyright owners is, moreover, only a part -- probably a small part -- of the total cost that we and coming generations will bear if the extension is adopted. It is important to remember that the extension would apply to foreign works as well as those produced in the United States. Therefore, in order to maintain a flow of revenue to the owners of domestic copyrights, the general public will continue to pay on foreign copyrights from the 1920s whose terms must also be extended. No one has shown that there will even be a net international inflow of royalties from the works at issue.

Even worse, to maintain the royalty revenues on those few works from this period that have continued economic viability, the copyrights must be extended on all works. This includes letters, manuscripts, forgotten films and music, out-of-print books, and much more, all potential sources on which current authors and scholars could otherwise base new works. Copyrights can and usually do have very complicated multiple ownership so many years after an author's death. The transaction costs of negotiating for use can be prohibitively high, even for works that no longer have economic value. None of the arguments for extension take into consideration the loss to both revenue and culture represented by the absence of valuable new works that are not created because underlying works that would have served as a foundation remain under copyright. The magnitude of this loss, of course, can never be known, but that makes it no less real or substantial.

Senator Hatch has offered as an argument in support of the extension the music of Walter Donaldson in the 1927 film "The Jazz Singer."(11) The Senator says, "The historical significance of that motion picture, the first sound film to be commercially released, can hardly be overstated."(12) It would, of course, be fatuous to assert that extended copyright is necessary as an incentive for the preservation of a film of such historical importance. Indeed, it is precisely the historical significance of the film that calls most strongly for allowing it to go into the public domain, so that film historians and others can make full and effective use of it. As long as it remains under copyright, many important uses of this cultural milestone will die aborning because of the transaction and royalty costs involved in obtaining permission from the copyright owners.

The creation of new works is dependent on a rich and vibrant public domain. Without good reason to expect a substantial compensating public benefit, we should not risk tying the hands of current creative authors and making them less competitive in domestic and international markets just to supply a financial windfall to owners of copyrights in works created long ago. Santa Claus and the Easter Bunny are justly part of the public domain that anyone can use every Christmas and Easter season. Eventually Mickey Mouse and Bugs Bunny should also join our freely available cultural heritage. That is a crucial part of the copyright "bargain" that the public made at the time these works were created.

III. UNITED STATES COPYRIGHT POLICY

Both Congress and the courts have uniformly treated U.S. copyright law as an instrument for promoting progress in science and the arts to provide the general public with more, and more desirable, creative works:

U.S. copyright tradition is in this respect philosophically different from that of many other countries that treat intellectual property as natural rights of individual creators. Under our system, Congress need not recognize intellectual property rights at all, but if it does, the purpose must be to promote innovation in science and the useful arts.

Our system of copyright protection is delicately balanced. We recognize exclusive rights in creators so that consumers have available an optimal number and quality of works but want those rights to be no stronger than necessary to achieve this goal.(14) We do not recognize new intellectual property rights, or strengthen old ones, simply because it appears that a worthy person may benefit; rather, we do so only for a public purpose and where it appears that there will be a public benefit. The current statutory foundation of copyright protection, the Copyright Act of 1976, is itself the product of lengthy debate and represents innumerable compromises that seek to achieve the proper balance between private returns to authors and public benefit, including a broad public domain that permits current authors to build on the cultural heritage from those who have come before them.

Former Representative Kastenmeier, the primary architect of the current statute, recognized this point very clearly and has set forth the conditions that should be met by persons seeking change in the copyright balances: (1) The proponent should show that the new interest will not violate existing principles or basic concepts. (2) The proponent should present an honest analysis of all the costs and benefits. (3) The proponent should show how recognizing the new interest will enrich or enhance the public domain.(15) In sum, "the proponents of change should have the burden of showing that a meritorious public purpose is served by the proposed congressional action."(16)

On these ground rules, the proponents of a life + 70 year period of copyright protection have not met their burden of proving that the change does not violate basic U.S. copyright principles, that the public benefits outweigh the costs, or that the public domain will be enriched. On the contrary, the public domain will not be enriched but rather will be diminished. If this loss to the public domain is not balanced by a greater incentive to create new works, the public benefits will not outweigh the costs. And this means that we would be violating our basic principle establishing the general public good as the ultimate aim of the copyright system.

The extension proponents have made no effort to show that the public benefits from its enactment would outweigh the costs. Indeed, they have demonstrated no public benefit whatsoever and have barely attempted to do so. Yet, the public cost in the form of a diminished public domain is obvious. As demonstrated below, this public cost is not offset by any increased incentive to create new works; nor does international trade in intellectual property rights fill the gap between public costs and public benefits.

Europe, whose copyright law is based more on a natural rights tradition, has recently moved to a life + 70 regime for individual authors and a 70-year period of protection for corporate authors. That should not cause us to change our underlying intellectual property philosophy. Nor does it provide a reason for avoiding the careful cost/benefit analysis called for by that philosophy. The United States joined the Berne Convention for many good reasons, one of which was to become an influential leader in world intellectual property policy. Our underlying policy has served us well, as shown by our dominant position in the worldwide markets, particularly for music, movies and computer software. Rather than following Europe we might better seek to persuade Europeans that our approach to intellectual property rules both rewards creativity and promotes economic efficiency.

IV. TANGIBLE VERSUS INTANGIBLE PROPERTY

Given that the current extension proposals follow so quickly after the expiration of the 19-year extensions for pre-1978 works effected by the 1976 Act, we justifiably fear that these same copyright owners (or their descendants) will be back in 20 years with proposals to extend again -- their ultimate dream, an essentially perpetual copyright term. Therefore, it may be worthwhile to say a few words about the nature of intellectual property in general and why we have always treated it differently from tangible property.

A pure natural rights theory does not distinguish between the two types of property. If I make a coffee table, it's mine until I or my heirs sell it, and then it belongs to the new owner, and so on ad infinitum (at least until the table disintegrates). In other words, property rights in tangible property are perpetual. If I write a song, natural rights theorists ask why the song isn't equally "mine" until transfer under a perpetual property rights system.

