Opposing Copyright Extension

Legislative Materials (105th Congress)


Statement of Copyright and Intellectual Property Law Professors in Opposition to H.R. 604, H.R. 2589, and S.505
Submitted to the Committees on the Judiciary
United States Senate
United States House of Representatives

January 28, 1998


 
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STATEMENT OF COPYRIGHT AND INTELLECTUAL PROPERTY LAW PROFESSORS
IN OPPOSITION TO H.R. 604, H.R. 2589, AND S. 505
"THE COPYRIGHT TERM EXTENSION ACT"  
  Submitted to the Committees on the Judiciary
United States Senate
United States House of Representative
by
Dennis S. Karjala
Professor of Law
Arizona State University
January 28, 1998  
 
  We hereby request that this Statement be included in the record of proceedings on bills to extend the term of copyright protection  
 
  TABLE OF CONTENTS  

 INTRODUCTION ..............................................................................................1

 SUMMARY ........................................................................................................3

  UNITED STATES COPYRIGHT POLICY .......................................................6

 TANGIBLE VERSUS INTANGIBLE PROPERTY ............................................8

 COSTS OF A LONGER PROTECTION PERIOD ...........................................10

 REBUTTAL OF ARGUMENTS IN FAVOR OF
THE EXTENDED COPYRIGHT TERM .............................................................14

 CONCLUSION ................................................................................................. 28

 FOOTNOTES

 SIGNATORIES

 
 
[Note: Bracketed numerals indicate the page number of the original text beginning at that point.]

[1] INTRODUCTION

    The undersigned are law professors who spend a heavy proportion of their professional lives thinking about, teaching, and conducting research in intellectual property law. We believe that extending the term of copyright protection would impose substantial costs on the United States general public without supplying any public benefit. The extension bills represent a fundamental departure from the United States philosophy that intellectual property legislation serve a public purpose. This legislation moves strongly and misguidedly in the direction of so-called "natural rights" theory, in contradiction to the Constitution and two centuries of Supreme Court interpretation.

    The copyright term was extended by a full 19 years in 1976. According to a recent Wall Street Journal article,(1) heirs and assignees of creative composers from the 1920's have already enjoyed millions of dollars of extra royalty income as a result of that extension. These noncreative recipients do not need, nor should the public be required to pay for, another 20 years of such royalties.

    The same Wall Street Journal article indicates the desire of the distant heirs of creative American geniuses to police what these heirs regard as improper uses of works. But the genius of the American system lies in its avoidance of the moral rights thicket by relying on economic incentives as the basis for copyright protection. This allows authors to control nearly all uses of their works during the copyright term but allows free markets to determine the "appropriate" uses of works that have entered the public domain.

    The creation of new works is dependent on a rich and vibrant public domain. Santa Claus himself, as we now know him, is a good example. The great 19th-century American cartoonist Thomas Nast, starting from a "skinny, austere, judgmental" Father Christmas figure in the public [2] domain, created the jovial, roly-poly figure that we all know today.(2) 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. Had Thomas Nast been working under the kind of copyright law envisioned by the term extensionists, we may never have seen the development that we now take for granted--and Nast's descendants might be seeking royalties from everyone seeking to put out Christmas decorations. Even the U.S. Government would have had to pay royalties to use Uncle Sam for its patriotic solicitations, like bond selling and military enlistments, during World Wars I and II, the Korean War, and most of the Vietnam War!(3) Just as Uncle Sam, Santa Claus and the Easter Bunny are part of the public domain that anyone can use in any season, so eventually should Mickey Mouse and Bugs Bunny also join our freely available cultural heritage (not to mention Rudolph and his red nose). That is a crucial part of the copyright "bargain" that the public made at the time these works were created.

    The bills also move in the direction of economic inefficiency. Intellectual property does not evoke the "tragedy of the commons" that is the basis for perpetual rights in tangible property. Except in special cases, the economically efficient term of intellectual property protection for works already in existence is zero, because by definition intellectual property is not depleted by use. Consequently, unless stronger or longer intellectual property rights increase the incentive to create new works, they simply raise the costs to the public and deprive the public of works that would have been created in the absence of the stronger rights. By increasing the term of copyright protection not just prospectively but also for existing works, the bills transfer wealth from the general public to heirs and assignees of authors (individual or corporate) at worse than a zero-sum-game--the costs to the public are actually significantly more than the gain to the special interests who would benefit.

