[House Report 105-452]
[From the U.S. Government Publishing Office]
105th Congress Report
2d Session HOUSE OF REPRESENTATIVES 105-452
_______________________________________________________________________
COPYRIGHT TERM EXTENSION ACT
_______
March 18, 1998.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Coble, from the Committee on the Judiciary, submitted the following
R E P O R T
together with
ADDITIONAL VIEWS
[To accompany H.R. 2589]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the bill
(H.R. 2589) 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, report favorably thereon
with an amendment and recommend that the bill do pass.
CONTENTS
Page
The Amendment.................................................... 1
Purpose and Summary.............................................. 3
Background and Need for Legislation.............................. 3
Hearings......................................................... 5
Committee Consideration.......................................... 5
Committee Oversight Findings..................................... 5
Committee on Government Reform and Oversight Findings............ 5
New Budget Authority and Tax Expenditures........................ 5
Congressional Budget Office Estimate............................. 5
Section-by-Section Analysis and Discussion....................... 6
Changes in Existing Law.......................................... 9
Additional Views................................................. 15
The amendment is as follows:
Strike out 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''.
SEC. 2. DURATION OF COPYRIGHT PROVISIONS.
(a) 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''.
(b) 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''.
(c) 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''.
(d) Duration of Copyright: Subsisting Copyrights.--
(1) In general.--Section 304 of title 17, United States Code,
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 1997.--Any copyright still
in its renewal term at the time that the Copyright Term Extension Act
of 1997 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 1997.--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 1997 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 1997.
``(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) Copyright renewal act of 1992.--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 1997''; 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. TERMINATION OF TRANSFERS AND LICENSES COVERING EXTENDED RENEWAL
TERM.
Sections 203(a)(2) and 304(c)(2) of title 17, United States Code, are
each amended--
(1) by striking ``by his widow or her widower and his or her
children or grandchildren''; and
(2) by inserting after subparagraph (C) the following:
``(D) In the event that the author's widow, widower,
children, and grandchildren are not living, the
author's executors shall own the author's entire
termination interest, or, in the absence of a will of
the author, the author's next of kin shall own the
author's entire termination interest, on a per stirpes
basis according to the number of such author's next of
kin represented. The share of the children of a dead
next of kin at the same level of relationship to the
author eligible to take a share of a termination
interest can be exercised only by the action of a
majority of them.''.
SEC. 4. REPRODUCTION BY LIBRARIES AND ARCHIVES.
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) For purposes of this section, during the last 20 years of
any term of copyright of a published work, a library or archives,
including a nonprofit educational institution that functions as such,
may reproduce, distribute, display, or perform in facsimile or digital
form a copy or phonorecord of such work, or portions thereof, for
purposes of preservation, scholarship, or research, if such library or
archives has first determined, on the basis of a reasonable
investigation, that none of the conditions set forth in subparagraphs
(A), (B), and (C) of paragraph (2) apply.
``(2) No reproduction, distribution, display, or performance is
authorized under this subsection if--
``(A) the work is subject to normal commercial exploitation;
``(B) a copy or phonorecord of the work can be obtained at a
reasonable price; or
``(C) the copyright owner or its agent provides notice
pursuant to regulations promulgated by the Register of
Copyrights that either of the conditions set forth in
subparagraphs (A) and (B) applies.
``(3) The exemption provided in this subsection does not apply to any
subsequent uses by users other than such library or archives.''.
SEC. 5. VOLUNTARY NEGOTIATION REGARDING DIVISION OF ROYALTIES.
It is the sense of the Congress that copyright owners of audiovisual
works for which the term of copyright protection is extended by the
amendments made by this Act, and the screenwriters, directors, and
performers of those audiovisual works, should negotiate in good faith
in an effort to reach a voluntary agreement or voluntary agreements
with respect to the establishment of a fund or other mechanism for the
amount of remuneration to be divided among the parties for the
exploitation of those audiovisual works.
SEC. 6. EFFECTIVE DATE.
This Act and the amendments made by this Act shall take effect on the
date of the enactment of this Act.
Purpose and Summary
H.R. 2589, the ``Copyright Term Extension Act,'' will
extend the term of copyright protection in all copyrighted
works that have not fallen into the public domain by twenty
years.
Background and Need for Legislation
Pursuant to Article I, Section 8 of the United States
Constitution, Title 17 of the United States Code gives the
owners and authors of creative works an exclusive right to keep
others from using their work for a limited period of time
through copyright protection.
The term of copyright protection varies depending on the
type of work. Under current law, most creative works receive
copyright protection for the life of the author plus fifty
years. In a work created by two or more authors, the copyright
term endures for the life of the last surviving author plus
fifty years. In the case of anonymous works, pseudonymous
works, and works made for hire, the copyright term endures for
a period of seventy-five years from the year of its
publication, or a term of one hundred years from its creation,
whichever expires first. A work made for hire is a work
prepared by an employee in the scope of his employment or a
work that is specifically commissioned for use in certain types
of works, such as a collective work or motion picture.
Upon the expiration of the copyright term, the work falls
into the public domain. This means that anyone may perform the
work, display the work, make copies of the work, distribute
copies of the work, and create derivative works based on the
work without first having to get authorization from the
copyright holder. Essentially, the copyright holder no longer
has the exclusive ability to exploit the work to their
financial gain and no longer ``owns'' the work.
