Copyright term, film labeling, and film preservation legislation : hearings before the Subcommittee on Courts and Intellectual Property of the Committee on the Judiciary, House of Representatives, One Hundred Fourth Congress, first session, on H.R. 989, H.R. 1248, and H.R. 1734 ... June 1 and July 13, 1995 (1996)

75 On the issue of duration of protection for copyrighted works in general, however, the European Union is pointing the way, and NMPA fears that way will be a dark and hostile one for American creators and copyright owners. The E.U. directive invokes reciprocity through the Berne Convention rule of the shorter term. Works of U.S. origin will fall into the public domain in the countries of the European Union at the expiration of their life plus 50 term while those same countries will grant works of their own authors an additional 20 years of protection. The only way U.S. works can qualify for the extended term in Europe is for our law to grant an equal extension. In other words, for H.R. 989 to become law. As this subcommittee considers H.R. 989 and issue of term extension from a domestic policy standpoint, however, NMPA urges you to consider addressing an additional point not now covered by the bill; the issue of duration of transfers of rights. U.S. copyright law, back to the very first copyright act passed in 1790, has struck a balance between interests of individual authors who create works and the publishers who foster the goals of copyright by promoting the wide dissemination of those works to the public. In various acts up to and including the 1909 Copyright Act, this was accomplished by a split-term of protection. The 1909 act, for example, divided 56 years of copyright protection into two 28-year terms, often referred to as the original and renewal terms. The theory behind this approach in part was to give the author a second opportunity at the beginning of the second or renewal term, to renegotiate a transfer of rights that may have proven to be less than satisfactory. The author was given a "second bite at the apple" that could take into account the demonstrated value of the works in the marketplace. With the evenly divided bifurcated term, each time the duration of the copyright was extended to the benefit of authors, publishers who made the initial investment in bringing the work to the public received an extended opportunity to recover their investment through a longer original term of protection. Congress, with an eye toward the U.S. accession to the Berne Convention, determined in the 1976 Copyright Act to switch from a fixed 56-year term of protection to the Berne's minimum of life of the author plus 50 years. In the years of congressional review that preceded the major statutory rewrite, the question of how to maintain a balance between creators' and publishers' interests achieved by the split copyright term was thoroughly debated. The notion of incorporating a statutory cap on the duration of copyright transfers was eventually agreed upon as the appropriate approach. When it was suggested that the cap be set at 25 years, Julian Abeles, then head of the organization had later became NMPA, pointed out that a 25-year limitation would make publishers 3 years worse off than they had been under the 1909 act's 28year original term. Before the panel of experts convened by the Copyright Office, Mr. Abeles said: Today there are so few songs of any one publisher that have the potential. The publisher has to employ all possible ways and means, including a substantial ex