    Some say that Congress would be creating new property or new value in extending the copyright term, but this is nonsense. Congress cannot create value by a stroke of the legislative pen. The value in works that are part of the American heritage is always there. Congress can only determine who has the right to exploit such value. By reassigning property rights from the public to current copyright owners at less than a zero-sum-game, Congress is actually depleting total value by inhibiting the creation of new works, with a transfer-payment surcharge on the public in the form of continued royalties.

[3]    Thus, term extension 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. It would severely inhibit the efforts of educators and archivists to preserve and transmit large portions of our cultural heritage, even those portions lacking present economic value, because of the transaction costs associated with finding copyright owners and obtaining the necessary copyright clearances prior to investing in the creation of new works. Moreover, these bills fail to "harmonize" our term of protection with that applicable in Europe. Yet, in following a European model of regulation and rigidity, their adoption would reduce overall United States competitiveness in international markets for information, where the United States is currently at its most powerful. At a minimum Congress should make a careful study of the costs and benefits of term extension before committing our country irrevocably to carving a full 20-year slice out of our public domain.

    We therefore conclude that it would be a grave mistake to extend any of the copyright terms of protection.

 SUMMARY

    Various reasons have been offered in support of the extension proposal: (1) That a continued strongly favorable balance of trade in intellectual property may be jeopardized unless we "harmonize" with the newly lengthened European term. (2) That extension is necessary as an incentive for the creation of works. (3) That the current period for individual authors--50 years after the death of the author--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. (4) That a longer copyright term is necessary to prevent royalty inequality between United States and European copyright owners.(4)

[4]    None of these arguments takes into consideration the costs to the United States public of an extended copyright term, nor has Congress ever ordered a careful investigation of the costs. While they are difficult to calculate precisely, the costs of term extension are both large and certain, while any benefits of extension are speculative. Moreover, the arguments for extension are either demonstrably false or at best without foundation in empirical data. "Harmonization" with Europe is not achieved under the proposed legislation, and in fact considerable disharmony is introduced. Extension would, for example, increase the copyright period for corporate "authors" to 95 years (or 120 years if the work is unpublished), whereas the European Union now offers corporate authors 70 years of protection, which is less than the 75 years we currently provide (see page 16). In addition, our multibillion dollar trade balances in intellectual property are dependent on current works like Jurassic Park and The Lost World, not on the relatively few works from the 1920s and 1930s whose copyright owners would be the beneficiaries of term extension. The word "harmonization" is a smokescreen to achieve term extension without any showing that it is in the public interest (see pages 14-17).

    The phrase "natural rights of authors" is similarly a smokescreen to divert attention from the economic interests of current copyright owners by directing it on distant creative authors who have long passed from the scene (see pages 9-10). Perpetual ("natural") rights in tangible property make perfect sense, but perpetual or very long rights in intellectual property is economically inefficient (see pages 8-9). An incentive for the creation of current works is a potentially valid ground for granting or even extending intellectual property rights. If creation incentives were the issue here, however, 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 (see pages 21-24). Neither can "two generations of descendants" be a basis for extending the terms. That standard has never been a part of our copyright jurisprudence. Moreover, 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. This cannot be the basis for the current bills (see pages 24-26 ).

    Nor does supposed royalty inequality in Europe provide a basis for extending the term in the United States. The amounts received from foreigners for works that will benefit from extension are trivially small in comparison to our overall trade in intellectual property (see pages 10, including footnote 12, and 17). It is fundamental to our constitutional tradition that U.S. authors eventually give up their works to the public domain from which they themselves drew in creating their works. After they and their descendants have received royalties for a full 75 years, they have everything they were promised by the law at the time their works were created. (They are, in fact, receiving much more, because we have already extended the term for these old works by 19 years, in 1976.) Admittedly, Europe is discriminating against U.S. copyright owners in adopting a mandatory "rule of the shorter term," but the appropriate remedy for such discrimination is trade negotiations with Europe (see pages 19-21). We cannot allow discrimination in Europe to force us to change our entire intellectual property philosophy--based [5]on the public interest--just to put a few dollars into the pockets of descendants and assignees of creative authors from the distant past.(5)

    The discussion below shows the utter failure of these arguments in detail. It also shows that the 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 that the general public itself would receive 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 of millions of dollars from the United States public to current owners of these copyrights. These copyright owners are in most cases large companies and in any case may not be descendants of the original creative authors whose works provide the revenue streams that started flowing many years ago. To our knowledge, no one has made a study of just how great this wealth transfer would be, although it is clearly large enough to generate fervent support for the proposed legislation by performing rights societies, film studios, and other copyright owners in economically valuable works whose copyrights are otherwise due to expire in the next few years.

