Re: Fate of U.S. Bill to Extend Term of

Lloyd J. Jassin writes:
>
> If the pending bill [extending the copyright terms] passes both houses,
> it would bring U.S. Copyright law into conformity with the EU. I
> believe failure to enact the bill would have serious trade implications
> for the U.S., which now enjoys a significant foreign surplus in
> copyrighted works.
>
> Under the rule of the shorter term that governs relations between the
> U.S. and E.U., copyright protection is conferred for the shorter of
> life + 70 years, or the term of copyright in the country of origin.
> Consequently, if U.S. laws are not amended, U.S. authors and creators,
> and their business partners, will have 20 years less protection overseas
> than works created by E.U. creators.

     Works that are affected by a retroactively extended copyright term are those about to go into the public domain, which is to say works first published in the 1920's. Consequently, it is incorrect to say that "U.S. authors and creators" will have less protection overseas. The authors and creators in question are long since dead. It is the current owners of the copyrights in these works who will have less protection, which is a very different matter. Current authors and creators are, in fact, seriously HARMED by extension, because so many works that would otherwise serve as building blocks will be delayed for 20 years from entering the public domain. Disney is quite happy to take a public domain story like Snow White and base a film on it without paying anyone any royalties. Disney should therefore be willing to let its particular expression of that story go into the public domain after it has had a chance to make a fair profit. 75 years is long enough to make a fair profit. Santa Claus was once the creation of somebody and is now, quite properly, in the public domain. Mickey Mouse should be joining him there so everyone could make creative use of what has become a common cultural icon. In fact, that might be just what is needed to insure that Disney remains as creative as it has been in the past--forcing Disney to continue to create new and interesting characters instead of resting on its laurels.

     Moreover, it is not the failure of the United States to extend our copyright terms that cause U.S. copyright owners to "suffer" in Europe. It is Europe's discriminatory action in adopting a mandatory rule of the shorter term. Berne does not require the rule of the shorter term, and the United States has never adopted it. Consequently, many works have remained protected in the U.S. after falling into the public domain elsewhere. Those interested in trade fairness should be petitioning Europe to stop its discriminatory policy against foreign works rather than distorting our intellectual property principles to gain a windfall advantage for the owners of those (relatively) few copyrights from the 1920's and 1930's that retain significant economic value. If Europe adopted a direct welfare measure that discriminated against Americans in Europe by denying payments to any foreign resident in Europe unless the foreigner's home country provided reciprocal benefits to Europeans, would "unfairness" to Americans resident in Europe be accepted as a basis for our adopting such a welfare measure without evaluating its domestic costs and benefits? Very doubtful. Well, copyright welfare in the form of the extended terms on existing works is no different.

     Finally, extending our copyright terms to insure that U.S. copyright owners join their European counterparts in European royalties means that we here in the United States must continue paying them royalties, too (not to mention the royalties we must continue paying to European copyright owners on works that otherwise would have entered the public domain). It stands to reason that the United States is a greater user of U.S. works than is Europe. No one, to my knowledge, has hard data on the question (which one would think Congress would demand before leaping into action on this specialinterest  legislation), but if, for example, we make four times the use of U.S. works as Europeans make of U.S. works, it means that Americans must pay an extra $4 for every $1 of increased royalties U.S. copyright owners will get from Europe, plus whatever increased royalties Americans will have to pay to European copyright owners. So, the oft-asserted but completely undemonstrated "trade benefits" accruing from extension would come at a high direct out-of-pocket cost, in addition to the even higher cost in lost works--that is, works that do not get created at all because the transaction costs of negotiating copyright permissions on so many old works are too high. So-called "harmonization," too, is a complete red herring. The bills would NOT harmonize even our terms with those of Europe, let alone any of the other major differences between our copyright law and that of Europe (like fair use).

     The proposed copyright term extensions are a travesty that, if adopted into law, will become a tragedy. They are not based on the public interest but rather on private greed. Only the technical complexity of the issue and the diffuse nature of the public harm allows such proposals to move through the Congress essentially without public debate. The bills died in the last Congress, but not, unfortunately, because of their complete lack of merit. They will be back in the next Congress. The time to begin organized opposition is NOW.

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 Thu Nov 28 1996 - 02:39:56 GMT