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)

577 years after the death of the creator, which ever comes later. This provision covers all unpublished manuscripts, diaries, correspondence, etc., no matter when created— even hundreds of years ago. It covers, for example, the correspondence of Thomas Jefierson and that of ordinary Americans who wrote to Jefferson. The canons of scholarly research require responsible biographers, historians, and others engaged in historical research to draw upon and quote from unpublished primary source materials. They do so both to bring the past alive and to persuade readers and scholars that their reconstruction of the past is accurate. Congress has recognized the value of making such material available to scholars and the public by sponsoring its collection and publication by the National Historical Records and Publications Commission and other federal agencies. When Congress extended statutory federal protection to such work in the Copyright Act of 1976, it reinforced historians' ability to quote such unpublished material by subjecting it to fair use. Previously, unpublished material was protected by "common-law copyright," which did not recognize fair use. Although historians quoted such material by longstanding custom, they and their publishers bore the remote risk that whoever owned the copyright might object. Despite Congress's intention to subject unpublished work to the same fair-use criteria as published material under the Copyright Act of 1976 (see Senate Report No. 473, 94th Congress, 2d Session, 1 18-19; House Report No. 1476, 94th Congress, 2d Session, 134-36), the courts have narrowly restriaed the &ir use of such material, in an effort to protect the value of as-yet unpubUshed literary manuscripts such as President Ford's memoirs and J.D. Salinger's letters. [See Harper & Row, Publishers v. Nation Enterprises, 471 U.S. 539 (1985) and Salinger v. Random House, Inc. and Ian Hamilton, 811 F.2d 90 (2d Cir.)]. An unintended consequence has been to jeopardize the quotation of unpublished sources in historical works. Publishers have become increasingly nervous about adhering to the traditional custom of quoting such material. There is a danger that owners of unpublished material of Uttle intrinsic value might seek statutory damages for unauthorized quotation. Such a development would have a disastrous effect on the ability of those engaged in historical scholarship to quote traditional .unpublished sources, since it is impossible to secure permission to quote from all the possible heirs to the copyright in the unpublished correspondence, diaries, and similar productions of ordinary people long deceased. Historians and the public can tolerate this anomalous situation for the relatively brief span of another seven and one-half years. However, extending this situation for a further ten years dramatically increases the risks. Therefore, we urge the Committee not to substitute December 3 1, 2012 for December 31, 2002. If other proposed changes to the Copyright Act are accepted, the Act would then provide protection for unpublished work until December 31, 2002 or seventy years after the death of the creator, whichever comes later. Adhering to the current alternative expiration date will not affect any living creator nor the hdrs of any creator who has passed away in the last fifty-three years. Their copyrights will still be protected to December 3 1 , 2012 or beyond. But adhering to the present alternative expiration date will secure the ability of historians and others doing historical research to continue to educate and entertain the American public according to the traditional canons of historical writing. We thank you for this opportunity to present written testimony for your consideration.