    The works about to enter the public domain, absent this legislation, were created in 1923. 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, as were the terms of all copyrights acquired after 1920. Now these same copyright owners have returned seeking yet another extension to continue the wealth transfer for another 20 years, without supplying any evidence, or even any arguments, that the public will benefit.

    This wealth transfer from the United States general public 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 as well as United States works. Therefore, in order to maintain a flow of revenue to the owners of United States 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 (see page 17).

[6]    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 can 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 finding the copyright owners and 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 popular new works that are not created because underlying works that would have served as a foundation remain under the control of a copyright owner. By definition, this loss can never be known, but that makes it no less real or substantial.

    We urge that the proposed legislation be rejected. Legislation is at best premature where there has been no empirical demonstration of a public benefit, substantial evidence of huge public costs, and no thorough exploration of alternative approaches.

 UNITED STATES COPYRIGHT POLICY

    It is vital to bear in mind that the United States has never adopted "natural rights" as a basis for protecting intellectual property. Rather, the United States follows an incentive-based system, following the constitutional mandate that intellectual property protection "promote the progress of science and useful arts."(6) Both Congress and the courts have uniformly treated United States 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:

    The limited scope of the copyright holder's statutory monopoly, like the limited copyright duration required by the Constitution, reflects a balance of competing claims upon the public interest: Creative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts. The immediate effect of our copyright law is to secure a fair return for an "author's" creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good.(7)

[7] United States 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. Nothing in the proposals to extend the term of protection for existing works can be said to promote this goal, and the extended term adds no perceptible incentive even to the creation of new works.(8)

    At a minimum Congress should make a careful study of whether term extension would promote innovation in the public interest before giving away to special interests such a huge segment of our public domain. 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.(9) 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.

    We are aware of no effort by the proponents of this extension legislation 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.(10) As we demonstrate below, this public cost is not offset [8] 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.(11)

    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 for current works, 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. We certainly should not bite the hand that feeds us by further tying the hands of current creative authors.

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. It is important to recognize that adopting the extension legislation would effect a radical change in our conceptual basis for copyright protection--a change that moves in the direction of economic inefficiency.

[9]    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, and people often speak of this perpetual right as following "naturally" from the fact of creation itself. If I write a song, natural rights theorists ask why the song isn't equally "mine" until transfer under a perpetual property rights system. The reason actually has nothing to do with "natural rights" at all. The reason is, rather, that while economic efficiency requires perpetual rights in tangible property, this is not the case for intellectual property. In fact, once sufficient rights in the creation have been afforded to encourage optimal production of works, further protection is economically inefficient, just like every other monopoly.

    The fundamental difference between tangible and intellectual property is that intellectual property is a nondepletable commons, while tangible property necessarily depletes with use . "The tragedy of the commons" is that failure to recognize perpetual and transferable property rights in tangible property leads inevitably to "overgrazing," as soon as the item of property enters the public domain from which everyone may draw freely. Recognition of perpetual 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, because intellectual property is not destroyed or even diminished by consumption. Once a work is created, its intellectual content is infinitely multipliable. 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, we follow an incentive-based system of intellectual property rights.

    Thus, the differences between the rights we have always recognized in tangible and intellectual property, respectively, 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 extension to admit openly and forthrightly that they are seeking a new philosophical basis for our concepts of intellectual property rights.

    That "natural rights" is really a smokescreen for extending special interests at the expense of the public can be easily seen: Notwithstanding all the high-sounding rhetoric about "giving creators full control over their works," 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 [10] 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, yet every country makes this distinction. Consequently, a system based on "natural rights" not only does not exist anywhere in the world but is also fundamentally indeterminate.

    The traditional cost/benefit analysis of the U.S. incentive-based system 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 necessary to provide a creation incentive follows as a matter of course from the distinction between tangible and intellectual property outlined above.

    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.

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.(12)

[11]    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.(13) 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. Consequently, any claim that the public pays the same for public domain works as for protected works is implausible, at least in general.(14) It is simply unfair and misleading to compare price of a best-selling John Grisham novel to that of low-volume public domain work like War and Peace. Educational and scientific uses also constitute 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.

