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)

Record Details:

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295 intellectual property rights, or strengthen old ones, simply because it appears that a worthy person may benefit; rather, we do so only for a public purpose and where it appears that there will be a public benefit. The current statutory foundation of copyright protection, the Copyright Act of 1976, is itself the product of lengthy debate and represents innumerable compromises that seek to achieve the proper balance between private returns to authors and public benefit, including a broad public domain that permits current authors to build on the cultural heritage from those who have come before them. We are aware of no effort by the proponents of this extension legislation to show that the public benefits from its enactment would outweigh the costs. Indeed, they have demonstrated no public benefit whatsoever and have barely attempted to do so. Yet, the public cost in the form of a diminished public domain is obvious.^ As we demonstrate below, this public cost is not offset by any increased incentive to create new works, nor does international trade in intellectual property rights fill the gap between public costs and public benefits. Europe, whose copyright law is based more on a natural rights tradition, has recently moved to a life + 70 regime for individual authors and a 70-year period of protection for corporate authors. That should not cause us to change our underlying intellectual property philosophy. Nor does it provide a reason for avoiding the careful cost/benefit analysis called for by that philosophy. The United States joined the Berne Convention for many good reasons, one of which was to become an influential leader in world intellectual property policy. Our underlying policy has served us well, as shown by our dominant position in the worldwide markets, particularly for music, movies, and computer software. Rather than following Europe we might better seek to persuade Europeans that our approach to intellectual property rules both rewards creativity and promotes economic efficiency. In the following sections we consider in some detail the arguments put forward in support of the extension. We fu-st show the very real and substantial costs to the public that would result from adoption of this legislation— costs that are ignored by the arguments of its proponents. We The proponents of the extension could at least have considered less drastic means of achieving their asserted goals. They might have proposed, for example, a 'no injunction' regime SO years after the author's death, which could provide a continuing royalty to the owners of copyrights in economically valuable works (at the expense of the public) but would at least permit current and future authors to use all old works. 50 years after their authors' deaths, in creating new ones. The proponents might also have considered a reversion of all rights in the extended term to the descendants of the individuals who created the work, whether in a work-for-hire situation or not. Or they might have suggested at least prospective limitation of the work-for-hire term to 70 years, in the interest of harmonizing our law with that of Eim)pe. The law professors who have signed this testimony are not in agreement about whether any such limitations might temper their objections to the bill. The absence of any sign that measures of this type have even been considered, however, shows that the proponents of the extension have not concerned themselves with the public cost of their proposal. Congress, as representative of all the people and not just the special interests whose voices are loudest, must seek to maintain an appropriate balance by very carefully weighing the costs against the purported benefits. Written Testimony of Intellectual Property Professors Page 4