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a copyright owner. By definition, this loss can never be known, but that makes it no less real or substantial.
The creation of new works is dependent on a rich and vibrant public domain. Without good reason to expect a substantial compensating public benefit, we should not risk tying the hands of current creative authors and making them less competitive in domestic and international markets just to supply a financial windfall to owners of copyrights in works created long ago. Just as Santa Claus and the Easter Bunny are part of the public domain that anyone can use every Christmas and Easter season, so eventually should Mickey Mouse and Bugs Bunny also join our freely available cultural heritage. That is a crucial part of the copyright "bargain" that the public made at the time these works were created.
We recommend that the proposed legislation be rejected. The issue is certainly an important one, but the legislation is premature at best where there has been no empirical demonstration of a public benefit and no thorough exploration of alternative approaches.
UNITED STATES COPYRIGHT POUCY
Both Congress and the courts have uniformly treated United States copyright law as an instrument for promoting progress in science and the arts to provide the general public with more, and more desirable, creative works:
The limited scope of the copyright holder's statutory monopoly, like the limited copyright duration required by the Constitution, reflects a balance of competing claims upon the public interest: Creative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts. The immediate effect of our copyright law is to secure a fair return for an "author's" creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good.'
United States copyright tradition is in this respect philosophically different from that of many other coimtries that treat intellectual property as natural rights of individual creators. Under our system. Congress need not recognize intellectual property rights at all, but if it does, the purpose must be to promote innovation in science and the useful arts.
Our system of copyright protection is delicately balanced. We recognize exclusive rights in creators so that consumers have available an optimal number and quality of works but want those rights to be no stronger than necessary to achieve this goal.^ We do not recognize new
I. Twentieth Century Music Corp. v. Aiken. 422 U.S. 151, 156 (1975)(footnotes omitted).
2 1 P. Goldstein, Copyright ยง 1 . 1 . at 6-7.
Written Testimony of Intellectual Property Professors
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