Of course, no country follows a pure natural rights theory for intellectual property. Under such a theory, not only would there be no limitations on the duration of patents, many of which are at least as intellectually creative as the bulk of copyright-protected works, but we would not distinguish between idea and expression in determining the scope of copyright protection. Often the most creative aspect of a work is its underlying "idea." Nothing in pure natural rights theory can tell anyone where to draw the line between protected and unprotected elements of works. This line-drawing problem is, in fact, one of the most important policy problems in copyright law, as judges and legislators seek to draw a balance between creation incentives and the social desirability of allowing others to make further developments. We have concluded that the free use of "ideas" results in more works from subsequent authors than we lose by failing to protect them. In any event, for present purposes it is sufficient to note that, for policy reasons, there are someunprotected elements of a copyright-protected work. To the extent these elements are, indeed, the product of a particular person's intellectual creativity, natural rights theory cannot tell us why they go unprotected.

The traditional cost/benefit analysis on which U. S. law is based does not have these problems. We protect works, and elements of works, to the extent necessary to maximize the public benefits. A copyright term no longer than that necessary to provide a creation incentive follows as a matter of course from the fundamental difference between tangible and intangible property: intellectual property is a nondepletable commons. "The tragedy of the commons" for tangible property is that failure to recognize transferable property rights in tangible property leads inevitably to "overgrazing." Recognition of property rights leads to economic efficiency, because a rational owner will optimize the balance between present and future consumption. There can be no overgrazing of intellectual property, however, once a work is created, because intellectual property is infinitely multipliable without destroying the original. No matter how many people copy or use someone else's idea or even "expression," the author still has it and, absent legal intervention recognizing exclusive rights of some kind, can still make full use of it. If works would be created in optimal numbers without the incentive of copyright, economic theory tells us that the period of protection should be zero. We believe, however, that many authors depend on the expectancy of being paid something for their works in order to earn a living, so without any protection we are unlikely to have available as many works as the natural talents of our authors would permit.

Therefore, the different rights we recognize in tangible and intellectual property are a matter of economic efficiency. Equating the two types of property for legal purposes requires justification for switching to an economically inefficient result. At a minimum, that requires the proponents of the extension to admit openly and forthrightly that they are seeking a new basis -- presumably some form of natural rights basis -- for our concepts of property rights.

The following sections consider in some detail the arguments put forward to oppose the extension. First, the very real and substantial costs to the public that would result from adoption of this legislation are considered -- costs that are ignored by the arguments of its proponents. This is followed by a demonstration that the arguments in favor of the extension are either logically fallacious or unsupported by any plausible evidence.

V. COSTS OF A LONGER PROTECTION PERIOD

While the asserted public benefits of an extended copyright protection period range from speculative to nonexistent, two identifiable costs are real and substantial. The first is the economic transfer payment to copyright owners during the period of the extension from consumers or other producers who would otherwise have free use of works. The second is the cost to the public of works that are not produced because of the diminished public domain.

A. Economic Costs and Transfers

The direct economic costs of a 20-year-longer period of protection, although difficult to calculate precisely, include the higher cost to the consuming public for works that would otherwise be in the public domain. That these costs are substantial is shown by the very claims of the proponents of this legislation that they will miss out on the European windfall if we do not extend our term to that of Europe. This windfall does not arise out of whole cloth. Rather, it is ultimately paid by consumers, that is, by the general public. And if Europeans will be paying for the right to use U.S. works in Europe, the U.S. public will be paying for the right to use both domestic and European works here at home, increasing the windfall to copyright owners at the expense of U.S. consumers.(17)

In the legislative history of the Copyright Act of 1976, it was argued that the general public received no substantial benefit from a shorter term of protection, because the cost for works in the public domain was frequently not significantly lower than that for works still under copyright.(18) Even without the fervor of the special interest protagonists of this legislation, however, economic theory dictates that the price to the public for popular works must, through competition, decrease to the marginal cost of producing the work. If the work is under copyright, the marginal cost of production would have to include the royalty owing to the copyright owner, even if there is general licensing to competing producers of the work. Moreover, if there is no general licensing of a copyright-protected work, the price can be expected to be set at the level that maximizes the return of the copyright owner. Consequently, any claim that the public pays the same for public domain works as for protected works is implausible, at least in general.(19) Educational and scientific uses would also seem to be large markets for public domain works. At a time of rising educational costs we should inquire into the effect on our schools of a reduced public domain due to an extended protection period. Something more than anecdotal evidence should be presented before we accept the claim that the consuming public will not incur higher costs from the longer period.

B. Cost of a Diminished Public Domain

An even more important cost to the public is that paid in desirable works that are notcreated because of the continuing copyright in underlying works:

While primary control over the work, including the rights to refuse publication or republication and to create derivative works, properly remains in the author who has created it, giving such control to distant descendants of the author can deprive the public of creative new works based on the protected work. Artistic freedom to create derivative works from the public domain is a significant public benefit, as shown by musical plays like Les Miserables, Jesus Christ Superstar, and West Side Story, the recent spate of high production quality films based on the works of Shakespeare(21) and Jane Austen, satires like Rosencrantz and Guildenstern are Dead, and even literary classics like James Joyce's Ulysses. Although these might not necessarily be considered infringing derivative works even if the underlying work were under copyright, or might be excused by the fair use doctrine if otherwise infringing, their authors must necessarily take a cautious approach if a license is unavailable. When copyright subsists long after an author's death and there is no provision for compulsory licensing, the creation of derivative works that closely track a substantial part of the underlying work can be absolutely prohibited by copyright owners who have no creative relationship with the work at all. 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.

