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)

356 get 70 years, and under the MFN principle of TRIPS, that would help set a trend to harmonize toward our 75-year term, but I can't guarantee that is what will happen. Now, if we move unilaterally to 95 years for works made for hire, magnitude of the existing divergences will obviously increase. Even if we stay with 75 years for works made for hire, disharmony will prevail at the margins. Why? Well, on the one hand, the United States will give 75 years of protection to many productions that obtain only 50 in the European Union. On the other hand, the European Union may continue to give some works by recognizable, identifiable employee authors a life-plus-70 term over there, while we might treat those works as entitled to only 75 years of protection over here. Of course, this outcome depends on how courts actually apply this new 70-year term for legal persons. All this leads us to the rule of the shorter term, which is allowed by the Berne Convention and mandated by the EC directive. European countries must apply the rule of shorter term. Now, to the extent that some employee works obtain only 75 years in the United States, they might be cut back over there under the rule of the shorter term to 75 or 50 years, as the case may be. As I said, I hope these cases will diminish. I hope that more and more employee works originating on both sides will simply end up with 70 years, of protection over there, but I can't guarantee it. I can guarantee that U.S. corporate producers of computer programs, sound recordings, films, and television broadcasts should expect to be cut back to 50 years under the EC directive as a matter of course. The proper response to this is for the United States to adopt a version of the rule of the shorter term. This would enable the United States to apply reciprocity in these and other cases where U.S. law exceeded the minimum standard, but the law of the foreign creator's state gave less than we did. My written statement contains a word of caution in this regard. Some time in the future we may hear that the shorter-term rule, under the EC directive, conflicts with the MFN principle of the TRIPS Agreement. There are now at least two commentators who take this position. I do not necessarily share this view but it is open to some doubt in the long run. In the meanwhile, as long as Europe has such a rule and uses it, we should have one and use it too. All this suggests that we should encourage the Europeans to amplify their new-found interest in the copyrightable works of legal entities. We should press them, to give all legal persons at least 70 years, if not 75 years of protection, whether these productions happen to fall under copyrights or under their neighboring rights laws. Having said this, however I simply do not see how a 95-year term for U.S. corporate creations furthers the cause of harmonization, and I do agree with those critics who find that 95 years is excessive on the merits. A 95-year incentive is not needed to stimulate investment in the cultural industries, and its social costs for research and educational users alone would greatly exceed any benefits to society. In contrast, I do agree in principle with Bill Patry. I believe that a much stronger case can be made for prolonging the basic term of protection afforded true authors and artists to life-plus-70 years.