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)

409 tion you have to give it to authors, and I think the pubUc poUcy has to be to give it to authors. Mr. MoORHEAD. Yes? Mr. Reichman. Your question is a good one. Narrowly, let me just say we already have adopted the policy of terminating authors' contracts to restore ownership of copyrights after 35 years. So this would not be a novel principle. It would just be continuing a principle we've already accepted. The question is, why do we do this? Why do we treat intellectual property different from tangible property? Well, if you think about it, it is different because you can put up a fence around your property and you don't need the State to intervene, and I can't come on to your property. But, in reality, there are no fences around intellectual property. There would be no publishers unless you, as Congressmen, manufactured these artificial legal fences that travel imperceptibly with intangible works and that tell me, even though I have possession of the physical support that I can't make uses of the work it embodies. Why do you create these legal fences? Because you want to make a market that wouldn't exist without intellectual property rights. However, you also want to attain a fair market place and a competitive balance between those who create and those who exploit. Therefore, when you make that market artificially and erect a fictitious fence that doesn't exist in nature, you tell publishers that we have to look out for our authors and our artists because people like W.C. Handy can't always look out for themselves. So we have a paternalistic element in our copyright law; all copyright laws contain some paternalistic measures to protect authors. And I don't think we need to apologize for it. We would think twice about disturbing a lease; but I don't think we would need to think twice about allowing W.C. Handys, to terminate transfers, because if we didn't already give the publisher this artificially created exclusive right, he couldn't exploit the artistic works of the W.C. Hamdys in the first place. So it's only fair to say, well, if he exploits your work, you, the artist ought to get a fair return for as long as he exploits it. Mr. MoORHEAD. Well, you know Mr. Hoke. Would you yield for a moment, Mr. Chairman? Mr. MOORHEAD. I'd be happy to. Mr. Hoke. The point you're making, the only problem with it is when you say that the publisher couldn't exploit the right if we didn't give the right to Handy in the first place, it's a little bit circular in that, if the right wasn't given, if the right had not been given to the author in the first, then there would be no right Mr. Reichman. There would be no market. There would be zero lead time. Anyone could copy such a work Mr. Hoke. Precisely. Everybody would be able to publish the same piece of intellectual property. Mr. Reichman. And the thinking is that market failure would be virtually total; that it would be a great disincentive to invest in these enterprises because you can't tell in advance which works are going to be successful. Even a very successful one would be there for a minute only, and then copiers would move in like sharks. Consider even the most successful musical comedies, say those of