[12]B. Cost of a Diminished Public Domain

    Even where a given work wholly lacks economic value, the transaction costs involved in tracking down the copyright owner and obtaining the necessary permissions to use it in a new work constitute a deadweight cost that must be recovered by the creator of the new work--if, in fact, the such author elects to accept such risks instead of giving up the project entirely. As unjustified as continued and substantial royalty payments on still-popular works are, the higher transaction costs leading to the noncreation of works may be an even greater problem of term extension for the general public. The public domain is crucial in holding the deadweight transaction costs of copyright within reasonable bounds:

    More than a nodding acquaintance with the concept of public domain is essential to comprehension of intellectual property law and the role of the United States Congress in creating that law. The addition of a creation to the public domain is an integral part of the social bargain inherent in intellectual property law.(15)

While primary control over the work, including the rights to refuse publication or republication and to create derivative works, are important aspects of the creation incentive, giving such control to distant descendants or assignees 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 music from popular films like Fantasia and The Sting, the recent spate of high production quality films based on the works of Shakespeare(16) and Jane Austen, satires like Rosencrantz and Guildenstern are Dead, and even literary classics like James Joyce's Ulysses.(17) 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. Who can say whether the very popular recent series of new Sherlock Holmes stories by American author Laurie R. King(18) would have been written at all were the Sherlock Holmes character not in the public domain? When copyright subsists long after an author's death and [13] 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.(19)

    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.(20) Even Santa Claus and Uncle Sam, as we now know them, were the specific inventions not so very long ago of an American artist based on public-domain names and figures.(21) Does anyone seriously argue that we would be better off if we were all still paying royalties on Santa, instead of having him free for all to use and enjoy as they choose? And Uncle Sam? 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.(22) Unless evidence is provided that a life + 70 regime would provide a significant [14] added incentive for the creation of desirable works, the effect of an extension will almost surely 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 blindly following what takes place in Europe.

REBUTTAL OF ARGUMENTS IN FAVOR OF THE EXTENDED COPYRIGHT TERM

    The arguments that apparently have been the most influential in support of the extension are that it would "harmonize" our terms with the recently extended terms in Europe, that it would favorably affect our balance of trade, and that it would avoid "unfair" treatment of U.S. copyright owners in Europe resulting from Europe's adoption of the "rule of the shorter term". We therefore consider those arguments first. Then we turn to the question of whether extension provides any additional creation incentives, the argument that copyright protection is intended to provide support for "two generations of descendants," and the special problem of extension of the copyright for very old works that are first published after 1977.

A. "Harmonization" with European Law and the Balance of Trade

    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 [15] period of protection in Europe for U.S. works (life + 50, or 75 years for pre-1978 works) 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 in intellectual property.

    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,(23) that standard could then accurately be denominated international.(24) In any event it was necessary to adopt it 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 [16] 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 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 in the United States rather than the life + 50 term applicable to current works, so those works of Conan Doyle published in the 1920s remain under U.S. copyright, while those published before 1923 are in the public domain. Because his last work was apparently published in 1927,(25) 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.

    Similarly, the works of the great American composer George Gershwin were published between 1923 and 1937, which means that their U.S. copyrights will expire between 1999 and 2013 under current law. George Gershwin died in 1937, so all of his works will go into the public domain in Europe no later than 2008, which is near the middle of the U.S. range and about as close to "harmony" as is possible between the "life +" system in Europe and the old U.S. system of a fixed term of years from the year of publication. If we extend the term for old copyrights by 20 years, the U.S. copyrights will continue until the years 2019 to 2033, although all Gershwin copyrights will have expired in Europe, notwithstanding extension there, in 2008. Thus, pleas of the Gershwin family trust for "harmony" with Europe can only be a smokescreen, because optimal harmony is achieved in this case by leaving our copyright term just as it is.

    There are, moreover, 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 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.

[17]    Nor is there any evidence that failure to adopt copyright term extension will have even a negative, let alone a significant, effect on the balance of trade in intellectual property. Our hugely positive trade balance in intellectual property arises almost wholly from current works, such as movie blockbusters like Titanic and computer software like Windows 95. It is true, as a general rule under current law, that certain owners of old U.S. copyrights will receive royalty payments from European users for a shorter period than will European copyright owners from European users. 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 1923, 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 will 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.

B. 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. Thus, a work that falls into the public domain in the U.S. prior to the expiration of the European term will lose protection not only in the U.S. but in Europe as well. It is therefore correct to say that retaining the current term of protection would deny some U.S. copyright owners the financial benefit of some of this European windfall.

