[Senate Report 104-315]
[From the U.S. Government Publishing Office]



                                                       Calendar No. 491
104th Congress                                                   Report
                                 SENATE

 2d Session                                                     104-315
_______________________________________________________________________


 
                  COPYRIGHT TERM EXTENSION ACT OF 1996

                                _______
                                

                 July 10, 1996.--Ordered to be printed

_______________________________________________________________________


Mr. Hatch, from the Committee on the Judiciary, submitted the following

                              R E P O R T

                             together with

                     ADDITIONAL AND MINORITY VIEWS

                         [To accompany S. 483]

     The Committee on the Judiciary, to which was referred the 
bill (S. 483) to amend the provisions of title 17, United 
States Code, with respect to the duration of copyright, and for 
other purposes, having considered the same, reports favorably 
thereon, with an amendment in the nature of a substitute, and 
recommends that the bill, as amended, do pass.

                                CONTENTS

                                                                   Page
  I. Purpose..........................................................3
 II. Legislative history..............................................3
III. Discussion.......................................................6
 IV. Vote of the committee...........................................19
  V. Section-by-section analysis.....................................20
 VI. Cost estimate...................................................23
VII. Regulatory impact statement.....................................24
VIII.Additional views of Mr. Leahy...................................25

 IX. Additional views of Messrs. Simon and Kennedy...................27
  X. Minority views of Mr. Brown.....................................29
 XI. Minority views of Mr. Kohl......................................37
XII. Changes in existing law.........................................39

    The amendment is as follows:
    Strike all after the enacting clause and insert in lieu 
thereof the following:

SECTION 1. SHORT TITLE.

     This Act may be cited as the ``Copyright Term Extension Act of 
1996''.

SEC. 2. DURATION OF COPYRIGHT PROVISIONS.

     (a) Clarification of Library Exemption of Exclusive Rights.--
Section 108 of title 17, United States Code, is amended--
           (1) by redesignating subsection (h) as subsection (i); and
           (2) by inserting after subsection (g) the following:
     ``(h)(1) Notwithstanding any other limitation in this title, for 
purposes of this section, during the last 20 years of any term of a 
copyright of a published work, a library, archives, or nonprofit 
educational institution may reproduce or distribute a copy or a 
phonorecord of such work, or portions thereof, for purposes of 
preservation, scholarship, teaching, or research, if the library, 
archives or nonprofit educational institution has first determined, on 
the basis of a reasonable investigation of reasonably available 
sources, that the work--
           ``(A) is not subject to normal commercial exploitation; and
           ``(B) cannot be obtained at a reasonable price.
     ``(2) No reproduction or distribution under this subsection is 
authorized if the copyright owner or its agent provides notice to the 
Copyright Office that the condition in paragraph (1)(A) or the 
condition in paragraph (1)(B) does not apply.''.
     (b) Preemption With Respect to Other Laws.--Section 301(c) of 
title 17, United States Code, is amended by striking ``February 15, 
2047'' each place it appears and inserting ``February 15, 2067''.
     (c) Duration of Copyright: Works Created On or After January 1, 
1978.--Section 302 of title 17, United States Code, is amended--
          (1) in subsection (a) by striking ``fifty'' and inserting 
        ``70'';
          (2) in subsection (b) by striking ``fifty'' and inserting 
        ``70'';
          (3) in subsection (c) in the first sentence--
                   (A) by striking ``seventy-five'' and inserting 
                ``95''; and
                   (B) by striking ``one hundred'' and inserting 
                ``120''; and
          (4) in subsection (e) in the first sentence--
                   (A) by striking ``seventy-five'' and inserting 
                ``95'';
                  (B) by striking ``one hundred'' and inserting 
                ``120''; and
                  (C) by striking ``fifty'' each place it appears and 
                inserting ``70''.
    (d) Duration of Copyright: Works Created but Not Published or 
Copyrighted Before January 1, 1978.--Section 303 of title 17, United 
States Code, is amended in the second sentence by striking ``December 
31, 2027'' and inserting ``December 31, 2047''.
    (e) Duration of Copyright: Subsisting Copyrights.--
          (1) Section 304 of title 17, United States Coded, is 
        amended--
                  (A) in subsection (a)--
                          (i) in paragraph (1)--
                                  (I) in subparagraph (B) by striking 
                                ``47'' and inserting ``67''; and
                                  (II) in subparagraph (C) by striking 
                                ``47'' and inserting ``67'';
                          (ii) in paragraph (2)--
                                  (I) in subparagraph (A) by striking 
                                ``47'' and inserting ``67''; and
                                  (II) in subparagraph (B) by striking 
                                ``47'' and inserting ``67'' and
                          (iii) in paragraph (3)--
                                  (I) in subparagraph (A)(i) by 
                                striking ``47'' and inserting ``67''; 
                                and
                                  (II) in subparagraph (B) by striking 
                                ``47'' and inserting ``67''.
                  (B) by amending subsection (b) to read as follows:
    ``(b) Copyrights in Their Renewal Term at the Time of the Effective 
Date of the Copyright Term Extension Act of 1996.--Any copyright still 
in its renewal term at the time that the Copyright Term Extension Act 
of 1996 becomes effective shall have a copyright term of 95 years from 
the date copyright was originally secured.'';
                  (C) in subsection (c)(4)(A) in the first sentence by 
                inserting ``or, in the case of a termination under 
                subsection (d), within the five-year period specified 
                by subsection (d)(2),'' after ``specified by clause (3) 
                of this subsection,'' and
                  (D) by adding at the end the following new 
                subsection:
    ``(d) Termination Rights Provided in Subsection (c) Which have 
Expired On or Before the Effective Date of the Copyright Term Extension 
Act of 1996.--In the case of any copyright other than a work made for 
hire, subsisting in its renewal term on the effective date of the 
Copyright Term Extension Act of 1996 for which the termination right 
provided in subsection (c) has expired by such date, where the author 
or owner of the termination right has not previously exercised such 
termination right, the exclusive or nonexclusive grant of a transfer or 
license of the renewal copyright or any right under it, executed before 
January 1, 1978, by any of the persons designated in subsection 
(a)(1)(C) of this section, other than by will, is subject to 
termination under the following conditions:
          ``(1) The conditions specified in subsection (c)(1), (2), 
        (4), (5), and (6) of this section apply to terminations of the 
        last 20 years of copyright term as provided by the amendments 
        made by the Copyright Term Extension Act of 1996.
          ``(2) Termination of the grant may be effected at any time 
        during a period of 5 years beginning at the end of 75 years 
        from the date copyright was originally secured.''.
          (2) Section 102 of the Copyright Renewal Act of 1992 (Public 
        Law 102-307; 106 Stat. 266; 17 U.S.C. 304 note) is amended--
                  (A) in subsection (c)--
                          (i) by striking ``47'' and inserting ``67'';
                          (ii) by striking ``(as amended by subsection 
                        (a) of this section)''; and
                          (iii) by striking ``effective date of this 
                        section'' each place it appears and inserting 
                        ``effective date of the Copyright Term 
                        Extension Act of 1995''; and
                  (B) in subsection (g)(2) in the second sentence by 
                inserting before the period the following: ``, except 
                each reference to forty-seven years in such provisions 
                shall be deemed to be 67 years''.

SEC. 3. EFFECTIVE DATE.

    This Act and the amendments made by this Act shall take effect on 
the date of the enactment of this Act.

                               I. Purpose

    The purpose of the bill is to ensure adequate copyright 
protection for American works in foreign nations and the 
continued economic benefits of a healthy surplus balance of 
trade in the exploitation of copyrighted works. The bill 
accomplishes these goals by extending the current U.S. 
copyright term for an additional 20 years. Such an extension 
will provide significant trade benefits by substantially 
harmonizing U.S. copyright law to that of the European Union 
while ensuring fair compensation for American creators who 
deserve to benefit fully from the exploitation of their works. 
Moreover, by stimulating the creation of new works and 
providing enhanced economic incentives to preserve existing 
works, such an extension will enhance the long-term volume, 
vitality, and accessibility of the public domain.

                        II. Legislative History

    The basis for protection of creative works under our 
current copyright law is rooted in the U.S. Constitution, which 
explicitly grants Congress the power ``to promote the progress 
of science and useful arts, by securing for limited times to 
authors and inventors the exclusive right to their respective 
writings and discoveries.'' 1 Pursuant to this authority, 
the First Congress enacted the first Copyright Act in 
1790,2 which established a fixed term of copyright 
protection for published works based on the date the author 
filed with the clerk of the U.S. District Court and, under 
later versions of the statute, with the Library of Congress. 
This fixed term of protection formed the foundation of our 
Nation's copyright law for nearly two centuries, surviving 
comprehensive revisions of the Copyright Act in 1831, 1870, and 
1909. In each of these revisions, Congress has incrementally 
extended the basic term of copyright protection to ensure that 
American authors and their dependents receive the fair economic 
benefits from their works. 3
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    \1\ U.S. Const. art. I, sec. 8, cl. 8.
    \2\ Act of May 31, 1790, 1st Cong., 2d sess., 1 Stat. 124.
    \3\ In 1790, the basic term of protection was 14 years from the 
date of filing, with the possibility of renewal for an additional 14 
years. Id. In 1831, Congress extended the initial period of protection 
to 28 years, thereby providing for a maximum term of protection of 42 
years. Act of Feb. 3, 1831, 21st Cong., 2d sess., 4 Stat. 436. In 1909, 
the renewal term was extended to 28 years, and the critical date from 
which the term was measured was changed to the date of publication, 
thus creating a maximum term of protection of 56 years from 
publication. Act of Mar. 4, 1909, 60th Cong., 2d sess., 35 Stat. 1075.
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    Early drafts of the 1909 legislation proposed the adoption 
of a term of protection based on the life of the author, rather 
than a fixed term of years. A basic term of protection equal to 
the life of the author plus 50 years was recommended for the 
members of the Berne Convention for the Protection of Literary 
and Artistic Works (Berne Convention) in the Act of Berlin of 
November 13, 1908, and quickly gained favor internationally. As 
international acceptance of the life-plus-50 term grew, efforts 
to reform the U.S. term of protection intensified and, by 1964, 
the working drafts of copyright revision legislation had 
adopted a basic term of life-plus-50 for most works. 4
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    \4\ Preliminary Draft for Revised U.S. Copyright Law: Discussions 
and Comments on the Draft, House Committee on the Judiciary, 88th 
Cong., 2d sess., Copyright Law Revision Part 3, 19-20 (Committee Print 
1964).
---------------------------------------------------------------------------
    Ultimately, with the enactment of the Copyright Act of 
1976,5 Congress fundamentally altered the way in which the 
term of protection was calculated. Citing the inadequacy of the 
then-current 56-year copyright term to provide meaningful 
assurance of a fair economic return for authors and their 
dependents, the need for a clear, discernable method for 
measurement of copyright term, the advantages of uniformity 
with a majority of foreign laws, and the possibility of future 
U.S. adherence to the Berne Convention, Congress adopted a 
basic term of copyright protection equal to the life of the 
author plus 50 years.6 Works created prior to January 1, 
1978 (the date the Act went into effect), were protected for a 
maximum of 75 years from the date of publication or 100 years 
from creation, whichever is less.
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    \5\ Public Law 94-553, 94th Cong., 2d sess., 90 Stat. 2541.
    \6\ See H. Rept. 1476, 94th Cong., 2d sess., at 135 (1976).
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    As noted, the standard adopted in the 1976 Act was the then 
prevailing international standard of protection. It became 
mandatory for members of the Berne Convention with the adoption 
of the Act of Brussels of June 26, 1948, and by 1976 had been 
adopted by a substantial majority of foreign nations.7 The 
standard is also now applicable to the members of the World 
Trade Organization through the implementation of the Agreement 
on the Trade Related Aspects of Intellectual Property Rights 
(TRIP's).8
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    \7\ S. Rept. 473, 94th Cong., 1st Sess. 116-119 (1975).
    \8\ Final Act Embodying the Results of the Uruguay Round of 
Multilateral Trade Negotiations, Annex 1C, Agreement on Trade Related 
Aspects of Intellectual Property, art. 9(1) (15 Apr. 1994). The TRIP's 
agreement was implemented in the U.S. on Dec. 8, 1994. Uruguay Round 
Agreements Act, Public Law 103-465, 108 Stat. 4809 (1994).
---------------------------------------------------------------------------
    On October 29, 1993, the European Union (EU) issued a 
directive to its member states to harmonize their copyright 
laws by adopting a term of protection equal to the life of the 
author plus 70 years.9 Under the EU Directive, member 
states are to apply the ``rule of the shorter term'' to 
countries outside the EU.10 Thus, copyrighted works from 
nonmember countries will enjoy only the protection granted 
under the domestic laws of those countries if their respective 
terms of protection are less than the life-plus-70 standard 
adopted by the EU. In other words, works copyrighted in the 
United States would remain protected only for the lifetime of 
the author plus 50 years.
---------------------------------------------------------------------------
    \9\ Council Directive 93/98, 1993 O.J. (L 290/9) [hereinafter EU 
Directive on Term].
    \10\ Id., at art. 7.
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    In order to safeguard the Nation's economic interests and 
those of America's creators in the protection of copyrighted 
works abroad, Senator Hatch, Senator Feinstein and Senator 
Thompson introduced the Copyright Term Extension Act of 1995, 
S. 483, on March 2, 1995, in the 104th Congress.11 The 
Committee held hearings on September 20, 1995. Bruce A. Lehman, 
Assistant Secretary of Commerce and Commissioner of Patents and 
Trademarks, and Marybeth Peters, Register of Copyrights and 
Associate Librarian of Congress for Copyright Services, 
testified on behalf of the Administration. The Committee also 
heard testimony from Jack Valenti, president and chief 
executive officer, Motion Picture Association of America; Alan 
Menken, composer, lyricist, and representative of AmSong; 
Patrick Alger, president, Nashville Songwriters Association; 
and Prof. Peter A. Jaszi, American University, Washington 
College of Law. In addition, written statements were received 
for the record from Senator Christopher J. Dodd, the American 
Society of Composers, Authors and Publishers (ASCAP), the 
National Music Publishing Association Inc. (NMPA), the 
Songwriters Guild of America, the Graphic Artists Guild, the 
National Writers Union, the Coalition of Creators and Copyright 
Owners, Author Services Inc., the Midwest Travel Writers 
Association, Donaldson Publishing Co., the American Library 
Association, the American Film Heritage Association, the 
Society for Cinema Studies, Lawrence Technology, Bob Dylan Jr., 
Don Henley, Carlos Santana, Stephen Sondheim, Mike Stoller, E. 
Randol Schoenberg, Ginny Mancini, Lisa M. Brownlee, Prof. 
William Patry, and Prof. Dennis Karjala, writing on behalf of 
45 intellectual property law professors.
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    \11\ S. 483, 104th Cong., 1st sess. (1995). Senators Alan Simpson, 
Barbara Boxer, Spencer Abraham, and Howell Heflin joined as cosponsors 
of the bill. Senator Leahy subsequently joined as a cosponsor of the 
amended version of S. 483, as adopted by the full Committee on May 23, 
1996.
---------------------------------------------------------------------------
    On May 16 and May 23, 1996, the Judiciary Committee met in 
executive session to consider the bill. An amendment was 
offered by Senator Brown and Senator Thurmond on music 
licensing. After extended debate on the amendment, the Chairman 
reiterated his desire to pass the bill without nongermane 
amendments and promised to address the music licensing issue on 
its own merits at a later time. A motion by the Chairman to 
table the Brown-Thurmond amendment was then adopted by a 
rollcall vote of 12 yeas to 6 nays. A second amendment by 
Senator Brown to deny any extension of copyright term to 
corporate copyright owners was defeated by a rollcall vote of 4 
yeas to 12 nays. The Committee then approved the bill, with an 
amendment in the nature of a substitute, proposed by Senator 
Hatch, by a rollcall vote of 15 yeas to 3 nays. Embodied in the 
substitute amendment were four changes to the original text of 
the bill. The first was the elimination of a provision that 
would have extended for an additional 10 years the 25-year 
minimum term of statutory protection guaranteed by section 303 
of the Copyright Act for works created, but not published, 
before January 1, 1978. The second was the addition of an 
amendment to section 304(c) of the Copyright Act to provide a 
limited revived power of termination for original creators 
whose right to terminate prior copyright transfers under that 
section has expired. The third was the addition of a provision 
to amend section 108 of the Copyright Act to create a narrow 
exemption from copyright infringement during the extended term 
for qualified libraries, archives and nonprofit educational 
institutions engaged in specified activities. The final change 
was the addition of an additional amendment to section 304(b) 
of the Copyright Act to clarify that the extended term would 
apply only to works currently under copyright and is not 
intended to revive copyright protection for works already in 
the public domain.

