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)

297 works. At a time of rising educational costs we should inquire into the effect on our schools of a reduced public domain due to an extended protection period. Something more than anecdotal evidence should be presented before we accept the claim that the consuming public will not incur higher costs from the longer period. Cost of a Diminished Public Domain An even more important cost to the public is that paid in desirable works that are not created because of the continuing copyright in underlying works: More than a nodding acquaintance with the concept of public domain is essential to comprehension of intellectual property law and the role of the United States Congress in creating that law. The addition of a creation to the public domain is an integral part of the social bargain inherent in intellectual property law.* While primary control over the work, including the rights to refuse publication or republication and to create derivative works, properly remains in the author who has created it, giving such control to distant descendants of the author can deprive the public of creative new works based on the copyright-protected work. Artistic freedom to make creative derivative works based on public domain works is a significant public benefit, as shown by musical plays like Les production costs (including a noimal return). This does not mean that the public domain status is irrelevant, because if a royalty were required in addition, such a book might not be republished at all. It may also be that the works in question are not public domain works but rather derivative works based on public domain works. A new derivative work is, of course, itself copyright protected and can be expected to sell at the same price that the public pays for other protected works in that category. In this case, continued copyright protection for the underlying work may require sharing of the profits generated by the new work, with no economic benefit to the public in the form of a lower net price. As there is also no net economic cost to the public, however, the economic effect of lengthening the protection period requires identification of the parties sharing the monopoly. One of those parties is, by hypothesis, the new author, whose creativity has resulted in the new derivative work. The other will be the owner of the copyright in the underlying work, who may or may not be distant descendants of the original author. In this case, true concern for authors would seem to favor not lengthening the protection period. Finally, as discussed below, when the underlying work remains under copyright, the real cost to the public may come from those new derivative works that are not created because of the new author's inability to negotiate permission from whoever owns the copyright SO years after the original author's death. Robert W. Kastenmeier & Michael J. Remington, The Semiconduaor Chip Protection Aa of 1984: A Swamp or Firm Ground?, 70 Minn. L. Rev. 417, 459 (1985); see also Peter Jaszi, When Works Collide: Derivative Motion Pictures, Underlying Rights, and the Public Interest, 28 U.C.L.A. L. Rev. 715, 804-05 (1981). Written Testimony of Intellectual Property Professors Page 6