    We should first note, however, that in two of the most important European countries U.S. copyright owners will enjoy copyright protection even after the term expires here at home. The [18] rule of the shorter term will not apply in the United Kingdom or in Germany to the old U.S. works that are the real impetus for term extension. The U.K., like the U.S., did not follow the rule of the shorter term until mandated recently for prospective works, and the U.K.'s earlier term of life + 50 years continues to apply to U.S. works published prior to 1996.(26) And Germany will protect these old U.S. works for its full life + 70 year term, notwithstanding their prior public domain status in the U.S.(27) These two countries, especially the U.K., are probably the largest consumers of U.S. works in Europe, and these alleviative provisions significantly reduce the need to "rush" to extend our terms just to get benefits in Europe.

    More important than continued protection in Germany and the U.K., however, is maintaining the course that has brought the United States to world leadership in the entertainment and computer industries. 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, even under a reciprocity condition similar to Europe's mandatory rule of the shorter term. 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, in comparison with the U.S., discourages rather than promotes new artistic creativity. This is a large part of the reason that our copyright industries have been so much more successful than Europe's at capturing the world market. 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 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 want works to enter the public domain and become part of the common cultural heritage. In this century the [19] 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 and economic 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 not unfair 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 [20] Europe's conscious discrimination against works from countries that have shorter terms than Europe. The Berne Convention generally requires "national treatment" of foreign authors, which is to say that foreign works are entitled in each member country 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.(28) 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.(29) 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 foreign 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 any member of Congress would support such a welfare policy in the name of "harmonization" or "fairness"?

    Here again, if there is any "unfairness" 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 indigent 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 [21] 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 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 here.

    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.

C. Incentives for the Creation of Works

    As argued in detail above, our copyright system is based, as a matter of economic efficiency and social policy, on incentives for the creation of works.(30) It is obvious that extending the period for works already in existence cannot supply any incentive for their creation. Consequently, with respect to such works, the burden of demonstrating that a legitimate public purpose is served by extension is on those seeking the private benefit of extension. Incentives for creation are simply not a part of the analysis for works already in existence. Yet, for the works that are about to fall into the public domain--those created in the 1920s or 1930s--no one has shown that they are a substantial factor or even a positive factor in international trade. Supporters of extension have met no part of their burden of showing a public benefit from extending the term for existing works. Therefore, term extension at most must be given only prospective application--that is, it should cover only newly created works.

    We also question whether lengthening an already very long term appreciably increases the creation incentives even for current authors. A longer term does not automatically drive creative [22] 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:

    [T]he evil effects of the monopoly are proportioned to the length of its duration. But the good effects for the sake of which we bear with the evil effects are by no means proportioned to the length of its duration ... [I]t is by no means the fact that a posthumous monopoly of sixty years gives to an author thrice as much pleasure and thrice as strong a motive as a posthumous monopoly of twenty years. On the contrary, the difference is so small as to be hardly perceptible .... [A]n advantage that is to be enjoyed more than half a century after we are dead, by somebody, we know not by whom, perhaps by somebody unborn, by somebody utterly unconnected with us, is really no motive at all to action.(31)

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.(32) 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.(33) The extension, therefore, [23]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 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? Risk capital is readily available in this country where cost/benefit analysis shows that the probable gain outweighs the probable loss. That analysis does not depend on the economic value of other assets held by the investor. 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. Any company that takes risks not justified by the probable benefit will soon hear from its stockholders.

    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 [24] and an impoverished public domain--without any countervailing public benefit in the form of increased authorship incentives.

    Indeed, as mentioned briefly above, if incentives to production were the basis for the proposed extension, there would be utterly no point in extending the terms for existing works. 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 1923 (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 works from 1923 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 1923 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.

D. 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. This argument is wholly spurious and should play no role whatsoever when Congress decides the crucial question of copyright term extension.

    Far from requiring longer copyright terms to compensate for longer life expectancies, 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 than in 1976 (when longer life expectancies were used to justify the 19-year [25] increase in the term made then). 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.(34) 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 nothing 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,(35) 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 [26] years to life + 50 years, without any mention of a "two generation" goal.(36) 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. If Congress wishes to take this argument seriously, it must equally seriously consider dropping the extended term for works for hire from the bills.