                            III. Discussion

                               Background

    With the adoption of the 1976 Copyright Act, Congress 
fundamentally altered the way in which the U.S. calculates its 
term of copyright protection by adopting a basic term of 
protection equal to the life of the author plus 50 years. As 
indicated in the foregoing discussion on the legislative 
history of the bill, this term represented the prevailing 
international standard of copyright protection, mandated by the 
Berne Copyright Union since 1948 and adopted by a large 
majority of nations worldwide. The adoption of a minimum term 
of protection based on the life of the author was one of the 
principal changes in U.S. copyright law that paved the way for 
the United States' adherence to the Berne Convention in 1989. 
Among the reasons stated for the adoption of the life-plus-50 
term were the need to conform the U.S. copyright term with the 
prevailing worldwide standard, the insufficiency of the then-
current term to ensure a fair economic return for authors and 
their dependents, and the failure of the U.S. copyright term to 
keep pace with the substantially increased commercial life of 
creative works resulting from the tremendous growth in 
communications media.12
---------------------------------------------------------------------------
     12 H. Rept. 1476, supra note 6, at 135.
---------------------------------------------------------------------------
    In the 20 years since the passage of the 1976 Copyright 
Act, developments on both the domestic and international fronts 
have led to further consideration of the sufficiency of the 
life-plus-50 term. Among these developments is the effect of 
demographic trends (such as the increasing life-span of the 
average American and the trend toward rearing children later in 
life) on the effectiveness of the current copyright term in 
affording adequate protection for America's creators and their 
heirs. In addition, unprecedented growth in technology, 
including the advent of digital media and the development of 
the National Information Infrastructure (NII) and the Global 
Information Infrastructure (GII), have dramatically enhanced 
the marketable life of creative works, as well as the potential 
for increased incentives to preserve existing works. Perhaps 
most importantly, however, is the international movement 
towards extending copyright protection for an additional 20 
years, including the adoption of the EU Directive in October 
1993, which requires member countries to adopt a term of 
protection equal to life of the author plus 70 years.13 
Failure on the part of the United States to provide equal 
protection for works in the United States will result in a loss 
for American creators and the economy of the benefits of 20 
years of international copyright protection that they might 
otherwise have. In light of these considerations, the Committee 
believes the current U.S. copyright term of protection is no 
longer sufficient to protect adequately our Nation's economic 
interests in copyrighted works, and more importantly, the 
interests of American authors and their families.
---------------------------------------------------------------------------
    \13\ EU Directive on Term, supra note 9.
---------------------------------------------------------------------------

         international developments in copyright term extension

    Thirty five years ago, the Permanent Committee of the Berne 
Union began to reexamine the sufficiency of the life-plus-50-
year term of protection. In the intervening years, the 
inadequacy of the life-plus-50-year term to protect creators in 
an increasingly competitive global marketplace has become more 
apparent, leading to actions by several nations to increase the 
duration of copyright. Most significantly, the nations of the 
European Union issued a directive from the Council of the 
European Communities in 1993, committing the member countries 
to implement a term of protection equal to the life of the 
author plus 70 years by July 1, 1995.14
---------------------------------------------------------------------------
     14 Id.
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    To date, Belgium, Denmark, Finland, Germany, Greece, 
Ireland, Italy, Spain, Sweden, and the United Kingdom have all 
complied with the EU Directive. Furthermore, Portugal has 
recognized a perpetual term of protection for much of this 
century. Other countries are currently in the process of 
bringing their laws into compliance. In addition, as the 
Register of Copyrights, Marybeth Peters, testified before the 
Committee, countries seeking to join the EU, such as Poland, 
Hungary, Turkey, the Czech Republic, and Bulgaria, are likely 
to amend their copyright laws to comply with the EU 
Directive.15 Ms. Peters also stated that there is some 
indication that other countries adopting new copyright laws 
will adopt a term of life-plus-70, as Slovenia has recently 
done.16
---------------------------------------------------------------------------
    \15\ Statement of Marybeth Peters, Register of Copyrights and 
Associate Librarian of Congress for Copyright Services, hearings on S. 
483 before the Senate Committee on the Judiciary, 104th Cong., 1st 
sess. 11 (1995).
    \16\ Id, at 11-12.
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    The Committee has long recognized the value of uniformity 
of international copyright protection and the United States' 
role as a leader in the world market for copyrighted works. In 
its report on the 1976 Copyright Act, the Committee noted:

          Copyrighted works move across national borders faster 
        and more easily than virtually any other economic 
        commodity, and with the techniques now in common use 
        this movement has in many cases become instantaneous 
        and effortless. The need to conform the duration of 
        U.S. copyright to that prevalent throughout the rest of 
        the world is increasingly pressing in order to provide 
        certainty and simplicity in international business 
        dealings. Even more important, a change in the basis of 
        our copyright term would place the United States in the 
        forefront of the international copyright 
        community.17
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    \17\ S. Rept. 473, supra note 7, at 118.

This statement is equally appropriate in the Committee's 
consideration of S. 483, as reflected in Ms. Peter's testimony 
---------------------------------------------------------------------------
before the Committee in 1995:

          The Copyright Office believes harmonization of the 
        world's copyright laws is imperative if there is to be 
        an orderly exploitation of copyrighted works. In the 
        past, copyright owners refrained from entering certain 
        markets where their works were not protected. In the 
        age of the information society, markets are global and 
        harmonization of national copyright laws is, therefore, 
        crucial. There has been a distinctive trend towards 
        harmonization over the last two decades; however, the 
        development of the global information infrastructure 
        makes it possible to transmit copyrighted works 
        directly to individuals throughout the world and has 
        increased pressure for more rapid harmonization. * * * 
        It does appear that at some point in the future the 
        standard will be life plus 70. The question is at what 
        point does the United States move to this term. * * * 
        As a leading creator and exporter of copyrighted works, 
        the United States should not wait until it is forced to 
        increase the term, rather it should set an example for 
        other countries.18
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    \18\ Statement of Marybeth Peters, supra note 15, at 29, 35.

Bruce Lehman, Assistant Secretary of Commerce and Commissioner 
of Patents and Trademarks, expressed the Administration's view 
that ``[i]ncreasing the copyright term may also help to 
reaffirm the role of the United States as a world leader in 
copyright protection.'' 19
---------------------------------------------------------------------------
    \19\ Statement of Bruce A. Lehman, Assistant Secretary of Commerce 
and Commissioner of Patents and Trademarks, hearings on S. 483 before 
the Senate Committee on the Judiciary, 104th Cong., 1st sess. 6 (1995).
---------------------------------------------------------------------------
    The Committee recognizes the increasingly global nature of 
the market for U.S. copyrighted works. Uniformity of copyright 
laws is enormously important to facilitate the free flow of 
copyrighted works between markets and to ensure the greatest 
possible exploitation of the commercial value of these works in 
world markets for the benefit of U.S. copyright owners and 
their dependents. Indeed, in an age where the information 
superhighway offers widespread distribution of copyrighted 
works to almost anywhere in the world at limited costs, 
harmonization of copyright laws is imperative to the 
international protection of those works and to the assurance of 
their continued availability. Accordingly, the Committee agrees 
that the United States should assert its position as a world 
leader in the protection of intellectual property by adopting 
what is increasingly becoming viewed as the future standard of 
international copyright protection.

         the berne convention and the rule of the shorter term

    Equally important as the move toward harmonization of our 
copyright laws with those of our trading partners are the 
economic implications of an extension of the U.S. copyright 
term. As members of the Berne Convention, the United States and 
all EU countries are required to provide a minimum term of 
copyright protection equal to the life of the author plus 50 
years. Any country, however, may elect to provide a longer term 
of protection, as Belgium, Denmark, Finland, Germany, Greece, 
Ireland, Italy, Spain, Sweden, the United Kingdom, and others 
have already done, and as all other EU member countries are 
required to do under the EU Directive. Of critical importance 
to American creators, however, is the fact that the EU 
Directive mandates the application of the ``rule of the shorter 
term'' 20 as allowed by the Berne Convention.21 This 
rule permits countries with longer terms to limit protection of 
foreign works to the shorter term of protection granted in the 
country of origin.
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    \20\ EU Directive on Term, supra note 9, at art. 7.
    \21\ Berne Convention for the Protection of Literary and Artistic 
Works (Sept. 9, 1886, revised in 1908, 1928, 1948, 1967, 1971) art. 
7(8) (Paris text) [hereinafter Berne Convention].
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    America exports more copyrighted intellectual property than 
any country in the world, a huge percentage of it to nations of 
the European Union. In fact, intellectual property is our 
second largest export, with U.S. copyright industries 
accounting for roughly $40 billion in foreign sales in 
1994.22 For nearly a decade, U.S. copyright industries 
have grown at twice the rate of the overall economy. And, 
according to 1993 estimates, copyright industries account for 
some 5.7 percent of the total gross domestic product. 
Furthermore, copyright industries are creating American jobs at 
twice the rate of other industries, with the number of U.S. 
workers employed by core copyright industries more than 
doubling between 1977 and 1993. Today, these core copyright 
industries contribute more to the economy and employ more 
workers than any single manufacturing sector, accounting for 
more than 5 percent of the total U.S. workforce.23
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    \22\ Statement of Bruce Lehman, supra note 19, at 4.
    \23\ Stephen E. Siwek & Harold Furchtgott-Roth, Economists 
Incorporated, Copyright Industries in the U.S. Economy: 1977-1993 iv 
(1995).
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    Largely, the stellar performance of U.S. copyright 
industries is the result of strong intellectual property 
protection. Moreover, well-founded agreements with our 
international trading partners have helped to secure the 
dominance of U.S. copyrighted works in the global market. The 
United States stands to lose a significant part of its 
international trading advantage if our copyright laws do not 
keep pace with emerging international standards. Given the 
mandated application of the ``rule of the shorter term'' under 
the EU Directive, American works will fall into the public 
domain 20 years before those of our European trading partners, 
undercutting our international trading position and depriving 
copyright owners of two decades of income they might otherwise 
have. Similar consequences will result in those countries with 
longer terms outside the European Union that choose to exercise 
the ``rule of the shorter term'' under the Berne Convention and 
the Universal Copyright Convention. Enactment of S. 483 will 
ensure fair compensation for the American creators whose 
efforts fuel the intellectual property sector of our economy by 
allowing American copyright owners to benefit to the fullest 
extent from foreign uses and will, at the same time, ensure 
that our trading partners do not get a free ride from their use 
of our intellectual property.