An important cost paid by the public when the copyright term is lengthened, therefore, is contraction of the public domain. The public domain is the source from which authors draw and have always drawn.(22) The more we tie up past works in ownership rights that do not convey a public benefit through greater incentive for the creation of new works, the more we restrict the ability of current creators to build on and expand the cultural contributions of their forebears. The public therefore has a strong interest in maintaining a rich public domain. Nobody knows how many creative works are not produced because of the inability of new authors to negotiate a license with current copyright holders, but there is at least anecdotal evidence that the number is not insubstantial.(23) Unless evidence is provided that a life + 70 regime would provide a significant added incentive for the creation of desirable works, the effect of an extension may well be a net reduction in the creation of new works.

This point may be highlighted by the rapid developments now occurring in digital technologies and multimedia modes of storing, presenting, manipulating, and transmitting works of authorship. Many multimedia works take small pieces of existing works and transform them into radically different combinations of images and sounds for both educational and entertainment purposes. The existing protection period, coupled with termination rights, may well be distorting or inhibiting the creation of valuable multimedia works because of the transaction costs involved in negotiating the number of licenses required. Ultimately, the rapid changes in the intellectual property environment for creating and disseminating works may necessitate a reassessment by the international community of the underlying intellectual property rules. In the meantime, extending the protection period can only exacerbate this problem. The 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.

VI. REBUTTAL OF ARGUMENTS IN FAVOR OF THE EXTENDED COPYRIGHT TERM

A. Incentives for the Creation of Works

It 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. Indeed, there is necessarily a type of diminishing return associated with an ever-longer protection period, because the benefit to the author must be discounted to present value. As Macaulay observed over 150 years ago:

Thus, while an additional year of protection has little or no incentive effect at the time of a work's creation, the costs are immediate and substantial if the extension is to apply to existing works, as provided in the proposed legislation.

The copyright industries are by their nature very risky, and no one in these industries makes financial decisions based on even 50-year, let alone 70-year, projections. Moreover, under the U.S. Copyright Act, most transfers of copyright by an individual author may be terminated 35 years after the grant.(25) The existence of these inalienable termination rights in individual authors makes it even more unlikely that anyone would pay an author more to exploit a work under the extended term than would be paid under the current life + 50 period.(26) The extension, therefore, holds little promise of financial benefit to individual authors.

The absence of any additional incentive for corporate authors from the extension of the copyright period to 95 years is also easily seen. Consider an assured $1,000 per year stream of income. At a discount rate of 10%, the present value of such a stream for 75 years is $10,992, while the present value of a 95-year stream is $10,999, a difference of less than 0.1%. Even at a 5% discount rate, the present values are only $20,485 and $20,806, respectively, a difference of about 1.5%. And these minuscule present value differences are for guaranteed streams of income. When risk is factored into the analysis, the present value of a 75-year stream and that of a 95-year stream must be considered essentially identical. The chance that a given copyright will still have nontrivial economic value 75 years after the work is created is very small -- only a tiny fraction of all works retain economic value for such a long time. No company will take the "extra" 20 years into consideration in making a present decision to invest in the creation of a new work. In fact, an ongoing successful company like Disney is more likely to be spurred to the creation of new works like The Lion King or The Little Mermaid because it realizes that some of its "old reliable" moneymakers, like Mickey Mouse, are about to enter the public domain.

Some have argued that the longer terms would give film companies more valuable libraries, the income from which could be used to finance new films. This superficially appealing argument, however, flies in the face of ordinary free-market economic theory. What film company is going to change its willingness to invest in risky projects just because it has more money in its pockets? Of course all film projects are risky, and many mistakes are made that require offsetting moneymakers to remain in business. But there is no reason to think that Disney, for example, will use whatever "extra" money it earns from extended copyrights on old works to make riskier new films rather than distribute the profits to its shareholders or increase the "perks" enjoyed by its management.

It is therefore extremely unlikely that an additional 20 years of protection tacked onto the end of a copyright protection period that is already very long will act as an incentive to any current author to work harder or longer to create works that would not have been produced in any event. What is certain, however, is that extension would seriously hinder the creative activities of future as well as current authors. Consequently, the only reasonable conclusion is that the increased term would impose a heavy cost on the public -- in the form of higher royalties and an impoverished public domain -- without any countervailing public benefit in the form of increased authorship incentives.

Indeed, if incentives to production were the basis for the proposed extension, there would be no point in applying it to copyrights in existing works. These works, by definition, have already been produced. Yet, if the extension were purely prospective (i.e., applicable only to new works), we could be certain that support for it would wither rapidly. Thus, the real issue is the continued protection of old works -- not those that will enter the public domain 50 (or 70) years from now but rather those due to enter the public domain today. These works were originally published in 1922 (works published before 1978 have a flat 75-year copyright rather than the current life + 50 for individual authors). At that time, the law afforded a maximum of 56 years of copyright protection. This period was expanded to 75 years in 1976, and now the descendants and assignees of these authors want yet another 20 years. The very small portion of these works that have retained economic value have been producing royalties for a full 75 years.

To continue the royalty stream for those few copyright owners, the extension means that all works published after 1921 will remain outside the public domain for an extra 20 years. As a result, current authors who wish to make use of any work from this period, such as historians or biographers, will need to engage in complex negotiations to be able to do so. Faced with the complexities of tracking down and obtaining permission from all those who by now may have a partial interest in the copyright, a hapless historian will be tempted to pick a subject that poses fewer obstacles and annoyances.

B. Copyright in Works Never Published Prior to 1978

Until the effective date of the Copyright Act of 1976, works that had never been published were protected against publication without the author's permission under state or common law. Only published works were governed by the federal copyright statute. However, the 1976 Act preempted state protection for unpublished as well as published works and, as a quid pro quo for the loss of perpetual state protection, recognized a copyright in these previously unpublished works until the year 2003. As an incentive to publication of these works, the current law also extends their copyrights through the year 2027, provided they are published prior to 2003. The proposed legislation would extend this period by 20 years, so that a previously unpublished work will be protected until 2003 and, if published prior thereto, it will remain under copyright through the year 2047.