E. 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,(37) 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 [27] 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 recognizes the copyright until 2028. Under the proposed extension, the copyright on this story, already over 110 years old, will continue until the year 2048, although it will be in the public domain everywhere else in the world.(38)

    No arguments of any kind have been offered in support of this particular extension of the copyright period of protection. 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. The extra 25 years of protection we afford to these very old works that are published prior to 2003 simply constitute an incentive to current owners of the copyrights to find the works and publish them so that they will be accessible to everyone. 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, especially when "disharmonization" with the rest of the world is considered. These works are in the public domain everywhere except in the United States. There is no reason to extend this disharmony even further.

CONCLUSION

    The proposed legislation extending the copyright term of protection by 20 years is a bad idea for all but a few copyright owners. The longer term is not based on the public interest and is in fact antithetical to the public interest. The proposed legislation must be rejected.

FOOTNOTES

1. John J. Fialka, Songwriters' Heirs Mourn Copyright Loss, Wall Street Journal, October 30, 1997. Consider the works of the great American genius George Gershwin. According to this article, the Gershwin family trust and the descendants of other famous composers are among the heaviest lobbyists for copyright term extension. The article reports that a nationwide license for a single Gershwin song went for $45,000 to $75,000 15 years ago and now goes for $200,000 to $250,000. Taking the average of the lower end figures, that amounts to $122,500 per year for 19 years--$2,327,500--of extra royalties that have already flowed into the coffers of the Gershwin family trust in those 19 years for a single song. The 20-year copyright term extension would therefore add tens, perhaps hundreds, of millions of dollars to a trust that has already been more than generously rewarded for George Gershwin's wonderful contributions to American culture. Ultimately those dollars are paid by US citizens in the form of higher prices, and in the loss to US citizens of new works that could creatively rely on Gershwin's music but whose potential authors cannot afford the license fees. The Gershwin family trust also has no viable argument for extending the term based on "harmony" with Europe. See infra page 16.

2. Adam Gopnik, The Man Who Invented Santa Claus, The New Yorker, Dec. 15, 1997, at 84, 90.

3. Uncle Sam was also a creature of Thomas Nast, who took the name "Uncle Sam" and its general patriotic associations from public domain usage and created the image that we know today, which first appeared in an 1868 issue of Harper's magazine. Steve Cannon, Letter to The Mail, The New Yorker, January 19, 1998, at 7. Nast died around 1902, and under the proposed copyright extensions his rights to both Santa Clause and Uncle Sam would have continued until 1973.

4. Part of the reason for failure of the extension legislation introduced in the 104th Congress (H.R.. 989 and S. 483) was apparently the opposition of members who wanted to use extension as a bargaining tool to achieve some relief for small businesspersons who play broadcast performances in their business establishments. This issue is an important one, but we should not sacrifice the general public's interest in a vibrant public domain to effect whatever relief from strong copyright public performance rights Congress determines is appropriate for retail businesses. The extended term is wrong in and of itself. To compromise between the retail businesses and the promoters of term extension on these two issues would still leave the general U.S. public holding the bag--less benefit would go to copyright owners and more to retail business owners, but the public would still be footing the bill of higher royalties on very old copyrights and current authors would still be hindered in using our cultural heritage to create new works. Giving a small gain to other special interests (even if justified on the merits) cannot compensate for the public harm that would result from copyright extension.

5. Moreover, notwithstanding the mandatory "rule of the shorter term" in the EU, Germany remains bound by treaty with the U.S. to recognize the full life + 70 term for U.S. authors, and the United Kingdom will recognize its former life + 50 term for older works of U.S. authors if that term is longer than the 75-year term here at home. See infra pages 17-18.

6. U.S. Const. art. I, 8, cl. 8.

7. Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975)(footnotes omitted). See also Fogerty v. Fantasy Inc., 510 U.S. 517, 524 (1994)("The primary objective of the Copyright Act is to encourage the production of original literary, artistic, and musical expression for the good of the public"); Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340, 349-350 (1991)("The primary objective of copyright is not to reward the labor of authors, but 'to promote the Progress of Science and useful Arts'"); Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984)("The monopoly privileges that Congress may authorize are neither unlimited nor primarily designed to provide a special private benefit. Rather, the limited grant is a means by which an important public purpose may be achieved"); United States v. Paramount Pictures, Inc., 334 U.S. 131, 158 (1948)("The copyright law, like the patent statutes, makes reward to the owner a secondary consideration"); 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 [copyright] monopoly lie in the general benefits derived by the public from the labors of authors").

8. See infra pages 21-24.

9. 1 P. Goldstein, Copyright 1.1, at 6-7.

