A quiet battle has been raging in the United States for the past three years regarding a proposed legislative Act that, if passed, would affect artists, authors, heirs, the entertainment industry, and many others. The Copyright Term Extension Act, proposed in its current version to the Senate by Senator Hatch on March 20, 1997, and to the House by Representative Coble on October 1, 1997, essentially seeks to extend the term of copyright protection by an additional 20 years. See 1997 US S.B. 505, 1997 US H.B. 2589. While the Bill seems to have generated strong support among members of Congress, big business, and the heirs of artists, there is considerable opposition to the proposed Act coming primarily from academics in the intellectual property field.

History

In 1790, Congress established the first term of protection for copyright allowing an initial 14 years of protection with a renewable term of an additional 14 years. In 1831, the term was extended to 28 years plus a 14 year renewal term. In 1909, major changes were made to all aspects of copyright protection including extending the term of protection to 56 years. Finally, in 1976, the copyright term was fundamentally altered to grant copyright protection for the life of the author plus 50 years. The 1976 change brought the United States within compliance of the international standards established by the Berne Convention, which mandates a minimum term of protection for the life of the author plus 50 years. See 141 Cong. Rec. S3390 (statement of Sen. Hatch), see also [http://www.public.asu.edu/~Dkarjala/legmats/hatch95.html].

Effect of the Copyright Term Extension Act

The proposed extension of the copyright term would add an additional 20 years of protection for works and joint works created after January 1, 1978, granting protection for the life of the author (or last surviving author) plus 70 years. Anonymous or pseudonymous works and works made for hire would be granted protection for 95 years from the year of first publication or 120 years from the year of creation (currently 75 and 100 years respectively). Works created prior to January 1, 1978, and published before December 31, 2002, would be protected for an additional 20 years, extending protection until the year 2047. The copyright in a work subsisting would be extended from 47 to 67 years. Finally, copyrights in their renewal term would be granted a term of 95 years from the date the copyright was originally secured. See H.R. 2589, 105th Cong. (1997), see also http://thomas.loc.gov/cgi-bin/query/z?c105:H.R.2589.

The Debate

While proponents of the Copyright Term Extension Act have several arguments for adding 20 years to the protection of copyrights, close analysis reveals the arguments lack strength. Proponents of the Act focus mainly on the artist as the copyright owner when arguing that increasing life spans are undermining copyright protection’s economic incentive to create intellectual works. Although there are artists who have retained copyright ownership, more often the artist has granted the rights to publishers and companies. This fact is highlighted by those supporting the Act - movie and music companies, book and music publishers, and software companies. It is these big businesses that will benefit from the term extension if a grant has been made, not the artists.

Assuming an artist retained ownership in the copyright, the artist is currently guaranteed royalties until well past her death. The longer an artist lives, the longer the protection of the work lasts, thus arguments based upon longevity of life are ill-founded when the term of protection depends upon the life of the artist. The bargain artists made for protection was that at some point in the future protection would end and the public would be entitled to freely use the work. It is the artist for whom the economic incentive to create was primarily intended, not the artist's heirs who have made no contribution to the cultural enrichment of the nation. Additionally, for works that already subsist, there is no incentive to create because the work already exists.

Proponents additionally argue that extending the term of protection will increase the availability of works. As new methods of storing works, such as digital conversion, become viable, businesses will only invest in such costly conversions if they will realize profits. Without the proper incentive, businesses will not invest in digitizing older works, and thus decay will cause these works to become extinct. While it seems plausible that without economic incentives businesses will not invest in maintaining works; however, it seems more implausible that businesses will make an investment today because of the possibility of an additional 20 years of royalties decades later, if the work is still popular.

Increasing the term has the more immediate effect of decreasing the number of works in the public domain. Historically, works in the public domain have stimulated the creation of new works. For example, the Disney movie Snow White, which has become an American classic, was created from a story in the public domain. By increasing the term of protection, the public loses valuable years of works being available in the public domain and must pay increased prices from royalties. Additionally, the Constitution only grants copyright protection “for limited times.” While the Supreme Court has yet to define “for limited times” it seems that life plus 70 years stretches the plain meaning of “for limited times” making the proposed copyright term extension potentially unconstitutional.

The proponents final argument focuses on the Berne Convention’s “Rule of Shorter Term.” The “Rule” dictated by Article 7(8) calls for protection of foreign works for the shorter of either the term of protection in the artist’s home country or the term of protection in the foreign country. In the case of the United States, the current term of protection is life plus 50 years, which is shorter than the EC’s protection of life plus 70 years. Thus, American works abroad will be granted 20 years less protection than foreign works. In order to equalize protection, proponents argue that the United States must increase the copyright term by 20 years. Instead of increasing the copyright term by 20 years and suffering the ill effects of a decreased public domain, increased prices, and longer protection of corporate copyrights, U.S. trade representatives should negotiate the end of the discriminatory “Rule of Shorter Term.” Just because Europe has made a mistake, does not mean the United States should be pressured into following Europe’s bad lead a mere 22 years after the last significant change in the copyright term.

The above arguments serve as the primary points of contention between proponents and opponents of the Copyright Term Extension Act. For additional arguments and updated information regarding the Copyright Term Extension Act visit these websites:

1. Copyright Office Home Page - http://lcweb.loc.gov./copyright

2. Opposing Copyright Extension - http://www.public.asu.edu./~dkarjala

POSTED FEBRUARY 20, 1998 (Title Correction - March 22, 1998 - Eds.)