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)

686 Page 2 duced to produce more popular films like *The Lion King* based on the speculative (and at best minimal) increase in present value of a revenue stream that might go on for 95 rather than 75 years. (Indeed, Disney might not have been so quick to create the Lion King and the Little Mermaid had it not been so worried about the imminent passage of Mickey Mouse into the public domain.) What is certain, however, is that such an extension of the copyright term would seriously hinder the creative activities of future as well as current authors. Consequently, the only reasonable conclusion is that the increased term would impose a heavy cost on the pubUc--in the form of higher royalties and an impoverished public domain without any countervailing public benefit in the form of increased authorship incentives. Indeed, if incentives to production were the basis for the proposed ertension, there would be no point in applying it to copyrights in existing works. These works, by definition, have already been produced. Yet, if the extension were purely prospective (i.e., applicable only to new works), we could be certain that support for it would wither rapidly. Thus, the real issue is the continued protection of *old* works-not those that will enter the public domain 50 (or 70) years from now but rather those due to enter the public domain •today*. These works were originally published in 1920 (works published before 1978 have a flat 75-year copyright rather than the current life + 50 for individual authors). At that time, the law afforded a maximum of 56 years of copyright protection. This period was expanded to 75 years in 1976, and now the descendants and assignees of these authors want yet another 20 years. The very small portion of these works that have retained economic value have been producing royalties for a full 75 years. In order to continue the royalty stream for those few copyright owners, the extension means that *all* works published after 1920 will remain outside the public domain for an extra 20 years. As a result, current authors who wish to make use of *any* work from this period, such as historians or biographers, will need to engage in complex negotiations to be able to do so. Faced with the complexities of tracking down and obtaining permission from all those who by now may have a partial interest in the copyright, a hapless historian will be tempted to pick a subject that poses fewer obstacles and annoyances. One argument made in favor of the extended term is that it would track the countries of the European Union, which now have a life + 70 year term. 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 perpetual copyright protection, but that would be no reason for us to do the same with Mark Twain or Emily Dickinson. The European copyright tradition 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. The concept of a 'limited* term of copyright protection is based on the notion that we *want* works to enter the pubUc domain and become part of the common cultural heritage. We believe that the author's descendants have had enough time to enjoy the revenue flow still produced by the (relatively few) works that continue to have significant economic value 50 years after the author's death. And if these works should be freely available here, they should be freely available everywhere, so that creative artists throughout the world can base new works upon them for the benefit of the consuming publics both in the United States and abroad. This, after all, is the goal of supplying copyright protection in the first place. In this context, the notion of international 'liarmonization" simply obfuscates the real issue: There is no tension here between Europe and the United States. The tension, rather, in both Europe and the United States, is between the heirs and assignees of copyrights in old works versus the interests of today's general public in lower prices and a greater supply of new works. The European Union has resolved the tension in favor of the owners of old copyrights. We should rather favor the general public. Moreover, the bills pending before Congress are not really aimed at harmonizing United States and -2