10. The proponents of the extension could at least have considered less drastic means of achieving their asserted goals. They might have proposed, for example, a "no injunction" regime 50 years after the author's death, which could provide a continuing royalty to the owners of copyrights in economically valuable works (at the expense of the public) but would at least permit current and future authors to use all old works, 50 years after their authors' deaths, in creating new ones. The proponents might also have considered a reversion of all rights in the extended term to the descendants of the individuals who created the work, whether in a work-for-hire situation or not. Or they might have suggested at least prospective limitation of the work-for-hire term to 70 years, in the interest of harmonizing our law with that of Europe. The law professors who have signed this testimony are not in agreement about whether any such limitations might temper their objections to the bill. The absence of any sign that measures of this type have even been considered, however, shows that the proponents of the extension have not concerned themselves with the public cost of their proposal. Congress, as representative of all the people and not just the special interests whose voices are loudest, must seek to maintain an appropriate balance by very carefully weighing the costs against the purported benefits.

    The provision of the bills that would allow, in the extended portion of the term, nonprofit uses by libraries and archives in cases where the copyright owner has not filed a notice to the contrary does not eliminate any of the objections to the bill. This provision gives no more than is already permitted under our applications of the principle of fair use. In fact, this provision actually takes away rights from libraries and archives that they already enjoy under current law, because where the copyright owner does file a notice objecting to such uses, courts are likely to read this provision as implying that fair use is no longer available.

11. See infra pages 14-24.

12. 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. Thus, the bulk of the windfall for copyright owners is not paid by Europeans but rather by Americans themselves.

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

14. 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 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 not lengthening 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.

15. Robert W. Kastenmeier & Michael J. Remington, The Semiconductor Chip Protection Act of 1984: A Swamp or Firm Ground?, 70 Minn. L. Rev. 417, 459 (1985); 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).

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

17. Homer's Odyssey, on which Ulysses was based, was itself recently the subject of a television miniseries.

18. Laurie R. King, The Beekeeper's Apprentice; A Monstrous Regiment of Women; A Letter of Mary.

19. The Disney company's free reliance on public domain materials to make some of its biggest hits is well known, notwithstanding that Disney supports the copyright extension in order to keep its own creative material from free use by others. But it should not be assumed that even Disney can easily license what it needs. A newspaper report states that the descendants of Victor Hugo in France were "profoundly shocked" at Disney's treatment of The Hunchback of Notre Dame and denounced the film as "commercial pillage of heritage." Related items in which Disney has a proprietary interest like toys and comic books were even labeled by the Hugo heirs as "scandalous and obscene." Chicago Tribune, March 11, 1997. We need not speculate on whether, had the Hugo work still been under copyright protection, these particular heirs would have been mollified by a cash payment or would have insisted as a matter of principle on exercising some editorial control. The point is that the need to negotiate copyright permissions long after the death of the creative author results in high transaction costs. In some cases, these costs can make a project economically unfeasible. In others, they can result in an unacceptable intrusion into the creative process of the current author who seeks to make use of the work.

20. 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).

21. See supra notes 2 & 3 and accompanying text.

22. Over 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 15, at 739-40.

23. 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 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, 354-58 (1996) (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").

24. 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).

25. 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.

26. Regulation 15.-(1), Statutory Instruments 1995 No. 3297: "Copyright in an existing work shall continue to subsist until the date on which it would have expired under the 1988 provisions if that date is later than the date on which copyright would expire under the new provisions." As a result, for example, an Irving Berlin song copyrighted in 1925 would go into the public domain in the U.S. in the year 2001 but would remain protected in the U.K. until 2039, 50 years after the death of the great American composer in 1989. In Germany that same song will be protected until 2069.

27. The EU Directive makes an exception from the mandatory rule of the shorter term for EU members who are bound by preexisting treaty obligations recognizing a longer term. Council Directive 93/98/EEC of 29 October 1993, art. 7(3). Therefore, U.S. works are protected in Germany for the full life + 70 term regardless of whether extension legislation is adopted here. Agreement between the German Reich and the United States of America, 27 Stat. 1021, Jan. 15, 1892, art. 1 (providing for unrestricted national treatment); see Wilhelm Nordemann, The Term of Protection for Works by U.S.-American Authors in Germany, 44 J. Copr. Soc'y, No. 1, at 1 (Fall 1996).

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

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

30. See supra pages 6-10.

31. 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).

32. 17 U.S.C. 203 (1994).