            protecting copyright for authors and their heirs

    The copyright status of an author's work is by no means 
solely an academic issue, or one related simply to our trade 
balance with Europe. Rather, such a creative work is of 
legitimate proprietary interest to the families of the authors. 
This proprietary interest in copyrighted works is provided for 
by the Copyright Act, pursuant to the Constitution, for the 
purpose of giving creators an incentive to advance knowledge 
and culture by allowing them to reap the economic benefit of 
their creations for ``limited times.'' 24 The question of 
exactly what term of protection most appropriately reflects a 
``limited time'' as envisioned by the Founders has been debated 
since the enactment of the first Copyright Act in 1790, and is 
likely to continue to be debated into the foreseeable future. 
Congress has long accepted the general principal, however, that 
copyright should protect the author and at least one generation 
of heirs. Indeed, among the justifications the Committee cited 
for adopting the life-plus-50 term in 1976 was the 
insufficiency of the 56-year fixed term to ensure fair economic 
returns for American creators and their dependents.25 
Furthermore, both the Berne Convention and the EU Directive 
have accepted the standard that copyright should protect the 
author and two succeeding generations.26 Based on the 
numerous viewpoints presented to the Committee as it has 
considered these issues, the Committee concludes that the 
majority of American creators anticipate that their copyrights 
will serve as important sources of income for their children 
and through them into the succeeding generation. The Committee 
believes that this general anticipation of familial benefit is 
consistent with both the role of copyrights in promoting 
creativity and the constitutionally based constraint that such 
rights be conferred for ``limited times.''
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    \24\ U.S. Const. art. I, sec. 8, cl. 8.
    \25\ S. Rept. 473, supra note 7, at 117.
    \26\ Statement of Marybeth Peters, supra note 15, at 21. See also 
WIPO, Guide to the Berne Convention sec. 7.4 (1978) (``It is not merely 
by chance that fifty years was chosen. Most countries have felt it fair 
and right that the average lifetime of an author and his direct 
descendants should be covered, i.e., three generations.'').
---------------------------------------------------------------------------
    Among the primary justifications asserted for the adoption 
of the life-plus-70 term under the EU Directive was the 
conclusion that the life-plus-50 term is no longer sufficient 
to protect two generations of an author's heirs.27 In the 
United States, where works created before January 1, 1978, are 
still afforded a fixed term of protection for 75 years from the 
date of publication, the current term has proven increasingly 
inadequate to protect some works for even one generation of 
heirs as parents are living longer and having children later in 
life. For example, the famous American composer Irving Berlin, 
who wrote such famous musical works as ``A Pretty Girl is Like 
a Melody,'' ``What I Will Do,'' and ``Alexander's Rag Time 
Band,'' began publishing in 1907, and died in 1989, at an age 
of 101. Not only did he survive the 75-year fixed term of 
protection in some of his own works, even for his most famous 
works, his heirs will benefit from only a few years of 
protection. In an increasing number of cases, widows and 
widowers of American authors are outliving the 75-year term of 
copyright protection in their spouses' works.
---------------------------------------------------------------------------
    \27\ EU Directive on Term, supra note 9, at Recital (5).
---------------------------------------------------------------------------
    The Register of Copyrights informed the Committee that even 
for post-1978 works, which are afforded the basic life-plus-50 
term of protection, the current term has proven insufficient in 
many cases to protect a single generation of heirs.28 For 
example, Walter Donaldson, who will forever be linked via his 
songs to the extraordinary success of the 1927 film ``The Jazz 
Singer,'' composed many of his most famous works when he was in 
his twenties and died in 1947 while in his fifties. Were the 
current life-plus-50 term applied at that time, all of his 
works would fall into the public domain at the end of 1997. 
Nevertheless, Ellen Donaldson, the composer's daughter, remains 
extremely active in publishing and exploiting her father's 
music and in protecting his copyrights. Like the children of 
composers such as Richard Rogers, Irving Berlin, Richard 
Whiting, Hoagy Carmichael, and many others, her legitimate 
interest in her father's copyrights can be expected to continue 
for decades, and most certainly for the next 20 years.
---------------------------------------------------------------------------
    \28\ Testimony of Marybeth Peters, supra note 15, at 22 (``With 
respect to works created on or after January 1, 1978, a longer term may 
be necessary to safeguard even one succeeding generation'').
---------------------------------------------------------------------------
    In order to reflect more accurately Congress' intent and 
the expectation of America's creators that the copyright term 
will provide protection for the lifetime of the author and at 
least one generation of heirs, the bill extends copyright 
protection for an additional 20 years for both existing and 
future works.
    The Committee is aware of the criticism of the proposed 
extension by those who suggest that it marks a step down the 
road of perpetual copyright protection. The Committee is 
unswayed by this argument for three reasons. First, the 
greatest obstacle to a perpetual term of copyright protection 
is the U.S. Constitution, which clearly precludes Congress from 
granting unlimited protection for copyrighted works. Second, 
the emerging international standard, to which the bill purports 
to adhere, and the movement of international copyright law in 
general are not toward perpetual protection, but to a fixed 
term of protection based on the death of the author. Third, the 
principal behind the U.S. copyright term--that it protect the 
author and at least one generation of heirs--remains unchanged 
by the bill. The 20-year extension proposed by the bill merely 
modifies the length of protection in nominal terms to reflect 
the scientific and demographic changes that have rendered the 
life-plus-50 term insufficient to meet this aim.

                     preserving creative incentives

    As the foregoing discussion indicates, the primary purpose 
of a proprietary interest in copyrighted works that is 
descendible from authors to their children and even 
grandchildren is to form a strong creative incentive for the 
advancement of knowledge and culture in the United States. The 
nature of copyright requires that these proprietary interests 
be balanced with the interests of the public at large in 
accessing and building upon those works. For this reason, 
intellectual property is the only form of property whose 
ownership rights are limited to a period of years, after which 
the entire bundle of rights is given as a legacy to the public 
at large.
    In balancing these competing interests, Congress has sought 
to ensure that creators are afforded ample opportunity to 
exploit their works throughout the course of the works' 
marketable lives, thus maximizing the return on creative 
investment and strengthening incentives to creativity. 
Accordingly, among the primary reasons noted by the Committee 
for the extension of copyright term under the 1976 Copyright 
Act was the fact that ``[t]he tremendous growth in 
communications media has substantially lengthened the 
commercial life of a great many works.'' 29 Since 1976, 
the likelihood that a work will remain highly profitable beyond 
the current term of copyright protection has increased 
significantly as the rate of technological advancement in 
communications and electronic media has continued to 
accelerate, particularly with the advent of digital media and 
the explosive growth of the National Information Infrastructure 
(NII) and the Global Information Infrastructure (GII). As the 
Register of Copyrights noted before the Committee in 1995:
---------------------------------------------------------------------------
     29 S. Rept. 473, supra note 7, at 117.

          Technological developments clearly have extended the 
        commercial life of copyrighted works. Examples include 
        video cassettes, which have given new life to movies 
        and television series, expanded cable television, 
        satellite delivery, which promise up to 500 channels 
        thereby creating a demand for content, the advent of 
        multimedia, which also is creating a demand for 
        content, and international networks such as Internet, 
        i.e., the global information highway. The question is 
        who should benefit from these increased commercial 
        uses? 30
---------------------------------------------------------------------------
     30 Statement of Marybeth Peters, supra note 15, at 24.

    By extending the copyright term for an additional 20 years 
for all existing and future works, the bill allows American 
authors to benefit from these increased opportunities for 
commercial exploitation of their works. The Committee believes 
that the basic functions of copyright protection are best 
served by the accrual of the benefits of increased commercial 
life to the creator for two reasons. First, the promise of 
additional income will increase existing incentives to create 
new and derivative works. The fact that the promise of 
additional income is not realized for many years down the road 
does not diminish this increased creative incentive. One of the 
reasons why people exert themselves to earn money or acquire 
property is to leave a legacy to their children and 
grandchildren. Furthermore, it is common for authors to choose 
to exploit their works by transferring their rights in whole or 
in part to someone else. In so doing, they are able to bargain 
for the present value of the projected income from commercial 
exploitation of the work over the course of the entire 
copyright term. The additional value of a longer term will, 
therefore, be reflected in the money received by the author for 
the transfer of his or her copyright, leading again to 
increased incentives to create.
    Second, extended protection for existing works will provide 
added income with which to subsidize the creation of new works. 
This is particularly important in the case of corporate 
copyright owners, such as motion picture studios and 
publishers, who rely on the income from enduring works to 
finance the production of marginal works and those involving 
greater risks (i.e., works by young or emerging authors). In 
either case, whether the benefit accrues to individual creators 
or corporate copyright owners, the ultimate beneficiary is the 
public domain, which will be greatly enriched by the added 
influx of creative works over the long term.

                     preservation of existing works

    In addition to strengthening existing incentives to create 
new and derivative works, the 20-year extension of copyright 
protection will provide the important collateral benefit of 
creating incentives to preserve existing works. Until now, 
copyrighted works have been fixed in perishable media, such as 
records, film, audiotape, paper, or canvas. Copies or 
reproductions of these works usually suffer significant 
degradation of quality. The digital revolution offers a 
solution to the difficulties of film, video, and audio 
preservation, and offers exciting possibilities for storage and 
dissemination of other types of works as well. However, to 
transfer such works into a digital format costs a great deal of 
money--money which must come either from public or private 
sources.
    Many of the works we wish to preserve, including the motion 
pictures and musical works from the 1920's and 1930's that form 
such an extraordinary part of our Nation's cultural heritage, 
will soon fall into the public domain. Once in the public 
domain, the exclusive right to reproduce these works will no 
longer be protected. Because digital formatting enables the 
creation of perfect reproductions at little or no cost, there 
is a tremendous disincentive to investing the huge sums of 
money necessary to transfer these works to a digital format, 
absent some assurance of an adequate return on that investment. 
By extending the current copyright term for works that have not 
yet fallen into the public domain, including the term for 
works-made-for-hire (e.g., motion pictures), the bill will 
create such an assurance by providing copyright owners at least 
20 years to recoup their investment. More important, the 
American public will benefit from having these cultural 
treasures available in an easily reproducible and indelible 
format.

                    anonymous and pseudonymous works

    The bill also amends current law to grant an additional 20 
years of protection to anonymous and pseudonymous works. While 
such works currently have a copyright term that endures for 75 
years from the year of first publication, or for 100 years from 
the year of creation, whichever expires first, the bill extends 
that protection to 95 and 120 years respectively.
    In addition to providing the benefits of increased creative 
incentives and greater protection for authors and their heirs, 
the Committee notes that extending the current copyright term 
for anonymous and pseudonymous works also advances our ongoing 
efforts to fulfill our obligations under the Berne Convention. 
Article 7(3) of the Berne Convention mandates that such works 
be protected for at least 50 years after they are first made 
lawfully available to the public. Since the Stockholm Act of 
July 14, 1967, however, the Berne Convention has recognized the 
need for an outer limit on the protection of anonymous and 
pseudonymous works by providing that, ``the countries of the 
Union shall not be required to protect anonymous or 
pseudonymous works in respect of which it is reasonable to 
presume that their author has been dead for fifty years.'' 
31 It has been argued that the American provision setting 
an outer limit of 100 years of protection for these works is in 
violation of the Berne Convention, at least with respect to 
works whose country of origin is not the United States.32 
By increasing the maximum protection from its current 100 years 
to a period of 120 years, the bill will at least serve to 
reduce greatly the number of potential situations in which our 
law may operate in violation of the Berne Convention. This for 
the reason that it is far more reasonable to presume that an 
author who created a work 120 years ago may have been deceased 
for 50 years, than it is to presume that the author of a work 
created only 100 years ago may have been deceased for at least 
50 years.
---------------------------------------------------------------------------
     31 Berne Convention, art. 7(3).
     32 See Melville B. Nimmer & David Nimmer, Nimmer on Copyright 
sec. 9.01[D] (1989).
---------------------------------------------------------------------------

                           unpublished works

    With the adoption of the 1976 Copyright Act, Congress for 
the first time limited copyright protection for unpublished 
works. Section 302 of the Copyright Act provides that 
unpublished works will be afforded a basic term of protection 
equal to the life of the author plus 50 years for most works 
and a maximum term of 100 years from the date the work is 
created for anonymous works, pseudonymous works, and works made 
for hire. For works created, but not published or fallen into 
the public domain prior to January 1, 1978, however, section 
303 guarantees a minimum term of protection of 25 years. For 
such works, copyright subsists beginning on January 1, 1978, 
and will in no case expire before December 31, 2002. As an 
incentive to publication, those works that are subsequently 
published on or before that date are protected for an 
additional 25 years, or until December 31, 2027, for a minimum 
of 50 years of Federal copyright protection.
    As originally introduced, the bill proposed extending the 
minimum term of protection for unpublished works created on or 
before January 1, 1978, for an additional 10 years. The 
Committee subsequently received testimony from the Register of 
Copyrights 33 and additional input from scholars and 
library representatives that many of these works exist in the 
forms of letters, photographs, diaries, manuscripts, and 
similar materials. Because unpublished works were afforded 
perpetual copyright protection by common law until 1978, many 
date back to the 1800's or even earlier. As the creators' heirs 
are often difficult to identify and nearly impossible to 
locate--even for more modern works--clearing the rights in 
these works is extraordinarily cumbersome. As a result, many of 
these works are being stored, out of the public's reach, by 
libraries, archives, and historical societies who are preparing 
to make them available to the public when they enter the public 
domain in 2003.
---------------------------------------------------------------------------
    \33\ See Statement of Marybeth Peters, supra note 15, at 25.
---------------------------------------------------------------------------
    The Committee agrees with the Register and those from other 
libraries, archives, and historical societies that the public 
will not realize sufficient benefit from extended protection 
for these older unpublished works to justify precluding public 
access to those works beyond 2003. Accordingly, the bill, as 
reported, maintains the current 25-year minimum term of 
protection for unpublished works created before 1978. In order 
to strengthen current incentives to make these works publicly 
available, however, the bill extends copyright protection for 
an additional 20 years, if the works are published before 
December 31, 2002. Therefore, for works created, but not 
published before January 1, 1978, which are subsequently 
published on or before December 31, 2002, copyright protection 
would be guaranteed until December 31, 2047, a minimum of 70 
years.