An example is the recently discovered fragment from a draft of Mark Twain's Huckleberry Finn. The copyright on the published novel was registered in 1884, renewed by Twain's daughter in 1912, and expired in 1940. Even if a life + 70 system had been in place at the time of the work's creation, the copyright would have expired in 1980, along with everything else Mark Twain wrote (because he died in 1910). Because this story of Huckleberry Finn and Jim in the cave has now been published, however, current law 6/10/97recognizes the copyright until 2028. Under the proposed extension, the copyright on this story, already over 110 years old, will continue until the year 2048.(27)

No arguments of any kind have been offered in support of this particular extension of the copyright period of protection.(28) In contrast to the Mark Twain fragment, most of these works have only scholarly value, because if they were readily available and had economic value, they would already have been published. Moreover, many of these works are truly ancient -- letters and diaries from the founding fathers, for example -- and constitute a vital source of original material for historians, biographers, and other scholars.

Obviously, the normal copyright incentive to creative authorship is not involved here. This is simply an incentive to current owners of copyrights in very old works to find the works and publish them so that they will be accessible to everyone. By the year 2003 we will already have afforded the very distant descendants of the authors of these works 25 years of protection, plus the possibility of 50 years of protection if they find and publish the works. There is no justification for extending their term of protection through 2047. Fifty years of copyright protection for such old works, in favor of people who have no creative relationship with the works at all, is more than enough.

C. Support for Two Generations of Descendants

It is also argued that the copyright protection period was initially designed to provide a source of income to two generations of descendants of creative authors. Given the longer life spans of today, the argument goes, a longer term is necessary to achieve this goal.

Far from requiring longer copyright terms to compensate for longer life expectancies, however, these actuarial changes are an argument for keeping the current term of life + 50, or perhaps even reducing it, because the longer life expectancy of the author automatically brings about a longer period of copyright protection. A longer overall life expectancy, moreover, does not in itself imply that the second generation loses anything in comparison with earlier eras. The crucial age for the second generation is not the absolute number of years grandchildren may be expected to live but rather the number of years they survive after the author's (i.e., their grandparent's) death. The copyright period is measured from the death of the author, and if grandchildren are living longer, so too are authors themselves. Certainly no one has provided data to show that grandchildren of today have significantly longer life expectancies than today's grandparents, let alone 20 years longer. Consequently, we should expect the current cohort of authorial grandchildren to remain alive for roughly the same length of time after their grandparents' deaths as at other times in this century.

Second, protection of two generations of descendants is not the inevitable result of a longer protection period. The copyright in a work that has been exploited and become popular will often have been transferred by the author or his or her descendants. Any termination rights with respect to the transfer will have already been exercised before the descendants in question here ever come into the copyright picture.(29) It is very likely that the copyright will have been retransferred after any termination before the current life + 50 year period has expired. Unless these transfers provide for a continuing royalty, there will be no royalties for the author's descendants who are alive thereafter. Moreover, even if the transferee is under obligation to pay a continuing royalty, it cannot be assumed that the royalty stream will accrue to distant relatives of the original author, such as great-grandchildren. The royalty may well be transferred outside the family, by will or otherwise, by earlier descendants. If sustenance to two generations of authorial descendants is really the goal, we should be considering prohibitions on transfers and/or stronger termination rights rather than a longer term of protection.

Third, even the "natural law" argument on behalf of such distant descendants of authors is very weak. These equitable claims to a continued income stream obviously diminish with increasing temporal distance of descendants from the creative author. More importantly, while one can understand the desire of authors to provide a substantial estate to their immediate offspring, one must question the economic efficiency of a system that, as a matter of policy, seeks to grant an easy flow of income to a group of people the majority of whom the actual author may never have known. The descendants themselves would probably be better off, and certainly the general public would be better off, if they were to engage in some productive activity. U.S. copyright policy is not and has never been designed as a welfare system. It is therefore not entirely flippant to say to these distant descendants of creative authors who died 50 years ago what many now say to current welfare recipients: "Get a job!"

Fourth, while the Directive in the European Union mentions protection for two generations of descendants as one of 27 "Whereas" grounds for the extension in Europe,(30) it has never been recognized as a goal of U.S. copyright law. Indeed, today's longer life expectancies were offered as a basis for the recent substantial extension of the copyright term in 1976, from 56 years to life + 50 years, without any mention of a "two generation" goal.(31) Surely life expectancies have not increased since 1976 to justify an additional 20 years of protection on this ground. Going to our current life + 50 system was necessary in order for the United States to join the Berne Convention, and one could at least make a coherent argument that the benefits of joining Berne might outweigh the costs of the diminished public domain resulting from the longer copyright. The "two generation" argument, however, is devoid of any relationship to a public benefit. This claim is therefore fundamentally at odds with basic United States copyright principles and the social bargain that places works in the public domain after the copyright has expired.

Finally, 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 from 75 to 95 years.

In sum, the "two generations of descendants" argument is invalid on its face, advocates economic inefficiency, fails to comport with basic United States copyright principles, and is applicable at best to the term for individual authors. It cannot serve as a basis for the diminished public domain that the extension would effect.

D. "Harmonization" with European Law

The European Union has now directed its members to adopt a life + 70 term of copyright duration. Possibly because of the European natural rights tradition, neither the proposal in Europe nor its adoption was based on a careful analysis of the public costs and benefits of extending the term. Nevertheless, some argue that we must do the same to "protect" domestic copyright owners, against whom the "rule of the shorter term" may be used to provide a shorter period of protection in Europe for U.S. works (life + 50) than is given to European works (life + 70). They also argue that harmonization of the worldwide term of protection is a desirable goal in its own right and that failure to adopt the European term will have an adverse effect on the United States balance of international trade. This section considers the general harmonization goal. The next sections deal with the supposed "prejudice" domestic copyright owners and the balance of trade would suffer in Europe were we not to follow the European example.

