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involved in negotiating the number of licenses required. Ultimately, the rapid changes in the intellectual property environment for creating and disseminating works may necessitate a reassessment by the international community of the underlying intellectual property rules. In the meantime, extending the protection period can only exacerbate this problem. The United States should be leading the world toward a coherent intellectual property policy for the digital age and not simply following what takes place in Europe.
REBUTTAL OF ARGUMENTS IN FAVOR OF THE EXTENDED COPYRIGHT TERM
Incentives for the Creation of Works
It does not follow that a longer term automatically drives creative authors to work harder or longer to produce works that can be enjoyed by the public. Indeed, there is necessarily a type of diminishing return associated with an ever-longer protection period, because the benefit to the author must be discounted to present value. As Macaulay observed over 150 years ago:
[T]he evil effects of the monopoly are proportioned to the length of its duration. But the good effects for the sake of which we bear with the evil effects are by no means proportioned to the length of its duration. . . . [I]t is by no means the fact that a posthiunous monopoly of sixty years gives to an author thrice as much pleasure and thrice as strong a motive as a posthumous monopoly of twenty years. On the contrary, the difference is so small as to be hardly perceptible. ... [A]n advantage that is to be enjoyed more than half a century after we are dead, by somebody, we know not by whom, perhaps by somebody unborn, by somebody utterly unconnected with us, is really no motive at all to action. . . .'
Thus, while an additional year of protection has little or no incentive effect at the time of a work's creation, the costs are immediate and substantial if the extension is to apply to existing works, as provided in the proposed legislation.
The copyright industries are by their nature very risky, and no one in these industries makes fmancial decisions based on even 50-year, let alone 70-year, projections. Moreover, under the United States Copyright Act, most transfers of copyright by an individual author may be terminated 35 years after the grant. '° The existence of these inalienable termination rights in individual United States authors makes it even more unlikely that anyone would pay more to
8 Macaulay, Works (Trevelyan ed. 1879) 199, quoted in Chafee, Refleaions on the Law of Copyright: II, 45 Colum. L. Rev. 719 (1945), requoted in R. Gonnan & J. Ginsburg, Copyright for the Nineties 307 (4th ed. 1993).
17 U.S.C.A. § 203.
Written Testimony of Intellectual Property Professors
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