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)

306 important United States concept of fair use. "Harmonization" is therefore not in itself a valid ground for extending any of our current copyright protection terms. Unequal Treatment of United States Copyright Owners In addition to lengthening the copyright term for individuals to life + 70 years, the European Union has adopted the "rule of the shorter term," under which works are protected only for the shorter of the European term or the term in the country in which the work originates. Therefore, it is true that retaining our current term of protection would deny some United States copyright owners (mainly companies rather than individuals) the financial benefit of this European windfall. But the mere fact that the European Union has adopted a bad idea does not mean that the United States should follow suit. France might elect in the future, for example, to give the works of Voltaire or Victor Hugo perpemal copyright protection, but that would be no reason for us to do the same with Mark Twain or Emily Dickinson. The European copyright tradition, as we have noted, differs in important ways from that of the United States, primarily by treating copyright as a kind of natural entitlement rather than a source of public benefit. The European approach may on balance tend to discourage, rather than promote, new artistic creativity. We should not, therefore, assume that a policy giving a few United States firms and individuals an added financial windfall from works created long ago necessarily is one that promotes our long-term competitiveness in the production of new works. This extension proposal is perhaps an occasion to consider the special character of United States copyright and the features that distinguish our law from its continental counterparts. The constimtional concept of a limited term of copyright protection is based on the notion that we want works to enter the public domain and become part of the common culmral heritage. It is worth noting that in this century United States cultural productivity and international market share has been much greater than that of Europe. The genius of the American system is that it balances public and private rights in such a way as to provide a rich collective source on which to base new and valuable productions. This makes us wealthier not only culturally but in a hard-nosed economic sense as well. We must ask whether we really wish to remake our cultural industries in the image of Europe. This is not, in fact, a conflict between Europe and the United States. The real conflict, in both Europe and the United States, is between the interest of the public in a richer public domain and the desires of copyright owners (who may or may not be relatives of authors) to control economic exploitation of the copyright-protected works that remain in their hands. That Europe has resolved the conflict one way does not mean that we should blindly follow suit. The arguments for maintaining a rich public domain in the United States are not diminished by the withdrawal of works from the public domain in Europe, or even by the partial withdrawal of only "European" works. If Europe protects "its" copyright owners for a life -I70 year period, its public domain is reduced, and the European general public suffers a net loss. The United States public, however, as opposed to individual copyright owners, is not harmed Written Testimony of Intellectual Property Professors Page 15