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)

286 granting artists and authors a limited monopoly; it gives authors exclusive rights to exploit their own work. The proposed addition of twenty years of copyright protection may encourage future creativity on the part of individual authors who wish to provide a livelihood for themselves and their immediate heirs. Indeed, one reason given for extending the term from "life plus fifty" to life plus seventy" is the projected increase in the human life span. Thus the post mortem auctoris term of seventy years should protect two generations of descendants. Again, the logic used to arrive at the proposed twenty year extension of present protection cannot be applied to works made for hire. Their "authors" are corporations whose "life span" is not changed by increases in human longevity. Works made for hire are currently protected for a term of seventyfive years. The new legislation proposes an extension of twenty years to give corporations a "limited monopoly" of ninety-five years. The argument that has been used to support this extension has been the need for international conformity. Yet, since the Copyright Act of 1976, American works for hire have enjoyed a longer period of protection than their European counterparts. The Berne Convention established a term of fifty years of protection after publication for cinematographic works.' Have we suddenly entered an international term-extension race where our seventy-five has forced the Europeans to abandon their fifty for a new ninety-five? Is there a reason for the new numbers? On what needs are they based? The extension of copyright protection can have no impact as a stimulus for creativity in terms of existing works. This argument cannot be used to justify a retroactive term extension for existing works. These works already exist, produced under different incentives and constraints. It is not clear that the proposed change for works made for hire from seventy-five to ninety-five years will measurably increase creativity. The corporations that produce motion picture and television programs operate on a short-term financial basis. Their incentive for the publication of these works is far more immediate in terms of rewards. They need to recoup their costs and make a profit during their initial play-off, which runs from roughly two to five years and includes a film's initial theatrical release, its sale to cable, its marketing on video, its sale to network television, and its syndication. After its initial playoff, a film becomes an "asset" in the corporation's library of holdings. Any profit that it generates after its initial play-off is pure gravy and has little or no relation to the initial incentives which led to its production. The extension of copyright poses a threat to the concept of public domain, which lies at the basis of copyright law. The United States Constitution has given Congress the power "to promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."^ As the Supreme Court noted, the concept of a limited monopoly encourages and rewards creativity on the one hand while assuring that the work will ultimately enjoy widespread public availability.' The public domain is designed to function as a vital source for new works. Indeed, Disney, one of the corporations that