33. 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 at a 5% discount rate, 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 even this minuscule 5.4% 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.

34. 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.

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

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

37. Actually, the owners of rights in unpublished works did not lose anything like a perpetual state copyright right. Professor Abrams has convincingly shown that "common law copyright" is an inappropriate term for the level of protection afforded by the common law. The common law right in the author was at most a right of first publication. Howard B. Abrams, The Historic Foundation of American Copyright Law: Exploding the Myth of Common Law Copyright, 29 Wayne L. Rev. 1119 (1983). Thus, a perpetual right of first publication under state law was "lost" in exchange for full federal copyright, including the right of first publication, for 25 years. Of course, losing the state right of first publication even after the federal copyright expires will in most cases cost nothing, because the owners of the physical copy can, by denying access to that copy, prevent its publication even without legal rights.

38. Newspapers have reported that the manuscript of Louisa May Alcott's first novel, theretofore unpublished, was "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 too is in the public domain nearly everywhere else in the world. So much for "harmonization"!

The undersigned are all university professors who regularly teach or conduct legal research in the fields of copyright, intellectual property, or related fields.

Howard B. Abrams
University of Detroit Mercy School of Law

Howard C. Anawalt
Santa Clara University School of Law

Keith Aoki
University of Oregon School of Law

Stephen R. Barnett
University of California at Berkeley School of Law

Margreth Barrett
Hastings College of the Law

Joseph P. Bauer
Notre Dame Law School

Loftus E. Becker, Jr.
University of Connecticut Law School

Robert G. Bone
Boston University School of Law

William W. Bratton
Rutgers School of Law-Newark

Ralph S. Brown
Yale Law School

Dan L. Burk
Seton Hall School of Law

Paul D. Carrington
Duke University School of Law

Richard Chused
Georgetown University Law Center

Amy B. Cohen
Western New England College School of Law

Julie Cohen
University of Pittsburgh School of Law

Kenneth D. Crews
Indiana University School of Law - Indianapolis

Robert C. Denicola
University of Nebraska-Lincoln College of Law

Jay Dratler, Jr.
University of Hawaii William S. Richardson School of Law

Rochelle C. Dreyfuss
New York University School of Law

Rebecca Eisenberg
University of Michigan Law School

Eric M. Freedman
Hofstra University School of Law

Laura N. Gasaway
University of North Carolina School of Law

Robert A. Gorman
University of Pennsylvania School of Law

Paul J. Heald
University of Georgia School of Law

Peter A. Jaszi
American University, Washington College of Law

Mary Brandt Jensen
University of Mississippi School of Law

Dennis S. Karjala
Arizona State University College of Law

William J. Keating
Dickinson School of Law

John A. Kidwell
University of Wisconsin Law School

Edmund W. Kitch
University of Virginia School of Law

Robert A. Kreiss
University of Dayton School of Law

Lewis Kurlantzick
University of Connecticut School of Law

Leslie A. Kurtz
University of California at Davis School of Law

Roberta Rosenthal Kwall
DePaul University College of Law

William M. Landes
University of Chicago Law School

David L. Lange
Duke University School of Law

Marshall Leaffer
University of Indiana School of Law

Mark Lemley
University of Texas School of Law

Jessica Litman
Wayne State University Law School

Michael J. Lynch
University of Toledo School of Law

Peter S. Menell
University of California at Berkeley School of Law

Neil Netanel
University of Texas School of Law

Francis M. Nevins
Saint Louis University School of Law

Robert L. Oakley
Georgetown University Law Center

Tyler Ochoa
Whittier Law School

L. Ray Patterson
University of Georgia School of Law

Harvey Perlman
University of Nebraska College of Law

David G. Post
Temple University Law School

Margaret Jane Radin
William Benjamin Scott & Luna M. Scott Professor of Law, Stanford Law School

Leo J. Raskind
Brooklyn Law School

Pamela Samuelson
University of California School of Law

David E. Shipley
University of Kentucky School of Law

Louis B. Schwartz
Hastings College of the Law

David J. Seipp
Boston University School of Law

Lawrence A. Sullivan
Southwestern University School of Law

Eugene Volokh
UCLA Law School

Lloyd L. Weinreb
Harvard University Law School

Sarah K. Wiant
Washington & Lee University School of Law

Alfred C. Yen
Boston College Law School

The undersigned is in agreement with the conclusions of this Statement for substantially the reasons given.

Wendy J. Gordon
Boston University School of Law