Harmonization of worldwide economic regulations can often be useful, especially if differences in legal rules create transaction costs that inhibit otherwise beneficial exchanges. In some cases harmonization can be beneficial even if the uniform rule is in some sense less than ideal. We need not seek uniformity for its own sake, however, especially if it means compromising other important principles. If the United States determines that works should belong to the public domain after life + 50 years, no transaction cost problem is posed to U.S. authors by the longer period in Europe. The ultimate owners of U.S. copyrights, of course, will be able to exploit them for a shorter period, in both Europe and the United States, but that is the result of our policy choice to make the works freely available and not because of the absence of harmonization.

In addition, even if harmonization is desirable, the question remains, who should harmonize with whom? Although doubts were expressed about the constitutionality of a life + 50 year period of protection at the time the Copyright Act of 1976 was adopted,(32) that standard could then accurately be denominated international(33)and, in any event was necessary if we were ever to join Berne. Life + 70 years is not an international standard today, notwithstanding recent actions in the European Union, nor will it become one without support from the United States. It was not even the standard in Europe until the European Council of Ministers, unilaterally and without international negotiation, directed that its member states adopt a uniform term of protection equal to the longest of any of its members. If the cost/benefit analysis required by our copyright tradition does not justify changing the social policy balances we have drawn, we would 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.

Moreover, the proposed legislation is not really aimed at harmonizing U.S. and European law. It would, for example, extend the copyright period for corporate "authors" to 95 years (or 120 years if the work is unpublished). The European Union, by contrast, now offers corporate authors, for countries recognizing corporate "authorship," 70 years of protection, which is less than the 75 years we currently offer such authors. Consider also the works of Sir Arthur Conan Doyle, who died in 1930 and whose works were in the public domain in England and Europe since 1981, although the European extensions apparently have revivified the copyrights until 2001. Works first published before 1978 have a 75-year period of protection rather than the current life + 50 term, so those works of Conan Doyle published in the 1920s remain under U.S. copyright, while those published before 1922 are in the public domain. Because his last work was apparently published in 1927,(34) it is scheduled to go into the public domain in the United States at the end of the year 2002, about the same time as the revived European copyrights on his entire oeuvre. The extension would reintroduce "disharmony" for his later works until the year 2022.

There are many other features of copyright law that are not "harmonized" even within Europe, let alone between Europe and the United States, including moral rights and the important concept of fair use. "Harmonization" is therefore not in itself a valid ground for extending any of our current copyright protection terms. It is simply a high sounding word behind which the special special interests supporting the U.S. extension bills are hiding -- to keep the royalty streams flowing for another 20 years, during which time they will keep working toward their ultimate dream of perpetual copyright.

E. Unequal Treatment of United States Copyright Owners

In addition to lengthening the copyright term for individuals to life + 70 years, the European Union has adopted the "rule of the shorter term," under which works are protected only for the shorter of the European term or the term in the country in which the work originates. Therefore, it is true that retaining the current term of protection would deny some U.S. copyright owners the financial benefit of this European windfall. But the mere fact that the European Union has adopted a bad idea does not mean that the United States should follow suit. France might elect in the future, for example, to give the works of Voltaire or Victor Hugo perpetual copyright protection, but that would be no reason for us to do the same with Mark Twain or Emily Dickinson. The European copyright tradition differs in important ways from that of the United States, primarily by treating copyright as a kind of natural entitlement rather than a source of public benefit. The European approach may on balance tend to discourage, rather than promote, new artistic creativity. We should not, therefore, assume that a policy giving a few U.S. companies and individuals an added financial windfall from works created long ago necessarily is one that promotes our long-term competitiveness in the production of new works.

This extension proposal is perhaps an occasion to consider the special character of U.S. copyright and the features that distinguish our law from its continental counterparts. The constitutional concept of a limited term of copyright protection is based on the notion that we wantworks to enter the public domain and become part of the common cultural heritage. It is worth noting that in this century the cultural productivity and international market share of the United States has been much greater than that of Europe. The genius of the American system is that it balances public and private rights in such a way as to provide a rich collective source on which to base new and valuable productions. This makes us wealthier not only culturally but in a hard-nosed economic sense as well.

We must ask whether we really wish to remake our cultural industries in the image of Europe. This is not, in fact, a conflict between Europe and the United States. The real conflict, in both Europe and the United States, is between the interest of the public in a richer public domain and the desires of copyright owners (who may or may not be relatives of authors) to control economic exploitation of the copyright-protected works that remain in their hands. That Europe has resolved the conflict one way does not mean that we should blindly follow suit.

The arguments for maintaining a rich public domain in the United States are not diminished by the withdrawal of works from the public domain in Europe, or even by the partial withdrawal of only "European" works. If Europe protects "its" copyright owners for a life + 70 year period, its public domain is reduced, and the European general public suffers a net loss. 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 U.S. 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.

Whether European or American, it should be borne in mind that we are no longer talking about authors, of the works that would remain protected for the extra 20 years. Those authors will have been dead for 50 years. We are talking about current authors, however, who create new and valuable works based on the public domain. If the underlying work is unprotected in Europe as well as in the United States, those new U.S. derivative work creators, as authors, will reap the kind of economic benefits in both jurisdictions for which copyright is indisputably designed. There is real cultural value in allowing works to become part of the common heritage, so that other creative authors have the chance to build on those common elements.

In this context, therefore, the notion of international "harmonization" simply obfuscates the real issue: 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. It is notunfair to turn off the royalty stream at 75 (or life + 50) years and to allow then-current creators to have a go at making new and better works.

If there is any "unfairness" to U.S. copyright owners resulting from the differing terms in Europe and the United States, it is not the shorter term here that is the problem but rather Europe's conscious discrimination against works from countries that have shorter terms than Europe.(35) The Berne Convention generally requires "national treatment" of foreign authors, which is to say that foreign works are entitled to the same protection as domestic works. One of the few exceptions to mandatory national treatment is the "rule of the shorter term," which permits (but does not require) Berne members to protect works for the domestic term or for the term of the country of origin, whichever is shorter.(36) The United States has never adopted the rule of the shorter term, and there are many examples of works that remain protected here after falling into the public domain in most of the rest of the world. The European Union, however, mandates the rule of the shorter term for its member states.(37) This is the source of any "unfairness" to United States copyright owners.

