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)

301 already been produced. Yet, if the extension were purely prospective (i.e., applicable only to new works), we could be certain that support for it would wither rapidly. Thus, the real issue is the continued protection of old works--not those that will enter the public domain 50 (or 70) years from now but rather those due to enter the public domain today. These works were originally published in 1920 (works published before 1978 have a flat 75-year copyright rather than the current life + 50 for individual authors). At that time, the law afforded a maximum of 56 years of copyright protection. This period was expanded to 75 years in 1976, and now the descendants and assignees of these authors want yet another 20 years. The very small portion of these works that have retained economic value have been producing royalties for a full 75 years. In order to continue the royalty stream for those few copyright owners, the extension means that all works published after 1920 will remain outside the public domain for an extra 20 years. As a result, current authors who wish to make use of any work from this period, such as historians or biographers, will need to engage in complex negotiations to be able to do so. Faced with the complexities of tracking down and obtaining permission from all those who by now may have a partial interest in the copyright, a hapless historian will be tempted to pick a subject that poses fewer obstacles and annoyances. Copyright in Works Never Published Prior to 1978 Until the effective date of the Copyright Act of 1976, works that had never been published were protected under the various state copyright statutes. Only published works were governed by the federal statute. However, the 1976 Act preempted state protection for unpublished as well as published works and, as a quid pro quo for the loss of perpetual state copyright protection, recognized a copyright in these previously unpublished works until the year 2003. As an incentive to publication of these works, the current law also extends their copyrights until the year 2027, provided they are published prior to 2003. The proposed legislation would extend these periods by 10 and 20 years, respectively, so that a previously unpublished work will be protected until 2013 and, if published prior thereto, it will remain under copyright until the year 2047. An example is the recently discovered fragment from a draft of Mark Twain's Huckleberry Finn. The copyright on the published novel was registered in 1884, renewed by Twain's daughter in 1912, and expired in 1940. Even if a life + 70 system had been in place at the time of the work's creation, the copyright would have expired in 1980, along with everything else Marie Twain wrote (because he died in 1910). Because this story of Huckleberry Finn and Jim in the cave has now been published, however, current law recognizes the copyright until 2027. Under the proposed extension, the copyright on this story, already over 110 years old, will continue until the year 2047. We are not aware of any arguments in support of these particular extensions of the copyright period of protection. In contrast to the Mark Twain fragment, most of these works have only scholarly value, because if they were readily available and had economic value, they would already have been published. Moreover, many of these works are truly aiKient-letters Written Testimony of Intellectual Property Professors Page 10