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A subsidiary argument made by opponents is that extension of term will cause disproportionate harm to valuable uses in the public interest: uses in the field of science and education, which draw upon older works for their content or historical significance. These are the types of uses most likely to be permitted without the copyright owner's consent, either under the fair use doctrine or under a specific exemption in the Copyright Act, as well as the most likely to be licensed at a low price. Thus, for example, noncommercial uses of reasonable portions of works for educational or scientific purposes in many circumstances will qualify as fair use.^'
Motion pictures will relatively seldom be the subject of such uses. Old movies are typically used for entertainment value rather than for educational or scientific purposes. When educators wish to show movies to their students, they may be privileged to do so under the Copyright Act's specific exemption for classroom performances and displays.^'
2 . Creation of fewer derivative works
The second principal negative consequence identified by opponents is that fewer new derivative works will be created based on the works whose terms are extended. If second authors are not abie freely to use these existing works during the 20 additional years of protection, but must secure consent and/or pay a fee, they may be chilled from creating. Opponents reason that the result may be a net reduction in the total creation of new works--i.e., that the decrease in creation of derivative works will surpass the increase in creation of entirely original works caused by the incentive of a longer term. This argument assumes that a significant number of second authors (1) wish to build on these older works; (2) will be either unable to get consent or unwilling to pay; and (3) will not create a different work instead (one that is entirely original, one that uses only small portions of the work, or one that builds on a public domain or more easily licensed work) .
Again, the current copyright system is founded on the premise that more authorship will result from the incentive of copyright protection than will be lost from the inhibition on second authors. If more works are created than chilled during a term of life plus 50, it is unclear why that ratio would be reversed during the next 20 years. Although marginal incentives during that time period may be smaller, the need to use these
" See 17 U.S.C. § 107; Campbell v. Acuff-Rose Music. Inc.. 114 S. Ct. 1164 (1994) .
" 17 U.S.C. § 110(1) .