                          Works Made for Hire

    Section 302(c) of the Copyright Act protects works made for 
hire for 75 years from first publication or 100 years from 
creation, whichever is less. The bill extends this term of 
protection by 20 years, to the shorter of 95 years from 
publication or 120 years from creation. The Committee has heard 
criticism from some who have suggested that extending the term 
of protection for works made for hire is not necessary to 
harmonize the U.S. term with that of the European Union because 
the European term of protection for works made for hire is 70 
years, 5 years shorter than the existing U.S. term. They argue 
that a 20-year extension for works made for hire would only 
serve to exacerbate further the discrepancies between the 
American and European terms.
    The Committee believes this argument to be fundamentally 
flawed for two reasons. First, with few exceptions, the 
countries of the European Union do not recognize the work-made-
for-hire doctrine. The closest corollary is the European 
doctrine of ``collective works or works created by a legal 
person,'' which generally affords protection for 70 years from 
the date a work is made publicly available, or 70 years from 
creation if the work is never made publicly available.34 
However, in many, if not most cases, this category does not 
include works that U.S. law protects as works made for hire. 
For example, in Germany, which has implemented the EU Directive 
35 and which does not recognize the work-made-for-hire 
doctrine, the basic term of life-plus-70 applies to newspaper, 
magazine, and journal articles where the author is identified, 
regardless of whether the article was prepared in the scope of 
the author's employment.36 Similar protection is applied 
to books and musical works. Where these works are prepared as 
works made for hire, they are protected in the United States 
for the shorter of 75 years from publication or 100 years from 
creation. In many such cases, the European life-plus-70 term 
would provide greater protection than the fixed 75-year term in 
the United States. Thus, the application of the rule of the 
shorter term will result in less protection for these works in 
the countries of the European Union than they might otherwise 
have.37
---------------------------------------------------------------------------
    \34\ See EU Directive on Term, supra note 9, at art. 1.4.
    \35\ Third law modifying the law on authors' rights of June 23, 
1995, Bundesgesetzblatt 1995, Teil I, Nr. 32.
    \36\ This is consistent with Articles 1.1-1.4 of the EU Directive, 
which collectively provide authority for adoption of a term of 70 years 
from publication for collective works and works made by a legal person, 
but provide for a life-plus-70 term where the natural author is 
identified in the versions of the work made publicly available.
    \37\ For example, where a 50-year-old author publishes an article 
written in the scope of her employment and subsequently dies at age 75, 
the EU term of protection would be 95-years (life-plus-50 years). 
However, in applying the ``rule of the shorter term,'' Germany will 
apply the U.S. term of 75 years, providing 20 years less protection 
than would otherwise be available. Those authors whose works are 
published at a younger age or who live longer will face an even greater 
loss of copyright protection under the ``rule of the shorter term.'' In 
either case, the 95-year term of protection proposed by the bill will 
compare more favorably with the longer European copyright term and will 
lead to increased protection for American works.
---------------------------------------------------------------------------
    Even in the one instance in which Germany does recognize 
the work-made-for-hire doctrine (computer programs), the term 
of copyright protection is equal to 70 years from the death of 
the employee-author if that author is identifiable.38 Once 
again, the 95-year term proposed by the bill will likely 
compare more favorably with the current German term for such 
works and will lead to greater protection of U.S. works. This 
is extremely important considering that American-produced 
software accounts for 70 percent of the world market and that 
exports constitute half of the software industry's total annual 
output.39
---------------------------------------------------------------------------
    \38\ Law on Copyright and Neighboring Rights of Sept. 9, 1965, as 
amended through 1995, art. 69b, art. 66(1).
    \39\ Business Software Alliance, 1996.
---------------------------------------------------------------------------
    The provisions of the EU Directive regarding motion 
pictures are based on French law, which also does not recognize 
the work-made-for-hire doctrine. Under the EU Directive, 
``cinematographic or audiovisual works'' are to be protected 
for 70 years after the death of the last of four principal 
contributors--the principal director, the author of the 
screenplay, the author of the dialogue, and the composer of the 
music created specifically for the work.40 Assuming this 
term is applied by the countries of the European Union to 
American motion pictures, this term would be significantly 
longer than the 75-year term of protection provided in the 
United States for works made for hire. In fact, because it is 
pegged to the life of the longest living of four individuals, 
the European term is arguably longer than the basic life-plus-
70 term.
---------------------------------------------------------------------------
     40 EU Directive on Term, supra note 9, at art 2.
---------------------------------------------------------------------------
    Once again, intellectual property is among our Nation's 
largest export sectors, with the European Union forming one of 
our most prolific markets. Many of our most successful works 
are protected in the United States as works made for hire, such 
as motion pictures, TV programs, and home video, which alone 
provide a surplus balance of trade of more than $4 
billion.41 As illustrated by the previous examples, these 
works will often be protected by the general life-plus-70 or 
similar term prescribed by the EU Directive. By extending the 
20-year term to works made for hire, the bill ensures the 
fullest protection for these works abroad and the greatest 
available return on investment for the U.S. economy and 
American creators.
---------------------------------------------------------------------------
     41 Statement of Jack Valenti, president and chief executive 
officer, Motion Picture Association of America, hearings on S. 483 
before the Senate Committee on the Judiciary, 104th Cong., 1st sess. 3 
(1995).
---------------------------------------------------------------------------
    The second flaw in the argument that an extension of 
copyright protection for works made for hire is unnecessary for 
harmonization purposes is the fact that it fails to recognize 
the additional justifications for extending the copyright term. 
As discussed above, technological developments have 
significantly lengthened the commercial life of creative works. 
This is particularly true for many of the works protected in 
the United States as works made for hire. For reasons already 
stated, the Committee believes the Nation's interests are best 
served by allowing the creators of these works, whether they be 
individuals or a so-called ``corporate authors,'' to receive 
the benefit of the increased marketability of their creations.
    Some who oppose the extension of copyright term for 
``corporate authors,'' and more precisely for corporate 
copyright owners in general, suggest that a portion of the 
additional revenue generated for these copyright owners by 
virtue of the extended term should be used to subsidize public 
funding for the arts. The Committee notes that some members of 
the Committee have signed a letter requesting that the Register 
of Copyrights and the Director of Congressional Research of the 
Library of Congress identify ways to raise money, by way of the 
copyright process, for a Federal fund to benefit the public 
arts and humanities communities.

                           Termination Rights

    Section 304(c) of the Copyright Act sets forth several 
conditions for the termination of the grant of a transfer or 
license of the renewal copyright or any right under it, with 
respect to copyrights subsisting in either its first or renewal 
term on January 1, 1978, other than a copyright in a work made 
for hire. One of those conditions is that termination be 
effected by the serving of advance written notice upon the 
grantee or the grantee's successor in title. Such notice must 
state the effective date of termination, which must be either 
within 5 years after January 1, 1978, or within a period of 5 
years beginning 56 years from the date the copyright was 
originally secured, whichever is later. This so-called ``power 
of termination'' was created by the 1976 Copyright Act to allow 
original creators the opportunity to bargain for the benefit of 
the additional 19 years of copyright protection provided by 
that Act.
    Termination rights are a limited exception to the general 
principle embodied in the Copyright Act that copyrights are 
fully assignable by contract. Just as such an exception was 
appropriate to allow original creators to benefit from the 
newly created property right under the 1976 Act, the Committee 
believes that original authors or their dependents should have 
the opportunity to bargain for the rights provided by the 20-
year copyright term extension in the bill. For most authors, 
this result will be realized under the current termination 
provisions of 17 U.S.C. section 304(c). This is true because 
termination may be effected under section 304(c) at any time 
within a 5-year window, beginning 56 years from the date of 
publication. For the authors of the vast majority of works, 
this 5-year window of opportunity has not yet passed, leaving 
them free to bargain for the benefit of both the 19-year 
extension under the 1976 Act and the 20-year extension under S. 
483. However, for authors of a much smaller number of works 
(i.e., works published between 1921 and 1934) this window has 
already closed. Some of these authors exercised their 
termination right while the window was still open. According to 
the Copyright Office, however, the actual number of authors who 
did so is relatively small.42 Therefore, the Committee 
believes that the creation of a revived power of termination 
for individuals who did not previously exercise their now-
expired termination right under section 304(c) is both 
consistent with the intent of the 1976 Act and appropriate as a 
matter of basic fairness to the individual creators who our 
copyright law purports to protect.
---------------------------------------------------------------------------
    \42\ According to the Copyright Office, only 566 notices of 
termination were recorded between November 1993 and May 1995. All but 
five of these notices were for musical works. Statement of Marybeth 
Peters, supra note 15, 31 n.90.
---------------------------------------------------------------------------
    Accordingly, the bill adds a new subsection (d) to section 
304, which provides that in the case of a subsisting copyright, 
other than a work made for hire, where the termination right 
has expired and the author/owner of the termination right has 
not exercised such right prior to the effective date of this 
Act, the author/owner may still achieve termination during a 5-
year period commencing at the end of 75 years from the date the 
copyright was originally secured. With the exception of the 
period in which the termination may be effected, such a 
termination is subject to the same terms and conditions as a 
termination under section 304(c).

   Limited Exemptions for Libraries and Other Non-Profit Institutions

    The Committee is not unaware of the concern that a 20-year 
term extension may not take into account those institutions 
that depend on legal, noncommercial use of protected copyright 
material. Current law permits libraries and archives to make 
limited copies or phonorecords of a work under certain 
circumstances, such as for preservation purposes, or for 
limited nonsystematic uses for patrons, when the ``reproduction 
or distribution is made without any purpose of direct or 
indirect commercial advantage.'' 43
---------------------------------------------------------------------------
    \43\ 17 U.S.C. 108(a)(1) (1992).
---------------------------------------------------------------------------
    The Committee is also cognizant, however, of the competing 
concern of copyright owners, who have expressed their belief 
that noncommercial users often bypass acquiring such works 
through readily available commercial means or can compete with 
the copyright owner's uses. The Committee sought to address 
both of these concerns by amending current copyright law to 
permit qualified libraries, archives, and nonprofit educational 
institutions to reproduce or distribute a copy of a protected 
work in the last 20 years of its term for limited noncommercial 
purposes, that is, for purposes of presentation, scholarship, 
teaching or research, and under certain conditions, including a 
reasonable investigation that a work is neither subject to 
normal commercial exploitation nor obtainable at a reasonable 
price. Furthermore, the legislation provides copyright owners 
an opportunity to notify the Copyright Office when these 
conditions are not met. The Committee recognizes the fact that 
representatives of copyright owners and the nonprofit 
institutions covered by this provision are in the process of 
negotiating mutually agreeable terms that may differ from those 
adopted by the Committee. Should further agreement be reached 
by these parties, it is the intent of the Committee that the 
precise terms of this provision be subject to further 
modification in light of such an agreement.

                      Nonrestoration of copyright

    Several individuals, including the Register of Copyrights, 
suggested to the Committee that the bill, as originally 
introduced, was somewhat ambiguous as to whether an extension 
of copyright term would serve to restore copyright protection 
to works that have recently entered the public domain. It is 
not the Committee's intent that copyright be restored to public 
domain works, and the bill, as reported, is amended to clarify 
this point.

                       IV. Vote of the Committee

    Pursuant to paragraph 7 of rule XXVI of the Standing Rules 
of the Senate, each Committee is to announce the results of 
rollcall votes taken in any meeting of the Committee on any 
measure or amendment. The Senate Judiciary Committee, with a 
quorum present, met on Thursday, May 23, 1996, at 10 a.m., to 
mark up S. 483. The following rollcall votes occurred on 
amendments proposed thereto:
    (1) Motion to table the Brown-Thurmond amendment on music 
licensing. The motion was agreed to by a rollcall vote of 12 
yeas to 6 nays.
        YEAS                          NAYS
Simpson (by proxy)                  Thurmond
Thompson                            Grassley
DeWine                              Specter (by proxy)
Biden (by proxy)                    Brown
Kennedy (by proxy)                  Kyl
Leahy                               Abraham (by proxy)
Heflin (by proxy)
Simon (by proxy)
Kohl (by proxy)
Feinstein
Feingold
Hatch

    (2) Vote on the Brown amendment denying extension to 
``corporate'' copyright owners. Amendment was defeated by a 
rollcall vote of 4 yeas to 12 nays.
        YEAS                          NAYS
Thurmond                            Simpson (by proxy)
Grassley                            Thompson
Brown                               DeWine (by proxy)
Kyl                                 Abraham (by proxy)
                                    Biden (by proxy)
                                    Kennedy (by proxy)
                                    Leahy
                                    Heflin (by proxy)
                                    Simon (by proxy)
                                    Feinstein
                                    Feingold
                                    Hatch

    (3) Motion to favorably report the bill, with an amendment 
in the nature of a substitute. The motion was adopted by a 
rollcall vote of 15 yeas to 3 nays.
        YEAS                          NAYS
Thurmond                            Brown
Simpson (by proxy)                  Kyl
Grassley                            Kohl (by proxy)
Specter (by proxy)
Thompson
DeWine
Abraham (by proxy)
Biden (by proxy)
Kennedy (by proxy)
Leahy
Heflin (by proxy)
Simon (by proxy)
Feinstein
Feingold
Hatch

                     V. Section-by-Section Analysis

                         section 1. short title

    The proposed legislation is entitled the Copyright Term 
Extension Act of 1996.

              section 2. duration of copyright provisions

Section 2(a)--Clarification of library exemption of exclusive rights

    This subsection amends section 108 of the Copyright Act, 
governing limited exemptions from copyright infringement for 
libraries and archives, by redesignating subsection (h) as 
subsection (i) and inserting a new subsection (h). The new 
subsection (h)(1) will allow libraries, archives, and nonprofit 
educational institutions to reproduce and distribute copies of 
works for preservation, scholarship, teaching and research 
during the last 20 years of copyright, if the works are not 
being commercially exploited and cannot be obtained at a 
reasonable price. The new subsection (h)(2) provides that the 
limited exemption does not apply where the copyright owner 
provides notice to the Copyright Office that the conditions 
regarding commercial exploitation and reasonable availability 
have not been met.

