Congress to Vote to Freeze Public Domain

     I wish to thank David Pierce for his posting and to join in urging opposition to the proposal to extend the period of copyright protection. I have written to the Senators from my state as well as to Senator Hatch and Representatives Gingrich and Hyde. A copy of my letter to them appears below, in the hope that it may stimulate others to write.

     I rarely take part in political causes, but this one is important and the proposed extension is, in my opinion, flagrantly wrong. At the time of the hearings on this issue before the Copyright Office, I filed a Comment in opposition in which I was joined by 34 other copyright law professors. That Comment has since been published at 16 European Intellectual Property Review, No. 12 (December 1994), at page 531. I would be happy to fax or mail anyone a copy of that comment, the gist of which I attempt to summarize in my legislative letters. I could also attempt to send it through email, but I've not had 100% success at sending WordPerfect files in that mode.

     I suspect the chances are slim that this special-interest legislation can be derailed, but the opposition to the special provision for West Publishing a few weeks ago may give some hope. Please consider joining in the effort.

Dennis S. Karjala
Professor of Law, Arizona State University dennis.karjala[_at_]asu.edu
602-965-4010
602-965-2427 (fax)

 Re: Proposed Extension of Copyright Protection Period (S. 483)

Dear _____

     I write to urge your opposition to the proposed extension of the copyright protection period by an additional twenty years.

     At the time the Copyright Office held hearings on this issue in 1993, I hurriedly drafted a Comment in opposition to the proposal. (I had been on sabbatical in Europe during the previous year and therefore learned about the proposal only shortly before the deadline for the submission of comments.) Notwithstanding the compressed time frame, a limited circulation of the Comment among law professors active in copyright research and teaching resulted in a total of thirty-five signatories. In fact, among the people I approached, only one declined to sign because of disagreement with the merits of the Comment. I might add that when I discuss this issue with my students, and indeed with just about anybody else, the reaction is uniformly one of opposition to the extension. (Many people think the current period is too long.) I enclose a copy of the Comment to the Copyright Office, which has since been published in the European Intellectual Property Review.

     The gist of the Comment is that copyright protection is a balance between an incentive for authors to create desirable new works and the public interest in a large and vibrant public domain from which later authors can extract materials for new creative works. It is implausible that an additional twenty years of protection--already life of the author plus fifty years--will provide any further incentive than the current term. Consequently, the proposed extension would bring about a reduction of the public domain without a corresponding public benefit.

     The Comment directly addresses the supposed prejudice United States authors will suffer in Europe were the United States not to follow the Europeans to the extended term (pages 535-36). Representative Moorhead, who introduced the extension legislation in the House (HR 989), has been quoted as saying, "If Congress does not extend to Americans the same copyright protection afforded their counterparts in Europe, American creators will have 20 years less protection than their European counterparts -- 20 years during which Europeans will not be paying Americans for their copyrighted works." 49 BNA Patent, Trademark & Copyright Journal 498, February 23, 1995 (emphasis added). In fact, it is not American creators who will lose, because these creators will already have been dead for fifty years. Admittedly, some American copyright owners lose when works to which they hold copyrights fall into the public domain, but that is the very purpose of the public domain and our constitutional concept of intellectual property protection for a limited term. The very same works that supposedly suffer prejudice in Europe will also be unprotected here in the United States, precisely because we want current authors to have access to a rich and diverse cultural tradition on which to base new works.

     I urge you to read our Comment and to take into consideration that the general public interest that is underrepresented in the legislative process. This is a wonderful opportunity to serve the general public. The proposed extension does not favor authors or creators. It in fact restricts them in favor of current copyright owners, who may not even be distantly related to the original creator and who will already have reaped economic rewards from the works they own for a period of roughly seventy-five years. The passage of this bill would constitute a serious and permanent debasement of the public domain in favor of special interests.

     Please feel free to contact me if I can be of any assistance in this matter. Thank you very much for consideration of my thoughts.

                                   Sincerely yours,



                                   Dennis S. Karjala
                                   Professor of Law


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