Let us consider a simpler example. Suppose Europe decided to guarantee a $20,000 income to each of its citizens, the wealthier members of the public being taxed to support the guaranteed wage. Would "harmonization" be a ground for adopting such a welfare measure in the U.S. without cost/benefit analysis? Very doubtful. Now suppose, however, that Europe extends its new guaranteed annual wage to everyone residing within its borders, on condition in the case of foreigners that the other country offer similar treatment to Europeans. Would "unfairness" to Americans in Europe be a ground for our adopting a similar measure? Is it conceivable that Senator Hatch and Representative Moorhead would support such a welfare policy in the name of "harmonization" or "fairness"?

If there is any "unfairness" here, it is the discrimination against noncitizens by Europe. Our government should perhaps in such cases seek to persuade Europe not to act so discriminatorily, but surely we would adopt the welfare measure for ourselves only after carefully considering all the costs and benefits to those in the U.S. who would be footing the bill, not only for the poor Europeans residing in the U.S. but also for the many U.S. citizens whose incomes would call for support under the new system.

This overt welfare example is, however, no different from what is happening with the copyright extensions. The claim is that U.S. copyright owners will lose out in Europe unless we extend. But what will they lose? That Europe has decided to tax its citizens for the benefit of European copyright owners causes no loss to U.S. copyright owners. U.S. copyright owners always expected their copyrights to expire in 75 years, and when that happens, they are receiving no less than they expected. (In fact, they only "expected" 56 years, because we've already extended the term once, in 1976.) Matching the European period will require not just Europeans but also the U.S. public to pay those same U.S. copyright owners (and to pay for the use of extended European copyrights as well). And this welfare transfer does not even consider the added loss to the U.S. public in the form of new creative works that are not created because the transaction costs of negotiating copyright permissions after so many years is too high.

Again we see that "unfairness" to United States copyright owners in Europe as a basis for extending our copyright terms is a red herring. The only unfairness involved is Europe's discrimination against U.S. copyright owners. Our trade representatives should be protesting against this discrimination as vigorously as they do in other areas of international trade, but the source of the problem is Europe's unilateral decision to adopt the nonmandatory rule of the shorter term. That problem is not solved but is rather exacerbated by our following Europe in extending the terms of copyright protection.

G. The Balance of Payments

Certain U.S. copyright owners will receive royalty payments from European users for a shorter period than will European copyright owners from European users, if the United States does not follow Europe in extending the copyright term. It does not follow, however, that this will have any net negative effect on the U.S. balance of trade, even in the short term and much less over the longer term.

Increasing the term in the United States means not simply that European users will pay longer. It means that U.S. users will also pay longer, and not just to domestic copyright owners but to owners worldwide. Works that are about to enter the public domain were created in 1922, and while Europeans may take more of our current works than we take of theirs, that is not necessarily true of works from the 1920s and 1930s. Our use of European works of classical music and plays as well as art works from this era may outweigh the use Europeans make of our works from the same period. Short term balance-of-trade analysis therefore requires an investigation of whether our use of such works that would remain protected under the proposed extension would cost more than we would receive in return.

Moreover, a shorter term of protection in the United States will encourage rather than discourage the production of new works for worldwide markets. We must recall that the public domain is the source of many of our finest and most popular works. The U.S. market is itself so large that, with both European and domestic works in the public domain here 50 years after the author's death, it alone serves as a strong creation incentive. If the new work is based on a U.S. work that is also unprotected in Europe, that new work should be a part of the continuing United States export engine in the world market. Even if the new work is based on a European work that remains under protection in Europe, popularity of the work in the United States will necessarily result in a license (to use the underlying work) in Europe, again with a net export gain to the United States.

The argument that U.S. copyright owners will unfairly "lose" royalty revenues from Europe is therefore both wrong and incomplete. It is wrong because it is not unfair that a work enter the public domain 50 years after the death of its author. It is incomplete because it does not consider that the royalties in question will be paid not just by Europeans but also by Americans, and not just to domestic copyright owners but also to copyright owners worldwide. Additional revenues to a few owners of old copyrights is not a public benefit justifying adoption of the legislation, and this remains true even though some part of those revenues would be paid by Europeans. The extension represents, rather, a heavy public cost, both in additional royalties paid by the U.S. public and in the loss of creative new works that will not be produced because the exclusive rights of copyright remain in full force on works that cost/benefit analysis would clearly place in the public domain.

VII. CONCLUSION

The proposed copyright term extensions are a travesty that, if adopted into law, will become a tragedy. They are not based on the public interest but rather on private greed. Only the technical complexity of the issue and the diffuse nature of the public harm allows such proposals to move through the Congress essentially without public debate. They can be stopped, but not by a silent majority, or even a silent supermajority. Opponents of the extensions must be heard by Congress, with voices as loud as those seeking to prolong their parade of royalty welfare checks.

FOOTNOTES

* This chapter is based heavily on the author's Written Testimony before the Subcommittee on Courts and Intellectual Property, House of Representatives Committee on the Judiciary, July 13, 1995, to which some 50 copyright and intellectual property law professors joined as cosignatories. That Written Testimony was in turn based on a Comment filed by the author with the Copyright Office in October 1993, at the time of that Office's hearing on the question of extending the copyright term and to which some 34 copyright law professors joined as cosignatories. The Comment was published as Dennis S. Karjala, Comment of US Copyright Law Professors on the Copyright Office Term of Protection Study, [1994] Eur. Intell. Prop. Rev., No. 12, at 531. The written testimony appears in Hearings on H.R. 989 Before the Subcomm. on Courts and Intellectual Property of the House Comm. on the Judiciary, 104th Cong., 1st Sess. (1995). In the 105th Congress the bills are H.R. 604, 105th Cong., 1st Sess. (1997) and S. 505, 105th Cong., 1st Sess. (1997).

