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                                                                                                                       October 8, 1997

The Honorable Henry J.  Hyde, Chair
House Judiciary Committee
U.S. House of Representatives
2110 Rayburn House Office Building
Washington, DC 20515

Dear Representative Hyde:

On behalf of the American Association of University Professors, I am writing to urge you to oppose H.R. 2589, the Copyright Extension Act of 1997, as approved by the House Judiciary Committee's subcommittee on Courts & Intellectual Property on September 30, 1997.

The American Association of University Professors is a national membership organization of 44,000 faculty members from all scholarly disciplines.  Founded in 1915, it is a charitable and educational organization concerned with the protection of academic freedom, tenure, and related higher education issues.  As academics we deal with intellectual property issues every day, both as creators and as users. This makes us especially sensitive to the historical balance of our nation's intellectual property tradition.

The Copyright Extension Act would extend current copyright protection for a period of 20 years.  Proponents argue that copyright extension is necessary to provide incentive for new creative work.  Another major contention of the proponents of this legislation is that it is necessary to "harmonize" our law with international copyright standards, and to protect the balance of trade in intellectual property.  They cite the recent adoption of a "life plus 70 years" term by the European Union, and the EU's "rule of the shorter term."  That rule allows EU members to recognize another nation's shorter copyright term for works from that nation.

United States copyright law is grounded in Article I, Section 8, Clause 8 of the Constitution which gives Congress the power to secure "for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."   However, the Constitution specifies that the power is to accomplish the specific purpose of promoting  "the Progress of Science and useful Arts."  Under the Constitution, the purpose of copyright law is the promotion of useful knowledge, and the public benefit is paramount.  The law allows private benefits to creators as incentive, but those private benefits must be balanced against the benefits to the public. The public benefits not only from access to copies of works entering into the public domain for educational purposes, but from new creators deriving new works from older works.  A vibrant public domain is essential to the progress of science and useful arts.  Over the years Congress has already changed the definition of that balance several times.

The original copyright law of 1790 gave "authors and inventors" 14 years of protection, plus a 14-year term of renewal for a total of 28 years of protection. The term has been extended 3 times since then; in 1831, to a maximum of 42 years; in 1908, to a maximum of 56 years, and most recently; in 1976, to 50 years after the death of the author, (or 75 years after publication for corporate authors.)  The 1976 Act also extended the term for works created before 1978 another 19 years to make the term 75 years.

That an additional 20 years (beyond the current term of 50 years after the death of the author) is necessary to provide incentive for creation cannot seriously be argued.  But if it were the case, why include already created work?  As former Senator Hank Brown noted in the last Congress "we cannot provide an incentive to create something that has already been created!"  And a term of 70 years after the death of the author, certainly stretches the definition of "limited times" called for by the Constitution.  More importantly, the Constitution sought to protect "authors and inventors" directly, rather than individuals or corporations who happen to have purchased the copyright.

The other major justification for the bill, "harmonization" with international standards, is frequently asserted, but is without merit.  As both proponents and opponents of the legislation have noted, this nation leads the world in the creation of intellectual property.  That leadership has emerged under current law.  Moreover, the bill fails to achieve "harmonization."  The European Union only protects corporate authorship for 70 years, which is shorter than U.S. current law (75 years), much less the
proposed 95 year term.  The real benefactors of a term extension bill are those who currently own the copyrights of a few pieces of economically rewarding and previously created work.  The controversy over Section 4 of the bill (calling on the studios and "screenwriters, directors, and performers" to negotiate in good faith,) illustrates the point.  Some members of the subcommittee on Courts and Intellectual Property disagreed over the propriety of Sense of the Congress language calling for good faith negotiations on the increased royalties.  Others justified Congress intervening in negotiations between private groups, because by passing this bill, Congress was creating "a new right," "something of value" and "added value."  Furthermore, the negotiations involved "only that value Congress created" and traditional tactics, such as witholding work, were not available.  Precisely!  The negotiations are only necessary because Congress is "creating something of value" on work that is already created.  And that "added value" goes to those who own the copyright today, not necessarily the authors who created
the original value.  The extension proposal will add nothing to the nation's great wealth of creativity;  on the contrary it will add to the wealth of a few who hold exclusive property rights over "authors and inventors" works.

 In our daily work members of AAUP strive to maintain that delicate balance between the rights of the creator, and the dissemination of knowledge for the public benefit.  The intellectual and cultural heritage of this country comprises a major component of what we teach.  We will always defend the legitimate rights of the creator, but the existence of a rich and vibrant public domain is essential to the growth and continued existence of that heritage.  This proposal disrupts the balance between private and public benefits the Consitution mandates for copyright law.  We urge you to reject this bill which benefits a relative handful at the expense of the public at large.

Sincerely yours,
 

Mary Burgan
General Secretary

Members of House Judiciary Commiittee

Henry J. Hyde, Chair (R-IL)
F. James Sensenbrenner, Jr., (R-WI)
Bill McCollum (R-FL)
George W. Gekas (R-PA)
Howard Coble (R-NC)
Lamar S. Smith  (R-TX)
Steven Schiff (R-NM)
Elton Gallegly (R-CA)
Charles Canady (R-FL)
Bob Inglis (R-SC)
Bob Goodlatte (R-VA)
Steve Buyer (R-IN
Sonny Bono (R-CA)
Ed Bryant (R-TN)
Steve Chabot (R-OH)
Bob Barr (R-GA)
William L.Jenkins (R-TN)
Asa Hutchinson (R-AR)
Edward A.Pease (R-IN)
Christopher Cannon (R-UT)

John Conyers, Jr., Ranking Member (D-MI)
Barney Frank (D-MA)
Charles E.Schumer (D-NY)
Howard L.Berman (D-CA)
Rick Boucher (D-VA)
Jerrold Nadler (D-NY)
Robert C.Scott (D-VA)
MelvinWatt (D-NC)
Zoe Lofgren (D-CA)
Sheila Jackson Lee (D-TX)
MaxineWaters (D-CA)
Marty Meehan (D-MA)
William Delahunt (D-MA)
Robert I.Wexler (D-FL)
Steven R.Rothman (D-NJ)