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)

298 Miserables, Jesus Christ Superstar, and West Side Story, as well as satires like Rosencrantz and Guildenstem are Dead and even literary' classics like James Joyce's Ulysses. Although these might not necessarily be considered infringing derivative works even if the underlying work were under copyright, or might be excused by the fair use doctrine if otherwise infringing, their authors must necessarily take a cautious approach if a license is unavailable. When copyright subsists long after an author's death and there is no provision for compulsory licensing, the creation of derivative works that closely track a substantial part of the underlying work can be absolutely prohibited by copyright owners who have no creative relationship with the work at all. Authors of histories and biographies can also be inhibited from presenting independent analyses of earlier authors and their works by descendants who, for whatever personal reason, use copyright to prevent the publication of portions of protected works. An important cost paid by the public when the copyright term is lengthened, therefore, is contraction of the public domain. The public domain is the source from which authors draw and have always drawn.' The more we tie up past works in ownership rights that do not convey a public benefit through greater incentive for the creation of new works, the more we restrict the ability of current creators to build on and expand the cultural contributions of their forebears. The public therefore has a strong interest in maintaining a rich public domain. Nobody knows how many creative works are not produced because of the inability of new authors to negotiate a license with current copyright holders, but there is at least anecdotal evidence that the number is not insubstantial.^ Unless evidence is provided that a life + 70 regime would provide a significant added incentive for the creation of desirable works, the effect of an extension may well be a net reduction in the creation of new works. This point may be highlighted by the rapid developments now occurring in digital technologies and multimedia modes of storing, presenting, manipulating, and transmitting works of authorship. Many multimedia works take small pieces of existing works and transform them into radically different combinations of images and sounds for both educational and entertainment purposes. The existing protection period, coupled with termination rights, may well be distorting or inhibiting the creation of valuable multimedia works because of the transaction costs See generally Jessica Litman, The Public Domain, 39 Emory L.J. 965 (1990); David Lange, Recognizing the Public Domain, 44 L. & Contemp. Probs. 147 (1981). For an argument that copyright is also intended to accommodate users' rights, see L. Ray Patterson & Stanley W. Lindberg, The Nature of Copyright (1991), which includes a Foreword by former Congressman Kastenmeier. Nearly 50 yean ago Professor Cbafce pointed to examples in which the veto power of copyright in an author's descendants deprived the public of valuable works. Chafee, Reflections on the Law of Copyright: II, 45 Colum. L. Rev. 719 (1945). There have been press reports of refusals by the estate of Lorenz Hart of permission to use Hart's lyrics to any biographer who mentions Hart's homosexuality and of censorship by the husband of Sylvia Plath of the work of serious biographers who wish to quote her poetry. Professor Jaszi has provided examples of derivative-work films whose continued distribution has been limited or even suspended because of conflicts with the owner of the copyright in the underlying work. Peter Jaszi, supra note 6, at 739-40. Written Testimony of Intellectual Property Professors Page?