1. See, e.g., Sandy Norman, The Electronic Environment: The Librarian's View, [1996] Eur. Intell. Prop. Rev. 71.

2. Professor Litman has written broadly on the political dynamics underlying copyright legislation. SeeJessica Litman, Copyright and Information Policy, 55 L. & Contemp. Probs. 185, 196 (1992); Jessica Litman, Copyright Legislation and Technological Change, 68 Or. L. Rev. 275 (1989); Jessica Litman,Copyright, Compromise, and Legislative History, 72 Cornell L. Rev. 857 (1987).

3. Robert W. Kastenmeier & Michael J. Remington, The Semiconductor Chip Protection Act of 1984: A Swamp or Firm Ground?, 70 Minn. L. Rev. 417, 467 (1985) [hereinafter Kastenmeier].

4. Intellectual Property and the National Information Infrastructure: Report of the Working Group on Intellectual Property Rights (1995). Legislation has been introduced in both houses of Congress to implement the recommendations of this Report. H.R. 2441, S. 1284, 104th Cong., 1st Sess. (1995).

5. 17 U.S.C. §§ 101-1101 (1994).

6. Id. § 302(a) & (c).

7. Id. § 304(a)(1991). Copyrights on works published prior to 1964 expired 28 years after publication unless renewed. Renewal became automatic for post-1963 works pursuant to Pub. L. 102-307 (1991), which amended ' 304(a) into its current form.

8. Id. § 303.

9. Consider, for example, the statement of Senator Hatch in introducing S. 483: "The current term of copyright is ... inadequate to perform its historic functions of spurring creativity and protecting authors." 141 Cong. Rec. S3390 (Mar. 2, 1995). "By providing this across-the-board extension of copyright for an additional 20 years, I believe that authors will reap the full benefits to which they are entitled from the exploitation of their creative works." Id. at S3391.

10. Id. § 304(a)(1991). The constitutionality of this unbargained for extension of existing copyrights has been questioned. Melville B. Nimmer & David D. Nimmer, 1 Nimmer on Copyright § 1.05[A][1], at 1-44.35-1-44.36 (1995), Joseph A. Lavigne, For Limited Times? Making Rich Kids Richer Via the Copyright Term Extension Act of 1995, 73 U. Detroit Mercy L. Rev. 311 (1996) [hereinafter Lavigne].

11. 104 Cong. Rec. S3390, S3392, 104th Cong., 1st Sess. (Statement of Senator Hatch, Mar. 2, 1995). According to Senator Hatch, Mr. Donaldson's daughter, now in her early fifties, continues to publish and exploit her father's works. Mr. Donaldson died in 1947, and this is one of those rare cases where a creative artist has children so late in life that the copyrights do not extend over the full life of the artist's children. Such extreme cases should not, however, constitute the basis for general policy, even if our goal were to insure royalty flow for the entire lives of all the artist's children. The music in question, assuming it was first published in 1927, will produce royalties until 2003, and of course any later works of Mr. Donaldson will go on longer. Royalties on very popular works can be the basis of a substantial estate that itself can be the source of income even after the expiration of the copyright in the underlying works. Even more important, however, is that 75 years is long enough. The goal of copyright is not to supply income to descendants for the full economic life of the work.

12. Id. at S3392.

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

14. Paul Goldstein, 1 Copyright § 1.1 ( 2d ed. 1996).

15. Robert W. Kastenmeier & Michael J. Remington, supra note 3, at 440-41. A fourth component of Mr. Kastenmeier's test is a clear definition of the new interest. That component is clearly satisfied for the proposal to extend the term to life + 70 years.

16. Id. at 440.

17. It stands to reason that we are greater users of U.S. works than citizens of other countries. Whatever the multiple is (for example, if foreign uses constitute 20% of the total use of U.S. works, the multiple is 4:1), the U.S. public will have to pay that multiple of dollars to U.S. copyright owners for every dollar paid by Europeans.

18. H.R. Rep. No. 1476, 94th Cong., 2d Sess. 133 (1976).

19. Of course, the market for many public domain works may often be inelastic but small, with the result that competition is thin, or even nonexistent. This can allow, say, a book publisher to charge a price for a republished public domain work that is consistent with prices for similar types of books that are under copyright. Given the thin market, such a price may be necessary for this publisher even to cover production costs. This does not mean that the public domain status is irrelevant, because if a royalty were required in addition, such a book might not be republished at all, or would have to be sold at an even higher price.

It may also be that the works in question are not public domain works at all but rather derivative works based on public domain works. A new derivative work is, of course, itself copyright protected and can be expected to sell at the same price that the public pays for other protected works in that category. In this case, continued copyright protection for the underlying work may require sharing of the profits generated by the new work. One of the parties sharing the copyright monopoly is, by hypothesis, the new author, whose creativity has resulted in the new derivative work. The other will be the owner of the copyright in the underlying work, who may or may not be distantly related to the original author. In this case, true concern for authors would seem to favor notlengthening the protection period, which would allow the current creative author to reap the full benefit.

Finally, as discussed below, when the underlying work remains under copyright, the most important cost to the public comes from those new derivative works that are not created because of the new author's inability to negotiate permission from whoever owns the copyright 50 years after the original author's death.

20. Robert W. Kastenmeier & Michael J. Remington, supra note 3, at 459; see also Peter Jaszi, When Works Collide: Derivative Motion Pictures, Underlying Rights, and the Public Interest, 28 U.C.L.A. L. Rev. 715, 804-05 (1981) [hereinafter Jaszi].

21. Of course, Shakespeare's own reliance on earlier works for essentially all of his theatrical masterpieces is well known.