Section 2(b)--Preemption with respect to other laws

    This subsection amends section 301(c) of the Copyright Act 
to extend for an additional 20 years the application of common 
law and State statutory protection for sound recordings fixed 
before February 15, 1972. Under section 301, the Federal law 
generally preempts all State and common-law protection of 
copyright with several exceptions, including one for sound 
recordings fixed before February 15, 1972 (the effective date 
of the statute extending Federal copyright protection to sound 
recordings). Because Federal copyright protection applies only 
to sound recordings fixed on or after that date, Federal 
preemption of State statutory and common-law protection of 
sound recordings fixed before February 15, 1972, would result 
in all of these works falling into the public domain. The 
section 301 exception was enacted to ensure a 75-year minimum 
term of copyright protection for these works. By delaying the 
date of Federal Copyright Act preemption of State statutory and 
common-law protection of pre-February 15, 1972, sound 
recordings until February 15, 2067, this subsection extends the 
minimum term of protection for these works by 20 years.

Section 2(c)--Duration of copyright: Works created on or after January 
        1, 1978

    This subsection amends section 302 of the Copyright Act to 
extend the U.S. term of copyright protection by 20 years for 
all works created on or after January 1, 1978. For works in 
general, which currently enjoy protection for the life of the 
author plus 50 additional years under section 301(a), this 
section creates a term equal to the life of the author plus 70 
years. Likewise, for joint works under section 302(b), this 
section extends the current term of protection to the life of 
the last surviving author plus 70 years. For anonymous works, 
pseudonymous works, and works made for hire, which are 
protected the shorter of 75 years from publication or 100 years 
from creation under section 302(c), this subsection extends the 
term to the shorter of 95 years from publication or 120 years 
from the date the work is created.
    This subsection also amends section 302(e) of the Copyright 
Act to extend by 20 years the various dates relating to the 
presumptive death of the author as a complete defense against 
copyright infringement. Whereas current copyright protection is 
generally tied to the life of the author, it is sometimes not 
possible to ascertain whether the author of a work is still 
living, or even to identify the year of death if the author is 
deceased. Section 302(e) provides a complete defense against 
copyright infringement when the work is used more than 75 years 
after publication or 100 years after creation, whichever is 
less, provided the user obtains a certificate from the 
Copyright Office indicating that it has no record to indicate 
whether that person is living or died less than 50 years 
before. This subsection would extend protection of such works 
for an additional 20 years--95 years from publication and 120 
years from creation--as well as base the presumptive death of 
the author on certification by the Copyright Office that it has 
no record to indicate whether the person is living or died less 
than 70 years before, which is 20 years longer than the 50 
years currently provided for in section 302(e).

Section 2(d)--Duration of copyright: Works created but not published or 
        copyrighted before January 1, 1978

    This subsection amends section 303 of the Copyright Act to 
extend the minimum term of copyright protection by 20 years for 
works created but not copyrighted before January 1, 1978, 
provided they are published prior to December 31, 2002. Prior 
to 1978, unpublished works enjoyed perpetual copyright 
protection. Beginning in 1978, however, copyright protection 
for unpublished works was limited to the life of the author 
plus 50 years, or 100 years from creation for anonymous works, 
pseudonymous works, and works made for hire. Under section 303, 
however, works created but not published before January 1, 
1978, are guaranteed protection until at least December 31, 
2002. Works subsequently published before that date are 
guaranteed further protection until December 31, 2027. This 
subsection provides an additional 20 years of protection for 
these subsequently published works by ensuring that copyright 
protection will not expire before December 31, 2047.

Section 2(e)(1)(A)--Duration of copyright: Copyrights in their first 
        term on January 1, 1978

    This subsection amends section 304(a) of the Copyright Act 
to extend the term of protection for works in their first term 
on January 1, 1978, by extending the renewal term from 47 years 
to 67 years. The effect of this amendment is to provide a 
composite term of protection of 95 years from the date of 
publication.

Section 2(e)(1)(B)--Duration of copyright: Copyrights in their renewal 
        term or registered for renewal before January 1, 1978

    This subsection amends section 304(b) of the Copyright Act 
to extend the copyright term of pre-1978 works currently in 
their renewal term from 75 years to 95 years. As amended, this 
section clarifies that the extension applies only to works that 
are currently under copyright protection and is not intended to 
restore copyright protection to works already in the public 
domain.

Section 2(e)(1) (C) and (D)--Termination of transfers and licenses

    These subsections amend section 304(c) of the Copyright Act 
and create a new subsection (d) to provide a revived power of 
termination for individual authors whose right to terminate 
prior transfers and licenses of copyright under section 304(c) 
has expired, provided the author has not previously exercised 
that right. Under section 304(c), an author may terminate a 
prior transfer or license of copyright for any work, other than 
a work made for hire, by serving advance written notice upon 
the grantee or the grantee's successor at least 2, but not more 
than 10, years prior to the effective date of the termination. 
Such termination may be effected at any time within 5 years 
beginning at the end of 56 years from the date of publication. 
The purpose of this termination provision was to afford the 
individual creator the opportunity to bargain for the benefit 
of the 19-year extension provided by the 1976 Copyright Act.
    For most individual creators, the existing power of 
termination under section 304(c) will allow them to terminate 
prior transfers and to bargain for the benefit of both the 
extension under the 1976 Copyright Act and the extension under 
the Copyright Term Extension Act of 1996. For a much smaller 
group of individuals, the 5-year window in which to terminate 
prior transfers under section 304(c) has already expired. Thus, 
these creators are denied the opportunity to reap the benefits 
of the extended term, while the current copyright owners are 
given a 20-year windfall. This subsection amends the existing 
termination provisions under section 304(c) of Copyright Act to 
create a revived window, beginning at the end of the current 
75-year copyright term, in which individual creators or their 
heirs who did not terminate previous transfers or grants prior 
to the expiration of their right of termination under section 
304(c) may bargain for the benefit of the extended term.

Section 2(e)(2)--Copyright Renewal Act revisions

    This subsection makes corresponding amendments to section 
102 of the Copyright Renewal Act of 1992 (Public Law 102-307, 
106 Stat. 266) to reflect the changes made by the Copyright 
Term Extension Act.

                       section 3. effective date

    This Act and the amendments made thereby shall be effective 
on the date of enactment.

                           VI. Cost Estimate

                                     U.S. Congress,
                               Congressional Budget Office,
                                     Washington, DC, June 17, 1996.
Hon. Orrin G. Hatch,
Chairman, Committee on the Judiciary,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
reviewed S. 483, the Copyright Term Extension Act of 1996, as 
ordered reported by the Senate Committee on the Judiciary on 
May 23, 1996. CBO estimates that enacting S. 483 would result 
in no significant cost to the Federal Government. Because 
enactment of this bill would not affect direct spending or 
receipts, pay-as-you-go procedures would not apply.
    S. 483 would extend the copyright term for works created on 
or after January 1, 1978, from life of the author plus 50 years 
after the author's death to life of the author plus 70 years 
after death. The bill would extend most other current 
copyrights for an additional 20 years, including copyrights for 
works by anonymous authors and copyrights for works created 
before January 1, 1978. The original creator of a work often 
sells his or her copyrighted material to other individuals or 
firms. S. 483 would provide the original creator of a work, or 
his or her descendants, with the power to renegotiate the terms 
of a sale to receive compensation for the additional 20 years 
of copyright protection granted under this bill. Finally, the 
bill would authorize libraries and other nonprofit institutions 
to reproduce a copyrighted work for certain purposes and would 
delay the preemption of certain State and common laws.
    If S. 483 were enacted, the Copyright Office would have to 
update its printed materials to reflect the changes in the 
copyright law. The office would insert flyers with the changes 
into most materials and would not need to reprint the materials 
immediately. Based on information from the Copyright Office, 
CBO estimates that updating the printed material would cost 
less than $500,000 over the 1997-2002 period, assuming 
appropriation of the necessary funds. We expect that the bill 
would have no other budgetary impact.
    S. 483 contains no intergovernmental or private-sector 
mandates as defined in Public Law 104-4, and would impose no 
direct costs on state, local, or tribal governments.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Rachel 
Forward.
            Sincerely,
                                         June E. O'Neill, Director.

                    VII. Regulatory Impact Statement

    In compliance with paragraph 11(b)(1), rule XXVI of the 
Standing Rules of the Senate, the Committee, after due 
consideration, concludes that S. 483 will have no significant 
regulatory impact.
                  VIII. ADDITIONAL VIEWS OF MR. LEAHY

    I was not an original sponsor of S. 483 and raised a number 
of questions and concerns that I had with the bill as 
originally introduced at the Judiciary Committee hearing in 
September 1995.
    I spoke of a letter I had received from Prof. Karen Burke 
Lefevre of Vermont and the Rensselaer Polytechnic Institute. 
She expressed reservations, as a researcher and author, that 
Congress not extend the term for unpublished works beyond the 
term set by the 1976 Act. This category of materials is set to 
have its copyrights expire in 2002. They include anonymous 
works and unpublished works of interest to scholars. The 
substitute accommodates these interests and preserves the 
public availability of these materials in 2003. I want to thank 
Marybeth Peters, our Register of Copyrights, for supporting 
this improvement in the bill.
    I also feel strongly that the extension of the copyright 
term should include public benefit, such as the creation of new 
works or benefit to public arts. Senator Dodd, Senator Kennedy, 
and I have been concerned about finding an appropriate way to 
benefit the public from this extension and continue to do so. 
Along these lines, I am delighted that Senators Simpson and 
Brown joined with us in a request to the Copyright Office to 
examine how the extension in this bill will benefit copyright 
industries, authors and the public.
    I am concerned about libraries, educational institutions 
and nonprofits being able to access materials and provide 
access in turn for research, archival, preservation and other 
purposes. The substitute is a step in that direction. The 
copyright industry representatives and library representatives 
have narrowed their differences. I ask for their continued help 
in crafting the best balance possible to create public access 
for noncommercial purposes during the extension period without 
undercutting the value of the copyrights.
    At the hearing I also raised the notion of a new right of 
termination for works where the period of termination in 
current law has already passed and the 20-year extension inures 
to the benefit of a copyright transferee. The substitute 
creates such a right of termination.
    Finally, I frankly admitted at our hearing that I was still 
considering whether there was sufficient justification for 
extending the copyright term for an additional 20 years. At our 
hearing we considered the recent European Union Directive to 
its member countries to provide copyright protection for a term 
of life plus 70 years by July 1, 1995. While many of our 
trading partners did not extend their terms by that date, they 
have acted to do so in the past year.
    I recently received a letter from Bruce A. Lehman, the 
Assistant Secretary of Commerce and Commissioner of Patents and 
Trademarks, in which he reports that Austria, Germany, Greece, 
France, Denmark, Belgium, Ireland, Spain, Italy, and the United 
Kingdom have now complied with the EU Directive on Copyright 
Term. Sweden, Portugal, Finland and the Netherlands apparently 
have legislation pending, as well. With so many of our trading 
partners moving to the longer term but preparing to recognize 
American works for only the shorter term, I believe it is time 
for us to act.
    Given the changes made in S. 483 to accommodate the 
concerns that I raised with the original language and the 
changes in the international setting, I cosponsored the 
Committee substitute at our Judiciary Committee Executive 
Business session.

