Copyright Extension

Martin Perlberger writes:
>
> While I don't favor extending the 50-year term as a matter of principle,
> I understand that this is predicated largely on Germany's 70-year term
> already in effect and the EU's intention to follow suit.

     One of the arguments given by the proponents of extension, indeed, is the need for "harmonization" with Europe. I have argued at length in previous postings that this argument is fallacious. First, the extensions as proposed do not harmonize the terms at all: Works for hire, to the extent they are recognized in Europe, are protected there only for 70 years (less than the 75 we recognize NOW). To the extent they are not recognized in Europe, works for hire are protected for life of the individual author plus 70 years (although, of course, the copyright will invariably have been transferred to the employer--without any termination rights--so this is not a notion that protects individual authors). This period in Europe has no relation to our proposed 95-year period (except that both are unduly long). Moreover, the transition provisions from our 1909 Act will continue to cause disharmony between the U.S. and Europe for decades to come (75 or 95 years from publication, as opposed to a term measured by the life of the author).

     Second, and most important, no one has shown that failure to harmonize the terms is or will be a source of any significant problem. Europe itself has partially rejected harmonization by adopting a mandatory "rule of the shorter term." The failure to protect U.S. works in Europe for the same period that European works are protected there does, indeed, result in less cash in the pockets of owners of old U.S. copyrights. That, however, is a beneficial result of the "disharmony." It means that CURRENT authors, both in the U.S. and in Europe, can freely use these old works for the creation of new works for the benefit of all, including most especially the current author of the new derivative work. If current U.S. authors are the most productive, as is arguably the case today in view of our favorable balance of trade in current works, the supposed "disharmony" will work a net benefit for U.S. authors (as opposed to the owners of old U.S. copyrights, who may or may not even be related to the original creative author).

     In short, the increased copyright term in Europe provides no legitimate ground for extending the term here. Enactment of this legislation would impose substantial costs on the United States general public without supplying any public benefit. It would provide a windfall to the heirs and assignees of authors long since deceased, at the expense of the general public, and impair the ability of living authors to build on the cultural legacy of the past. In following a European model of regulation and rigidity, it would hinder overall United States competitiveness in international markets, where the United States is currently at its most powerful. This is not, in fact, a conflict between Europe and the United States. The real conflict, in both Europe and the United States, is between the interest of the public in a richer public domain and the desires of copyright owners (who may or may not be relatives of authors) to control economic exploitation of the copyright-protected works that remain in their hands. That Europe has resolved the conflict one way does not mean that we should blindly follow suit.

Dennis S. Karjala
Professor of Law
Arizona State University
Tempe, Arizona 85287
602-965-4010
602-965-2427 (fax)
dennis.karjala[_at_]asu.edu Received on Tue Mar 19 1996 - 22:25:28 GMT