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Fortunately, the problems with H.R. 989 can be easily fixet and your good intentions full realized. As discussed more below, all you need do is either vest the proposed extra 20 years automatically in the author, either following the approach already taken in the bill, or, alternatively — and this is my preference by going to a life plus 70 term for all works, regardless of when published.
A Brief Review of Term of Protection in the United States
In order fully to understand the provisions of H.R. 989, a brief review of the history of the term of protection in the United States may be helpful since H.R. 989 reaches back as far as works first published in 1920.
Article I, section 8, clause 8 of the Constitution empowers Congress to grant authors the exclusive right to their writings ••for Limited Times," but without any guidance as to what the phrase means, other than, obviously, not permitting perpetual copyrights. Congress has not been particularly generous in granting copyright protection, so the limits of the Constitutional power have never been tested.
The first U.S. Copyright Act, the Act of 1790,' began the pattern, only broken 186 years later in the 1976 Act,^° of measuring copyright from an event other than the author's life.^^ From 1790 to 1908, that event was filing a prepublication title page of the work either with the clerk of the district court where the author resided (from 1790 to 1869) or with the Library of Congress (from 1870 to 1908). From 1909 to 1977, copyright was measured from the date of first publication of the work.^^
^ Act of May 31, 1790, 1st Cong., 2d Sess., 1 Stat. 124.
^° The 1976 Act was effective January 1, 1978.
^^ By contrast, the first French Act, that of 1793, was based on the life of the author. In 1814, the British went to a term of 28 years plus the remainder of the author's life if he or she was alive at the end of the 28 year period. 53 Geo. Ill, ch. 156. In 1842, the British switched to a term of 42 years or life of the author plus 7 years, whichever was longer. 5 & 6 Vict., ch. 45. In 1911, England, as a result of its adherence to the Berne Convention, went to life plus 50. (The 1908 Berlin Berne Convention had stated a desire for a life plus 50 term, but that term did not become a requirement until the 1948 Brussels Convention) .
^^ An exception was provided for so-called "Section 12" works: unpublished works that were typically performed and not sold in copies, such as motion pictures and speeches. Although the statute'