                                                     Patrick Leahy.
           IX. ADDITIONAL VIEWS OF MESSRS. SIMON AND KENNEDY

    We support the goals of S. 483. The harmonization of the 
U.S. copyright term with that of the European Union will yield 
significant economic benefits to our Nation generally and to 
our creators in particular--benefits which, in turn, will 
stimulate future creativity and eventually lead to a broader 
and richer public domain.
    At the same time, it is important to bear in mind that 
Congress has consistently ensured that the benefits of 
copyright protection flow both to information owners and users. 
In light of these dual policy goals, we continue to be 
concerned about the effects this legislation will have on 
libraries, archives, and other entities engaged in the 
preservation and provision of existing noncommercial works. 
Just as an extended copyright term enriches our creative 
process, so too does continued access by scholars, researchers, 
and teachers to materials that are not being commercially 
exploited. These are the raw materials from which spring the 
commercial works that will generate profits and receive 
protection in the future: the ignored author of today may 
become the Jane Austen or Louisa May Alcott of tomorrow. Thus, 
libraries and other preservationists have a vital role in the 
creative process--a role that in fact stands to benefit 
copyright holders and that must be maintained.
    S. 483 takes substantial steps toward affording such 
protection, creating a so-called ``library exemption'' that 
allows libraries and archives to continue reproducing and 
distributing noncommercial works for purposes of 
``preservation, scholarship, teaching, or research'' during the 
20-year period added to the copyright term by this legislation. 
This exemption, included in S. 483 after extended (but thus far 
unsuccessful) negotiations between the copyright holding 
community and the libraries, is a step in the right direction, 
but only one step, and, as suggested in the Committee Report, 
not a final product that the Committee sought to write into S. 
483 as reported.
    Indeed, there is a real question whether S. 483's exemption 
goes far enough in protecting the important efforts of our 
libraries and archives. Certainly those institutions themselves 
do not think so. For example, they argue that because the 
legislation does not protect libraries' and others' ability to 
display or perform noncommercial works during the additional 
20-year term, scholars' computerized access to creative--and it 
must be repeated, noncommercial--works in the new digital 
universe will be cut off, and educators will be unable to 
promote noncommercial works through public performances.
    One disinterested and expert observer--the Register of 
Copyrights--agrees with them, and has offered her own 
compromise proposal that also would exempt from coverage under 
the additional 20-year term the display and performance of 
noncommercial works by libraries, archives, and schools acting 
as such repositories. The Register was tasked by the chairman 
of the House Subcommittee on Courts and Intellectual Property 
with moderating and overseeing the negotiations discussed 
above, and with making an independent recommendation if the 
negotiations proved fruitless. She has heard the arguments 
supporting all positions. Her already expert opinion on 
intellectual property matters should be given particular weight 
in light of this background.
    There is time before S. 483 reaches the Senate floor for a 
compromise satisfactory to all parties to be reached on the 
library issue. To his credit, the Chairman of the Judiciary 
Committee, Senator Hatch, has expressed a desire to see this 
issue resolved by the parties and has indicated his intention 
to incorporate into S. 483 any agreement that can be reached as 
to the scope of a library exemption, so long as that agreement 
comports with the basic goals of our national copyright policy 
discussed above. We are optimistic that the libraries and the 
copyright community--with an eye toward the recommendations of 
the Register--will reach such an accord. If no such accord can 
be reached, however, we believe the Register of Copyright's 
proposal should be substituted for the ``placeholder'' 
provision that is currently in S. 483. If the parties' own or 
the Register's version of a ``library exemption'' is ultimately 
presented to the full Senate, we will be able to fully support 
a bill that already has much to recommend it.

                                   Ted Kennedy.
                                   Paul Simon.
                     X. MINORITY VIEWS OF MR. BROWN

    The current length of copyright term protection is the life 
of the author plus 50 years. To suggest that the monopoly use 
of copyrights for the creator's life plus 50 years after his 
death is not an adequate incentive to create is absurd. Denying 
open public access to copyrighted works for another 20 years 
will harm academicians, historians, students, musicians, 
writers, and other creators who are inspired by the great 
creative works of the past.
    Copyright law relies on a delicate balance between 
rewarding creators and disseminating works for the public 
benefit. The creators' reward is significant and nearly 
absolute. Creators are granted the rights to monopolize the 
exploitation of their work. However, ``[t]he primary purpose of 
copyright is not to reward the author, but is rather to secure 
`the general benefits derived by the public from the labors of 
the authors.' '' \1\ In the words of the Supreme Court, 
``[c]reative work is to be encouraged and rewarded, but private 
motivation must ultimately serve the cause of promoting broad 
public availability of literature, music, and other arts. The 
immediate effect of our copyright law is to secure a fair 
return for an author's creative labor. But the ultimate aim is, 
by this incentive, to stimulate artistic creativity for the 
general public good.'' \2\
---------------------------------------------------------------------------
    \1\ Melville B. Nimmer and David Nimmer, Nimmer on Copyright 
1.03[A](1996) (quoting Fox Film Corp. v. Doyal, 286 U.S. 123, 127 
(1932)).
    \2\ Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 
(1975).
---------------------------------------------------------------------------
    Before we extend the term of copyright for the fourth time, 
\3\ we bear the burden of justifying any change to that 
delicate balance. In my view, since the reasons which are 
offered for extending the copyright term are both unconvincing 
and unrelated to the public benefit, we have not carried our 
burden to justify the extension.
---------------------------------------------------------------------------
    \3\ The original copyright law of 1790 gave 14 years of protection, 
plus a 14-year term of renewal for a total of 28 years of protection. 
In 1831, the copyright term was changed to 28 years, plus the 14-year 
renewal term, totaling 42 years of protection. In 1908, the term was 
extended again to 28 years plus a 28-year renewal term, for a total of 
56 years of protection. In the 1960's, when valuable works from the 
early part of the century were moving into the public domain, there 
were repeated term extensions, carrying copyrights over from year to 
year until a complete extension was passed in 1976. The 1976 Act 
(effective in 1978) extended the ``old act'' term (for works governed 
by the 1908 Act) another 19 years to make the term 75 years. The 1976 
Act also extended protection to new works created after 1976 for a 
period of life-plus-50 years for individual authors and 75 years for 
corporate creators. Not surprisingly, that 19-year extension was 18 
years ago. Now, we are back to add another twenty years. Congress, at 
the behest of copyright holders, seems willing to increase copyright 
terms ad infinitum.
---------------------------------------------------------------------------

                  S. 483, Copyright Term Extension Act

    This bill proposes a copyright term of life of the author 
plus 70 years. That means the proposed term would be the 
current term--life of the author plus 50 years--plus an 
additional 20 years. Put another way, the monopoly grant could 
extend for six or seven generations. After the author's life, 
he likely would have children and grandchildren. Adding 50 
years to that likely would mean that the author's grandchildren 
are then either parents or grandparents. Adding another 20 
years to that would likely mean that the grandchildren's 
children or grandchildren have children of high school or 
college age.
    To understand how this would apply to current works, look 
at what life-plus-70 years would mean for the next Irving 
Berlin. He wrote ``Alexander's Ragtime Band'' in 1915. He lived 
until 1989. If the proposed new standard of life-plus-70 years 
applied to Berlin, his song, ``Alexander's Ragtime Band'' would 
not be freely available to the public until 2059. The length of 
Berlin's copyright term or monopoly grant would be from 1915 to 
2059, or 144 years from creation. We would thus be denying 
seven generations of Americans the right to freely use the 
song.\4\
---------------------------------------------------------------------------
    \4\ It is worth mentioning in the context of extending the monopoly 
for copyrighted works that the scope of copyright protection is already 
more expansive than most Americans may think. Prior to the 1978 Act, 
the concept of exclusive rights to copyright were defined in terms of 
use for profit. After the 1978 Act, the concept of exclusive use 
includes any public performance of a work, regardless of whether it is 
for profit. Going from a concept of for profit to one of public display 
or performance, and then going from 56 years to life-plus-50-years to 
life-plus-70 years is a startling capture of creative work in a short 
period of time. To illustrate, ``Happy Birthday'' was copyrighted in 
1935 and renewed in 1963 for a monopoly grant through 2010; further, a 
group of waiters singing ``Happy Birthday'' to a restaurant patron 
would constitute a public performance.
---------------------------------------------------------------------------
    Duke Ellington's works from 1921 and later would not be 
freely available to the public until 2016 or later. ``East St. 
Louis Toodle-O,'' written in 1927, would not come out in 2022. 
``Mood Indigo,'' written in 1930, would not see the light of 
day, so to speak, until 2025. George Gershwin's ``Rhapsody in 
Blue,'' written in 1924, would not come out until 2019. ``I Got 
Rhythm,'' written in 1930, would not come out until 2025.
    The majority report tries to justify extending the term of 
copyright for another 20 years on two general grounds: the 
international standard for copyright law and the economic 
incentive to stimulate creativity. The Committee report reveals 
another motivation behind this legislation when it states,

          The additional value of a longer term will, 
        therefore, be reflected in the money received by the 
        author for the transfer of her copyright, leading again 
        to increased incentives to create. * * * [E]xtended 
        protection for existing works will provide added income 
        with which to subsidize the creation of new works. This 
        is particularly important in the case of corporate 
        copyright owners, such as motion picture studios and 
        publishers. * * *

Yet, because this bill vests the extra 20 years of copyright 
protections with the copyright owner instead of the creator, 
the creators do not necessarily receive the money--copyright 
owners (often corporate owners) do. The owners' rights are 
based on contractual transfers that were executed under the 
1908 or 1976 Acts, so when the creators signed away their 
rights, there was no expectation of the extra 20 years. We must 
ask the question: Why we are providing such a corporate 
windfall?

                    The Purported Need to Harmonize

    Supporters of the bill claim we need to harmonize our 
copyright law with the European standard. The majority report 
states that the purpose of copyright term extension is ``to 
ensure adequate protection for American works in foreign 
nations and the continued economic benefits of a healthy 
surplus balance of trade in the exploitation of copyrighted 
works * * * by substantially harmonizing U.S. copyright law to 
that of the European Union.'' However, this stated purpose is 
dubious, since we are fully protected in Europe under current 
law.
    The hue and cry to ``harmonize'' our copyright term would 
have us amend our domestic laws to meet the standards of the 
European Union. We are not a member of the European Union. The 
European Union does not determine our treaty obligations.
    Interestingly, the EU employs the ``rule of the shorter 
term,'' which means that any country that employs a term of 
protection less than the EU term will not enjoy the longer 
protection in EU member-countries.5 The EU rule of the 
shorter term seems inconsistent with the spirit of the Berne 
Convention to promote international cooperation in copyright 
protection. The Berne Convention encourages national 
treatment--that is, treating foreign creators the same as 
national creators.6 The United States does not follow the 
rule of the shorter term with its discriminatory effect on 
other nations since it is such an objectionable trade policy. 
The United States should not be intimidated into changing its 
own copyright laws.
---------------------------------------------------------------------------
     5 Council Directive 7831/93 of 13 July 1993 on Harmonizing 
the Term of Protection of Copyright and Certain Related Rights.
     6 Berne Convention for the Protection of Literary and 
Artistic Work, Paris Text of 1971, art. 5.
---------------------------------------------------------------------------
    Furthermore, even if we did adopt the life-plus-70 years 
standard, we would not be harmonizing our laws with 
international standards. In fact, our international copyright 
obligations are contained in the Berne Convention and the 
United States is in full compliance. The Berne Convention only 
requires life-plus-50 years, which is our current 
standard.7
---------------------------------------------------------------------------
     7 Berne Convention, art. 7.
---------------------------------------------------------------------------
    Contrary to the majority report, if we passed this bill, we 
would be further distancing our laws from EU laws, not 
harmonizing them. To begin with, as the majority report 
acknowledges, not all EU countries have adopted the life-plus-
70 years standard. Second, most EU countries do not recognize 
corporate copyright ownership--that is, works not owned by 
individuals. We do recognize corporate copyright ownership in 
the United States. Those EU countries that do recognize 
corporate copyright ownership provide less protection (70 
years) than the United States does under current law (75 
years). Yet this bill would extend these terms another 20 years 
to provide 95 years of copyright protection. Rather than 
harmonizing American and European copyright terms, this bill 
would widen the differences.
    Harmonization, as a justification for term extension, lost 
much of its force when the Judiciary Committee rejected my 
amendment which proposed harmonizing American and European 
copyright law with respect to corporate ownership.
    Moreover, this bill does not harmonize the American concept 
of copyrights with that of European countries. They typically 
view a copyright as a moral right which gives creators a near 
perpetual monopoly in their work. The American view of 
copyright is much different: we provide creators with a bundle 
of exclusive rights to exploit their work, but only for a 
limited time as required by the U.S. Constitution. Thus, our 
copyright system is more limited, and, if gauged by the trade 
surplus, much more successful.
    The U.S. Copyright and Intellectual Property Law professors 
had this to say about harmonizing our laws with those of 
Europe:

          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.

                   The Purported Incentive To Create

    The majority report offers a second justification for term 
extension, contending that the extra 20 years provides an 
incentive to create. The real incentive here is for corporate 
owners that bought copyrights to lobby Congress for another 20 
years of revenue--not for creators who will be long dead once 
this term extension takes hold.
    Do you know any creator that would fail to create if the 
monopoly grant ran out at life-plus-50 years of protection 
rather than life-plus-70 years? Would Hemingway have produced 
another work if he were guaranteed another 20 years of 
copyright protection? Would Wyeth have painted more? Would 
Sinatra have sang more? This suggestion is ludicrous.
    Second, as much as we may want to, we cannot provide an 
incentive to create something that has already been created! 
This bill would retroactively apply term extension to add 20 
years of protection for works already in existence. 
Furthermore, many of the creators of these prior works are 
dead. No grant of additional time will help them create, but it 
will give the current owners--often corporations--an enormous 
windfall at the expense of consumers.
    Third, in part, the incentive to create comes from the 
public domain works which can inspire, be borrowed from, and 
improved upon. We do not necessarily provide an incentive to 
create by reducing the public domain. This bill puts a 20-year 
moratorium on the public domain. Researchers, academics, 
librarians, historians, and creators rely on the public domain. 
By draining the public domain, we will restrict a portion of 
creativity.
    Fourth, there is no evidence that the current monopoly 
grant of life-plus-50 years is an insufficient incentive. There 
is nothing in the hearing record that suggests extending the 
copyright term will result in more works or higher quality 
works. Indeed, our success as a nation of creators suggests the 
opposite. The majority report observes that copyright term 
extension may provide an incentive to create for corporate 
creators: another 20 years of revenue from current works might, 
for example, subsidize new motion pictures. However, this is 
more a corporate subsidy than an incentive to create.
    Finally, if the purpose of this bill were to reward 
creators as an incentive to create, then the bill should vest 
the extended term to the creator. This bill does not do that. 
It vests the extra 20 years in the copyright owner.
    Extending the term of copyright is inconsistent with the 
American tradition of balancing the interests of creators with 
those of the public--a tradition that has produced perhaps the 
best body of artistic work on earth. But that system, and 
American creators, rely on a rich, prosperous public domain. 
Those who rely on the public domain--like historians, students 
and future creators will be harmed. Walt Disney took the Grimm 
brothers' Snow White out of the public domain and turned it 
into a wonderful movie that generated millions of dollars and 
retold the message of Snow White to many more people all over 
the world. This bill throws a bucket of cold water on such 
recreation.

