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)

303 come into the copyright picture.'^ It is very likely that the copyright will have been retransferred after any termination before the current life + 50 year period has expired. Unless these transfers provide for a continuing royalty, there will be no royalties for the author's descendants who are alive thereafter. Moreover, even if the transferee is under obligation to pay a continuing royalty, it cannot be assumed that the royalty stream will accrue to distant relatives of the original author, such as great-grandchildren. The royalty may well be transferred outside the family, by will or otherwise, by earlier descendants. If sustenance to two generations of authorial descendants is really the goal, we should be considering prohibitions on transfers and/or stronger termination rights rather than a longer term of protection. Third, even the "natural law" argument on behalf of such distant descendants of authors is very weak. These equitable claims to a continued income stream obviously diminish with increasing temporal distance of descendants from the creative author. More important, while one can understand the desire of authors to provide a substantial estate to their immediate offspring, one must question the economic efficiency of a system that, as a matter of policy, seeks to grant an easy flow of income to a group of people the majority of whom the actual author may never have known. The descendants themselves would probably be better off, and certainly the general public would be better off, if they were to engage in some productive activity. United States copyright policy is not and has never been designed as a welfare system. It is therefore not entirely flippant to say to these distant descendants of creative authors who died 50 years ago what many now say to current welfare recipients: "Get a job! " Fourth, while the Directive in the European Union mentions protection for two generations of descendants as one of twenty-seven "Whereas" grounds for the extension in Europe," it has never been recognized as a goal of United States copyright law. Indeed, today's longer life expectancies were offered as a basis for the recent substantial extension of the copyright term in 1976, from 56 years to life -I 50 years, without any mention of a "two generation" goal. '" Surely life expectancies have not increased since 1976 to justify an additional 20 years of protection on this ground. Going to our current life -I 50 system was necessary in order for the United States to join the Berne Convention, and one could at least make a coherent argument that the benefits of joining Berne might outweigh the costs of the diminished public domain resulting from the longer copyright. The "two generation" argument, however, is devoid of any relationship to a public benefit. We therefore question whether such a claim comports with basic United States copyright principles and the social bargain that places works in the public domain after the copyright has expired. 12. Termination rights accrue 35 years after a grant by an author and expire 40 years thereafter. Because the extra 20 years that would be added by the extension to the protection period begin SO years after the author's death, all termination rights with respect to any authorial transfer will either have been exercised or have expired. 13. Council Directive 93/98/EEC (Oct. 29, 1993). 14. H.R. Rep. No. 94-1476, 94th Cong., 2d Sess. 133-34 (1976). Written Testimony of Intellectual Property E*rofessors Page 12