22. See generally Jessica Litman, The Public Domain, 39 Emory L.J. 965 (1990); David Lange, Recognizing the Public Domain, 44 L. & Contemp. Probs. 147 (1981). For an argument that copyright is also intended to accommodate users' rights, see L. Ray Patterson & Stanley W. Lindberg, The Nature of Copyright (1991), which includes a Foreword by former Congressman Kastenmeier.

23. Nearly 50 years ago Professor Chafee pointed to examples in which the veto power of copyright in an author's descendants deprived the public of valuable works. Zechariah Chafee, Reflections on the Law of Copyright: II, 45 Colum. L. Rev. 719 (1945). There have been press reports of refusals by the estate of Lorenz Hart of permission to use Hart's lyrics to any biographer who mentions Hart's homosexuality and of censorship by the husband of Sylvia Plath of the work of serious biographers who wish to quote her poetry. There have also been reports of the Picasso estate's assertion of rights (apparently moral rights) to prevent the use of any of Picasso's pictures (even "look-alikes") in a biographical film of the artist with the content of which the estate disagrees. Anthony Haden-Guest, Picasso Pic Has Heirs Seeing Red, The New Yorker, Aug. 21 & 28, 1995, at 53-54. Professor Jaszi has provided examples of derivative-work films whose continued distribution has been limited or even suspended because of conflicts with the owner of the copyright in the underlying work. Peter Jaszi, supra note 20, at 739-40.

24. 8 Macaulay, Works (Trevelyan ed. 1879) 199, quoted in Zechariah Chafee, Reflections on the Law of Copyright: II, 45 Colum. L. Rev. 719 (1945), requoted in Robert Gorman & Jane Ginsburg, Copyright For The Nineties 307 (4th ed. 1993).

25. 17 U.S.C. § 203 (1994).

26. No human author can possibly receive anything more in exchange for terminable rights in his work under a life + 70 regime than under the current life + 50 regime. The reason, quite simply, is that no purchaser of copyright rights will pay anything for the "extra" 20 years of the term, because those supposed extra years can be freely terminated, along with whatever remains of the current period, before they ever begin. An exception is the right to continued exploitation of derivative works, which cannot be terminated. Even in this case, however, the maximum "extra" value to the transferring author is the present value difference between a 50-year and a 70-year protection period. Even for guaranteed income streams, and assuming that the author is on her deathbed at the time of the transfer (otherwise the discount periods must include the life expectancy of the author), this difference is around 5.4% (at a very conservative assumed 5% discount rate). That is, a guaranteed income stream of $1,000 per year for 50 years has a present value of $19,256 while the same stream for 70 years has a present value of $20,343. The purchaser of the derivative work right, however, will not be willing to pay anything close to this difference in present value, because of the overwhelmingly high risk that the derivative work created pursuant to the purchased right will have an economic life, like most works, far less than even the life + 50 years now afforded.

27. There have been recent newspaper reports that the manuscript of Louisa May Alcott's first novel, heretofore unpublished, has just been "discovered" in the Harvard Library. There are, of course, plans to publish it, so although it was written in 1849, it would under the extension remain under copyright until 2047 -- nearly 200 years later! Of course, it will be in the public domain nearly everywhere else in the world. So much for "harmonization"!

28. Even the Copyright Office, speaking through the Register of Copyrights Marybeth Peters at both the House and the Senate hearings, opposes this aspect of the legislation. Hearings on H.R. 989 Before the Subcomm. on Courts and Intellectual Property of the House Comm. on the Judiciary and Hearings on S. 483 Before the Senate Comm. on the Judiciary, 104th Cong., 1st Sess. (1995) (Statements of Marybeth Peters, Register of Copyrights); see also 50 Pat., Trademark & Copyright J. 589 (1995) (summarizing testimony at the Senate hearings). The bills before the 104th Congress would have extended protection of pre-1978 unpublished works to the year 2013. If published before 2013, protection would continue to 2048. The bills before the 105th Congress (1997-1998) delete the extension of protection to 2013 for pre-1978 works. Such works published before 2003, however, will under the current bills still be protected until 2048.

29. Termination rights accrue 35 years after a grant by an author and expire five years later. Because the extra 20 years that would be added by the extension to the protection period begin 50 years after the author's death, all termination rights with respect to any authorial transfer will either have been exercised or have expired.

30. Council Directive 93/98/EEC (Oct. 29, 1993).

31. H.R. Rep. No. 1476, 94th Cong., 2d Sess. 133-34 (1976).

32. E.g., 14 Omnibus Copyright Revision Legislative History, House Hearings 1975 (Part 1) 133-34, 141-42 (testimony of Irwin Goldbloom, Deputy Assistant Attorney General, Civil Division, Department of Justice). Some believe that special constitutional problems arise from an extension of the period of protection for works already under copyright, because it recaptures from the public domain works that should be freely available under the "bargain" made at the time the work was created and offers no countervailing public benefit. They argue that the constitutional term "limited times" must be interpreted in terms of the constitutional goal to promote the progress of science and the useful arts. See also Lavigne, supra note 10, at 354-58 (arguing that the extension would run afoul of the constitutional requirement that copyright legislation promote the progress of science as well as that protection last only "for limited times").

33. E.g., 14 Omnibus Copyright Revision Legislative History, id. at 108 (testimony of Barbara Ringer, Register of Copyrights); id. at 120 (testimony of Joel W. Biller, Secretary for Commercial Affairs and Business Activities, Department of State).

34. The Adventure of the Veiled Lodger was published on January 22, 1927, and The Adventure of Shoscombe Old Place was published on March 5, 1927. Robert Burt de Waal, The World Biography of Sherlock Holmes and Dr. Watson 13, 23 (1974). This same source lists other Conan Doyle stories as having been published in 1921, 1922, 1923, and three each in 1924 and 1926.

35. The remainder of this subsection constitutes new material not present in the published chapter of the book.

36. Berne Convention for the Protection of Literary and Artistic Works, Art. 7(8)(Paris Text 1971).

37. Council Directive 93/98/EEC (Oct. 29, 1993), Art. 7(1).