                       Our Constitutional Charge

    The Constitution charges Congress to strike a balance 
between creators and the public benefit when it says: ``The 
Congress shall have [the] power * * * to promote the progress 
of science and useful arts, by securing for limited times to 
authors and inventors the exclusive right to their respective 
writings and discoveries.'' 8
---------------------------------------------------------------------------
    \8\ U.S. Const., art. I, sec. 8, cl. 8 (emphasis added).
---------------------------------------------------------------------------
    The Constitution erects at least three boundaries around 
copyright policy: First, the duration of the copyright term 
must be ``limited;'' second, Congress must secure the right to 
authors; third, the copyright policy must promote the ``useful 
arts.'' In 1984, the Supreme Court highlighted this special 
charge when it noted that, ``[a]s the text of the Constitution 
makes plain, it is Congress that has been assigned the task of 
defining the scope of the limited monopoly that should be 
granted to authors or to inventors in order to give the public 
appropriate access to their work product.'' 9 Congress may 
fail that task by passing copyright term extension since it 
seems to run afoul of all three constitutional limitations on 
copyright policy.
---------------------------------------------------------------------------
    \9\ Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 429 
(1984).
---------------------------------------------------------------------------

                             limited times

    The phrase ``limited times'' has never been defined by the 
courts. Both the Register of Copyrights and the Commissioner of 
Patents and Trademarks argue that life-plus-70 years is a 
limited time. The Register of Copyrights suggests it is within 
the discretion of Congress to determine what constitutes a 
limited time. We do have an idea of what ``limited times'' 
meant to the drafters of the Constitution: the original grants 
of copyright extended for a time far shorter than the extreme 
position taken in this bill. The length of the term is so long 
that it invites a court review.

                           secure to authors

    The Constitution authorizes Congress to secure copyrights 
to authors. S. 483, the Copyright Term Extension Act, does not 
secure the copyrights to authors. Instead it secures the 
extended monopoly grant to the current owners of the copyright. 
Congress may exceed its constitutional authority in granting 
copyrights to owners instead of authors.

                         for the public benefit

    The Constitution empowers Congress to ``promote science and 
useful arts,'' an undertaking that benefits the public at 
large, not merely artists. The Constitution empowers Congress 
to accomplish that task by ``securing for limited times to 
authors and inventors the exclusive right to their writings and 
discoveries.'' Nowhere is there evidence in the hearing record 
of how the proposed copyright term extension will increase the 
number or quality of works for the public benefit. On the other 
hand, there is clear evidence of public harm when the public is 
denied open access to these works for another twenty years.

                      Balancing the Public Domain

    Hearings and debate on this issue focused on giving 
creators another 20 years of copyright protection, apparently 
suggesting that such an extension would not harm anyone. I 
think that is wrong. The copyright term extension will harm 
Americans. The public is clearly benefitted by having 
unrestricted access to previously copyrighted works that are 
now in the public domain.
    Several examples illustrate the value of the public domain. 
In 1993, Willa Cather's My Antonia went into the public domain. 
In 1994, seven new editions appeared costing from $2 to $24, 
thereby making the story available to many more people. 
Increasing public access to stories and ideas is the value of 
the public domain.
    Bantam Books conducted a study on so-called classics. They 
determined the following:

         more than 23 million classics are sold each 
        year;
         over half of all classics go to high schools 
        and colleges.

Now, assume royalties are about 10 percent of the cover price, 
assume the price of those books is $15.00, and assume all works 
are copyrighted (which is unlikely since many are public domain 
works). If these facts remain constant for 20 years, that means 
the public pays out $345 million in royalties, just for these 
books just in high school and college, over a 20-year period. 
That is $345 million that could go elsewhere in education. 
Saving valuable resources or allocating more for education is 
the value of the public domain.
    Snow White, Pinocchio, Beauty and the Beast, Little Mermaid 
and the music for Fantasia are all enormously successful 
creations that have one thing in common: they came from works 
in the public domain. Providing inspiration for new works and 
disseminating old ones is the value of the public domain.
    Forty-five copyright law professors wrote the Committee 
urging us to oppose S. 483 because it will harm the public. 
They state that ``[t]his legislation is a bad idea for all but 
a few copyright owners and must be defeated.'' They also noted 
that the proposed bill harms the public because it limits the 
``supply of new works'' and it increases the cost of existing 
works.
     The Constitution mandates that we consider balance when we 
consider copyright. We have a balanced copyright system that 
favors creators but that holds out a promise that sometime in 
the distant future the public will have unfettered access to 
creators'' works. Extending the term another 20 years upsets 
that balance and threatens to dry up the public domain, which 
is a major source of creativity.

           The Anticompetitiveness of a Longer Monopoly Grant

    Granting this monopoly for another 20 years is anti-
competitive. Instead of allowing open public access to these 
works, this bill preserves the limited access, the single 
seller, and the artificially high prices and limited supply 
that characterize a monopoly market.
    One of the most significant problems associated with a 
monopoly is the artificial suppression of supply in order to 
increase the price. In the context of copyright, that means 
that the owner of a particular copyright may refuse to 
disseminate works as widely as the market would dictate. This 
unnatural scarcity forces consumers to pay higher prices. Even 
worse, there are notable examples of a copyright owner deciding 
not to exploit and disseminate works at all. For example, the 
owners of copyrights to songs written by famous artists may 
refuse to market unknown songs and deny others access to them 
in order to protect or maximize their financial returns on 
other, popular songs. Such anti-competitive practices severely 
harm other creators who might be inspired by the works as well 
as the general public who are denied the enjoyment of the 
works.

                     The Music Licensing Amendment

    Being concerned about the anticompetitive nature of 
copyright law, Senator Thurmond and I offered an amendment that 
would have provided some balance to the licensing of 
copyrighted music. Under current practices, merely turning on a 
radio in a public place may subject some Americans to lawsuit 
for copyright infringement. For those who wish to play music 
and are well informed about music licensing may obtain a 
license to play music for hundreds of dollars. Only three 
organizations, ASCAP, BMI, or SESAC, sell such a license. 
Unfortunately, under the current system, it is impossible to 
choose only one: virtually anyone who chooses to play music in 
public will have to purchase a license from two if not three 
music licensing organizations. Since there are only three music 
licensing organizations, there is no real price competition 
available to consumers.
    Until recently, someone who wanted to license the music 
could not obtain a list of songs they were allowed to play. 
Therefore, another licensor could come along and claim they too 
were owed a fee for a musical performance from their list of 
songs. To date, providing a list or repertoire of songs is 
still not required by law.
    After being sued for antitrust violations, two of the three 
bodies that provide music licenses are now governed by 
antitrust consent decrees. The Department of Justice actively 
reviews these consent decrees. Under the terms of the consent 
decrees, music users who wish to challenge the fee structure 
must do so in Federal court in New York City. This provision of 
the consent decree has the unfortunate result of denying real 
relief for smaller music users who cannot afford to pursue such 
a challenge.
    The consent decrees also require that the music licensing 
organizations provide not only a blanket license to 
broadcasters (to broadcast music all day long) but also a per 
program license (to broadcast music only part of the day) that 
is a genuine economic alternative. Unfortunately, the cost of 
the per program license is not a genuine economic alternative. 
Instead, it is three or four times as expensive as the blanket 
license on an hour-by-hour comparison.
    These music licensing societies may even charge for playing 
music in a church service that is broadcast to the public. They 
may charge a restaurant when waiters and waitresses gather 
around a table to sing ``Happy Birthday.'' They may charge a 
Girl Scout camp to sing ``Edelweiss.''
    Our amendment would have remedied some of this unfairness 
by requiring local arbitration of licensing disputes. It would 
have required music licensing organizations to publish their 
repertoire and make it available to the public. It would have 
exempted the non-profit broadcast of church services. Our 
amendment would have required some rough proportionality 
between the cost of the blanket license and that of the per 
program license. Finally, it would have clarified and expanded 
the current exemption for playing music in small commercial 
establishments.
    Unfortunately, our amendment was defeated. As a 
consequence, we are left with a bill that favors only one side 
of the equation: the owners of copyright. We have neglected to 
insert some protection for the public, some protection against 
anticompetitiveness, or some guarantee of fairness for current 
and future creators.

                               Conclusion

    This bill grants the additional 20 years of copyright 
monopoly to the copyright holder, thus providing a contractual 
windfall at the expense of the public. Why should a work, 
created 70 years ago, sold to a corporation 25 years ago, be 
dedicated to that corporate buyer for another 20 years? The 
public should have access to that work as a means of providing 
incentive to new creators, disseminating these works to more 
students, historians, writers, and other Americans, and 
generally improving the public arts. In effect, we are taking 
20 years of wealth generation and transferring it to a small 
group of people--often corporate owners that did not create the 
works in the first place. The public is significantly harmed by 
that transfer of wealth.
    ``A fundamental goal of copyright law is to promote the 
public interest and knowledge.'' 10 If we pass copyright 
term extension, we fail this fundamental goal. This bill 
reduces competition and primarily rewards those who lobby 
Congress rather than those who create.
---------------------------------------------------------------------------
    \10\ U.S. Congress, Office of Technology Assessment, Copyright and 
Home Copying: Technology Challenges the Law, OTA-CIT-422 (Washington, 
DC: U.S. Government Printing Office, October 1989).
---------------------------------------------------------------------------
                                                        Hank Brown.
                     XI. MINORITY VIEWS OF MR. KOHL

    The Constitution grants Congress the power to ``secur[e] 
for limited Times to Authors and Inventors the exclusive Right 
to their respective Writings and Discoveries.'' U.S. Const. 
Art. I, Sec. 8, Cl. 8. Congress is given this power ``[t]o 
promote the Progress of Science and useful Arts.'' Id.
    Congress was not given this power for the sole purpose of 
ensuring that the heirs of copyrighted works can enjoy an 
unfettered income stream from a monopoly--or even for the 
purpose of improving the balance of trade with Europe. Yet, the 
Copyright Term Extension Act of 1996 is justified upon 
precisely these bases. And it has been recommended to the full 
Senate by the Judiciary Committee without a persuasive 
demonstration that adding 20 years to the current copyright 
term is necessary to promote scientific or artistic creativity.
    A copyright is a limited monopoly. It operates in 
derogation of the first amendment and consumer interests. As a 
result, extension of copyright term should not be lightly made 
or without great justification. In Fox Film Corp. v. Doyal, the 
Supreme Court observed that ``[t]he sole interest of the United 
States and the primary object in conferring the [copyright] 
monopoly lie in the general benefits derived by the public from 
the labors of authors.'' 286 U.S. 123, 127 (1932). Congress has 
recognized this as well. Copyrights are given ``[n]ot primarily 
for the benefit of the author, but primarily for the benefit of 
the public.'' H. Rept. 2222, 60th Cong., 2d sess. 7 (1909).
    The practical consequences of extending any monopoly--
whether oil, telephones, or copyrights--are increased prices 
for consumers. Take, for example, Scribners' books. For many 
years, during the first half of the century, Scribners was a 
great publishing house. Its stable of authors included Ernest 
Hemingway, F. Scott Fitzgerald and Thomas Wolfe, among others. 
But eventually Scribners went downhill: it failed to bring in 
new talent. And during the last years of its existence, 
Scribners (before it was eventually purchased by Simon & 
Schuster) survived by raking in profits based on high-priced 
Hemingway works. As a result, consumers--and schools and 
libraries--have had to pay more for The Sun Also Rises, For 
Whom the Bell Tolls and A Farewell to Arms. Once the copyright 
expires on these works, though, they will become much more 
affordable to the average consumer. Or take, for example, our 
great American musicals. Some of these musicals, including 
works by Rodgers and Hammerstein, are not being performed today 
in regional theater because the producers cannot afford the 10-
percent licensing fee. We forget all too often that consumers 
are injured as a result of the monopoly granted by copyrights.
    We need to ask--more carefully I think--whether the 
benefits of extending this monopoly an additional 20 years 
outweighs these costs. A few people have argued that a 
copyright term extension will make the creative community more 
dynamic. But Congress has increased the copyright term 
repeatedly--to 56 years in 1909 and, as recently as 1976, to 
the-life-of-the-artist-plus-50-years. And no one has 
convincingly argued that since 1976 the creative community has 
languished. The American creative community is already the most 
vibrant in the world--it is hard to see how increasing the 
copyright term from 50 years after death to 70 years after 
death will encourage the individual creator to greater heights 
of creativity.
    Congress has recognized the legitimate need and desire of 
an artist to leave a legacy to his heirs. However, it is not 
and cannot be a first order justification for the extension of 
copyright term. Of course, some of the people who would benefit 
from this measure--like the heirs of the American composers 
whose copyrights are about to expire--are decent and 
hardworking. But just because they are decent people does not 
mean that they should continue to receive royalties for an 
extra 20 years for work they did not create and at the expense 
of the American consumer.
    Finally, I do recognize that this measure may help improve 
our balance of trade: there is clearly some power to this 
argument. But we still have no idea of the magnitude of this 
windfall or who would enjoy its benefits: should it be the 
authors; the creators; the studios; or the artistic community 
in general, which has been devastated by Federal funding cuts?
    The Constitution only contemplated copyrights for limited 
terms. And unless we pay due consideration to the reasons for 
limiting copyrights, we risk ignoring the Founding Fathers'' 
wisdom and damaging the public interest. In order to respect 
the Constitution's requirement, Congress must strike a balance 
between encouraging creativity and protecting consumers from 
monopoly power. Like all monopolists, copyright holders are 
loathe to give up their power. But once the main purpose of the 
copyright has been served and creativity has been adequately 
encouraged, the monopoly power must bow to the public interest. 
Sadly, with this proposal, it is not clear that we have 
adequately balanced these competing interests.

                                                         Herb Kohl.
                      XII. Changes in Existing Law

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
S. 483, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, and existing law in which no 
change is proposed is shown in roman):

                           UNITED STATES CODE

          * * * * * * *

                          TITLE 17--COPYRIGHTS

          * * * * * * *

            CHAPTER 1--SUBJECT MATTER AND SCOPE OF COPYRIGHT

          * * * * * * *

Sec. 108. Limitations on exclusive rights: Reproduction by libraries 
                    and archives

    (a) Notwithstanding the provisions of section 106, it is 
not an infringement of copyright for a library or archives, or 
any of its employees acting within the scope of their 
employment, to reproduce no more than one copy or phonorecord 
of a work, or to distribute such copy or phonorecord, under the 
condition specified by this section, if--
          * * * * * * *
    (g) The rights of reproduction and distribution under this 
section extend to the isolated and unrelated reproduction or 
distribution of a single copy or phonorecord of the same 
material on separate occasions, but do not extend to cases 
where the library or archives, or its employee--
          * * * * * * *
    (h)(1) Notwithstanding any other limitation in this title, 
for purposes of this section, during the last 20 years of any 
term of a copyright of a published work, a library, archives, 
or nonprofit educational institution may reproduce or 
distribute a copy or a phonorecord of such work, or portions 
thereof, for purposes of preservation, scholarship, teaching, 
or research, if the library, archives or non-profit educational 
institution has first determined, on the basis of a reasonable 
investigation of reasonably available sources, that the work--
          (A) is not subject to normal commercial exploitation; 
        and
          (B) cannot be obtained at a reasonable price.
    (2) No reproduction or distribution under this subsection 
is authorized if the copyright owner or its agent provides 
notice to the Copyright Office that the condition in paragraph 
(1)(A) or the condition in paragraph (1)(B) does not apply.
    [h](i) The rights of reproduction and distribution under 
this section do not apply to a musical work, a pictorial, 
graphic or sculptural work, or a motion picture or other 
audiovisual work other than an audiovisual work dealing with 
news, except that no such limitation shall apply with respect 
to rights granted by subsection (b) and (c), or with respect to 
pictorial or graphic works published as illustrations, 
diagrams, or similar adjuncts to works of which copies are 
reproduced or distributed in accordance with subsections (d) 
and (e).
          * * * * * * *

                    CHAPTER 3--DURATION OF COPYRIGHT

          * * * * * * *

Sec. 301. Preemption with respect to other laws

    (a) * * *
          * * * * * * *
    (c) With respect to sound recordings fixed before February 
15, 1972, any rights or remedies under the common law or 
statutes of any State shall not be annulled or limited by this 
title until [February 15, 2047] February 15, 2067. The 
preemptive provisions of subsection (a) shall apply to any such 
rights and remedies pertaining to any cause of action arising 
from undertakings commenced on and after [February 15, 2047] 
February 15, 2067. Notwithstanding the provisions of section 
303, no sound recording fixed before February 15, 1972, shall 
be subject to copyright under this title before, on, or after 
[February 15, 2047] February 15, 2067.
          * * * * * * *

Sec. 302. Duration of copyright: Works created on or after January 1, 
                    1978

    (a) In General.--Copyright in a work created on or after 
January 1, 1978, subsists from its creation and, except as 
provided by the following subsections, endures for a term 
consisting of the life of the author and [fifty] 70 years after 
the author's death.
    (b) Joint Works.--In the case of a joint work prepared by 
two or more authors who did not work for hire, the copyright 
endures for a term consisting of the life of the last surviving 
author and [fifty] 70 years after such last surviving author's 
death.
    (c) Anonymous Works, Pseudonymous Works, and Works Made for 
Hire.--In the case of an anonymous work, a pseudonymous work, 
or a work made for hire, the copyright endures for a term of 
[seventy-five] 95 years from the year of its first publication, 
or a term of [one hundred] 120 years from the year of its 
creation, whichever expires first. If, before the end of such 
term, the identity of one or more of the authors of an 
anonymous or pseudonymous work is revealed in the records of a 
registration made for that work under subsections (a) or (d) of 
section 408, or in the records provided by this subsection, the 
copyright in the work endures for the term specified by 
subsection (a) or (b), based on the life of the author or 
authors whose identity has been revealed. Any person having an 
interest in the copyright in an anonymous or pseudonymous work 
may at any time record, in records to be maintained by the 
Copyright Office for that purpose, a statement identifying one 
or more authors of the work; the statement shall also identify 
the person filing it, the nature of that person's interest, the 
source of the information recorded, and the particular work 
affected, and shall comply in form and content with 
requirements that the Register of Copyrights shall prescribe by 
regulation.
          * * * * * * *
    (e) Presumption as to Author's Death.--After a period of 
[seventy-five] 95 years from the year of first publication of a 
work, or a period of [one hundred] 120 years from the year of 
its creation, whichever expires first, any person who obtains 
from the Copyright Office a certified report that the records 
provided by subsection (d) disclose nothing to indicate that 
the author of the work is living, or died less than [fifty] 70 
years before, is entitled to the benefit of a presumption that 
the author has been dead for at least [fifty] 70 years. 
Reliance in good faith upon this presumption shall be a 
complete defense to any action for infringement under this 
title.
          * * * * * * *

Sec. 303. Duration of copyright: Works created but not published or 
                    copyrighted before January 1, 1978

    Copyright in a work created before January 1, 1978, but not 
theretofore in the public domain or copyrighted, subsists from 
January 1, 1978, and endures for the term provided by section 
302. In no case, however, shall the term of copyright in such a 
work expire before December 31, 2002; and, if the work is 
published on or before December 31, 2002, the term of copyright 
shall not expire before [December 31, 2027] December 31, 2047.
          * * * * * * *

Sec. 304. Duration of copyright: Subsisting copyrights

    (a) Copyrights in Their First Term on January 1, 1978.--
(1)(A) Any copyright, the first term of which is subsisting on 
January 1, 1978, shall endure for 28 years from the date it was 
originally secured.
    (B) In the case of--
          (i) any posthumous work or of any periodical, 
        cyclopedic, or other composite work upon which the 
        copyright was originally secured by the proprietor 
        thereof, or
          (ii) any work copyrighted by a corporate body 
        (otherwise than as assignee or licensee of the 
        individual author) or by an employer for whom such work 
        is made for hire,
the proprietor of such copyright shall be entitled to a renewal 
and extension of the copyright in such work for the further 
term of [47] 67 years.
    (C) In the case of any other copyrighted work, including a 
contribution by an individual author to a periodical or to a 
cyclopedic or other composite work--
          (i) the author of such work, if the author is still 
        living,
          (ii) the widow, widower, or children of the author, 
        if the author is not living,
          (iii) the author's executors, if such author, widow, 
        widower, or children are not living, or
          (iv) the author's next of kin, in the absence of a 
        will of the author,
shall be entitled to a renewal and extension of the copyright 
in such work for a further term of [47] 67 years.
    (2)(A) At the expiration of the original term of copyright 
in a work specified in paragraph (1)(B) of this subsection, the 
copyright shall endure for a renewed and extended further term 
of [47] 67 years, which--
          (i) if an application to register a claim to such 
        further term has been made to the Copyright Office 
        within 1 year before the expiration of the original 
        term of copyright, and the claim is registered, shall 
        vest, upon the beginning of such further term, in the 
        proprietor of the copyright who is entitled to claim 
        the renewal of copyright at the time the application is 
        made; or
          (ii) if no such application is made or the claim 
        pursuant to such application is not registered, shall 
        vest, upon the beginning of such further term, in the 
        person or entity that was the proprietor of the 
        copyright as of the last day of the original term of 
        copyright.
    (B) At the expiration of the original term of copyright in 
a work specified in paragraph (1)(C) of this subsection, the 
copyright shall endure for a renewed and extended further term 
of [47] 67 years, which--
          (i) If an application to register a claim to such 
        further term has been made to the Copyright Office 
        within 1 year before the expiration of the original 
        term of copyright, and the claim is registered, shall 
        vest, upon the beginning of such further term, in any 
        person who is entitled under paragraph (1)(C) to the 
        renewal and extension of the copyright at the time the 
        application is made; or
          (ii) if no such application is made or the claim 
        pursuant to such application is not registered, shall 
        vest, upon the beginning of such further term, in any 
        person entitled under paragraph (1)(C), as of the last 
        day of the original term of copyright, to the renewal 
        and extension of the copyright.
    (3)(A) An application to register a claim to the renewed 
and extended term of copyright in a work may be made to the 
Copyright Office--
          (i) within 1 year before the expiration of the 
        original term of copyright by any person entitled under 
        paragraph (1)(B) or (C) to such further term of [47] 67 
        years; and
          (ii) at any time during the renewed and extended term 
        by any person in whom such further term vested, under 
        paragraph (2)(A) or (B), or by any successor or assign 
        of such person, if the application is made in the name 
        of such person.
    (B) Such an application is not a condition of the renewal 
and extension of the copyright in a work for a further term of 
[47] 67 years.
          * * * * * * *
    [(b) Copyrights in Their Renewal Term or Registered for 
Renewal Before January 1, 1978.--The duration of any copyright, 
the renewal term of which is subsisting at any time between 
December 31, 1976, and December 31, 1977, inclusive, or for 
which renewal registration is made between December 31, 1976, 
and December 31, 1977, inclusive, is extended to endure for a 
term of seventy-five years from the date copyright was 
originally secured.]
    (b) Copyrights in Their Renewal Term at the Time of the 
Effective Date of the Copyright Term Extension Act of 1996.--
Any copyright still in its renewal term at the time that the 
Copyright Term Extension Act of 1996 becomes effective shall 
have a copyright term of 95 years from the date copyright was 
originally secured.
    (c) Termination of Transfers and Licenses Covering Extended 
Renewal Term.--In the case of any copyright subsisting in 
either its first or renewal term on January 1, 1978, other than 
a copyright in a work made for hire, the exclusive or 
nonexclusive grant of a transfer or license of the renewal 
copyright or any right under it, executed before January 1, 
1978, by any of the persons designated by the second proviso of 
subsection (a) of this section, otherwise than by will, is 
subject to termination under the following conditions:
          (1) * * *
          * * * * * * *
          (4) * * *
          * * * * * * *
                  (A) The notice shall state the effective date 
                of the termination, which shall fall within the 
                five-year period specified by clause (3) of 
                this subsection, or, in the case of a 
                termination under subsection (d), within the 
                five-year period specified by subsection 
                (d)(2), and the notice shall be served not less 
                than two or more than ten years before that 
                date. A copy of the notice shall be recorded in 
                the Copyright Office before the effective date 
                of termination, as a condition to its taking 
                effect.
          * * * * * * *
    (d) Termination Rights Provided in Subsection (c) Which 
Have Expired On or Before the Effective Date of the Copyright 
Term Extension Act of 1996.--In the case of any copyright other 
than a work made for hire, subsisting in its renewal term on 
the effective date of the Copyright Term Extension Act of 1996 
for which the termination right provided in subsection (c) has 
expired by such date, where the author or owner of the 
termination right has not previously exercised such termination 
right, the exclusive or nonexclusive grant of a transfer or 
license of the renewal copyright or any right under it, 
executed before January 1, 1978, by any of the persons 
designated in subsection (a)(1)(C) of this section, other than 
by will, is subject to termination under the following 
conditions:
          (1) The conditions specified in subsection (c) (1), 
        (2), (4), (5), and (6) of this section apply to 
        terminations of the last 20 years of copyright term as 
        provided by the amendments made by the Copyright Term 
        Extension Act of 1996.
          (2) Termination of the grant may be effected at any 
        time during a period of 5 years beginning at the end of 
        75 years from the date copyright was originally 
        secured.
          * * * * * * *

                  (Public Law 102-307--June 26, 1992)

                     Copyright Renewal Act of 1992

          * * * * * * *

                     TITLE I--RENEWAL OF COPYRIGHT

SEC. 101. SHORT TITLE.

    This title may be referred to as the ``Copyright Renewal 
Act of 1992''.

SEC. 102. COPYRIGHT RENEWAL PROVISIONS.

    (a) Duration of Copyright: Subsisting Copyrights.--Section 
304(a) of title 17, United States Code, is amended to read as 
follows:
          * * * * * * *
    (c) Legal Effect of Renewal of Copyright Unchanged.--The 
renewal and extension of a copyright for a further term of [47] 
67 years provided for under paragraphs (1) and (2) of section 
304(a) of title 17, United States Code [(as amended by 
subsection (a) of this section)] shall have the same effect 
with respect to any grant, before the [effective date of this 
section] effective date of the Copyright Term Extension Act of 
1995, of a transfer or license of the further term as did the 
renewal of a copyright before the [effective date of this 
section] effective date of the Copyright Term Extension Act of 
1995 under the law in effect at the time of such grant.
          * * * * * * *
    (g) Effective Date; Copyrights Affected by Amendment.--(1) 
Subject to paragraphs (2) and (3), this section and the 
amendments made by this section shall take effect on the date 
of the enactment of this Act.
    (2) The amendments made by this section shall apply only to 
those copyrights secured between January 1, 1964, and December 
31, 1977. Copyrights secured before January 1, 1964, shall be 
governed by the provisions of section 304(a) of title 17, 
United States Code, as in effect on the day before the 
effective date of this section, except each reference to forty-
seven years in such provisions shall be deemed to be 67 years.
          * * * * * * *