The United States has international obligations to protect
copyrights as well. The Berne Convention, originally drafted in
1886, is the international treaty which mandates basic
copyright protection rules for its member countries. Currently
there are over 100 countries that are members of the
convention. The United States became a member in 1989. Under
the Berne Convention, member countries must protect copyright
for a term of life of the author plus fifty years. Under ``the
rule of the shorter term'', member states need only protect the
work of foreign authors to the same extent that they would be
protected in their country of origin.
In 1995, the European Union extended the copyright term for
all of its member states from life of the author plus fifty
years to life of the author plus seventy years. As the world
leader in the export of intellectual property, this has
profound effects for the United States if it does not extend
copyright term as well.
European Union countries, which are huge markets for U.S.
intellectual property, would not have to provide twenty years
of copyright protection to U.S. works and the U.S. would lose
millions of dollars in export revenues. Extending copyright
term to life of the author plus seventy years means that U.S.
works will generally be protected for the same amount of time
as works created by European Union authors. Therefore, the
United States will ensure that profits generated from the sale
of U.S. intellectual property abroad will come back to the
United States.
Extending copyright protection will be an incentive for
U.S. authors to continue using their creativity to produce
works, and provide copyright owners generally with the
incentive to restore older works and further disseminate them
to the public. Authors will be able to pass along to their
children and grandchildren the financial benefits of their
works.
Hearings
The Committee's Subcommittee on Courts and Intellectual
Property held a hearing on the issue of copyright term
extension on June 27, 1997. Testimony was received from Fritz
Attaway representing the Motion Picture Association of America;
George David Weiss, representing the Songwriters Guild of
America; Frances Preston, representing Broadcast Music,
Incorporated; and Professor Jerome Reichman of Vanderbilt Law
School.
Committee Consideration
On September 30, 1997, the Subcommittee on Courts and
Intellectual Property met in open session and ordered reported
the bill H.R. 2589 by voice vote, a quorum being present.
OnMarch 3, 4, 1998, the Committee met in open session and ordered
reported favorably the bill H.R. 2589, as amended, by voice vote, a
quorum being present.
Committee Oversight Findings
In compliance with clause 2(l)(3)(A) of rule XI of the
Rules of the House of Representatives, the Committee reports
that the findings and recommendations of the Committee, based
on oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
Committee on Government Reform and Oversight Findings
No findings or recommendations of the Committee on
Government Reform and Oversight were received as referred to in
clause 2(l)(3)(D) of rule XI of the Rules of the House of
Representatives.
New Budget Authority and Tax Expenditures
Clause 2(l)(3)(B) of House rule XI is inapplicable because
this legislation does not provide new budgetary authority or
increased tax expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 2(l)(3)(C) of rule XI of the
Rules of the House of Representatives, the Committee sets
forth, with respect to the bill H.R. 2589, the following
estimate and comparison prepared by the Director of the
Congressional Budget Office under section 403 of the
Congressional Budget Act of 1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, March 11, 1998.
Hon. Henry J. Hyde,
Chairman, Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 2589, the
Copyright Term Extension Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Kim Cawley.
Sincerely,
June E. O'Neill, Director.
Enclosure.
H.R. 2589--Copyright Term Extension Act
CBO estimates that enacting this bill would not have a
significant effect on the federal budget. We estimate the
Copyright Office would spend less than $500,000 to promulgate
necessary regulations if the bill were enacted. Because
enactment of this bill would not affect direct spending or
receipts, pay-as-you-go procedures would not apply. H.R. 2589
contains no intergovernmental or private-sector mandates as
defined in the Unfunded Mandates Reform Act of 1995 and would
not affect the budgets of state, local, or tribal governments.
H.R. 2589 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. The bill also would
direct the Copyright Office to prepare regulations to allow
libraries to reproduce works in hard copies or in digital form
during the 20-year copyright extension period, for purposes of
preservation, scholarships, or research, provided certain
conditions are met. Based on information from the Copyright
Office, we estimate that promulgating these regulations and
updating the office's printed materials would cost less than
$500,000, assuming appropriation of the necessary amounts.
The CBO staff contact for this estimate is Kim Cawley. This
estimate was approved by Robert A. Sunshine, Deputy Assistant
Director for Budget Analysis.
Section-by-Section Analysis and Discussion
Section 1. Short Title
This section states that this bill may be cited as the
``Copyright Term Extension Act.''
Section 2. Duration of Copyright Provisions
Subsection (a), Preemption With Respect to Other Laws
Section 301(c) of the current copyright statute contains an
exception to the general preemption of state common law and
statutory copyright. The exception ``grandfathers'' state
common law and statutory protection for sound recordings
against record piracy for 75 years from February 15, 1972, the
date the federal copyright statute was amended to first grant
federal protection for sound recordings. Because this bill will
extend the total term of protection for pre-1978 copyrighted
works by 20 years, to a total of 95 years, a similar 20-year
extension is be given to the ``grandfathered'' pre-February 15,
1972 sound recordings in H.R. 2589.
Subsection (b), Duration of Copyright: Works created on or After
January 1, 1978
Section 302(a) of the current copyright statute grants a
basic term of life-plus-50-years; in the case of joint works,
Section 302(b) measures the ``life'' by that of the longest
surviving co-author. The bill makes both terms life-plus-70-
years. Section 302(c) of the current statute grants a term of
75 years from publication or 100 years from creation (whichever
expires first) in the cases of works made for hire, anonymous
and pseudonymous works (as there is no known ``life'' to be
measured in those cases). The bill extends those terms by 20
years, to 95 years from publication or 120 years from creation,
whichever expires first. Section 302(e) of the current statute
establishes a presumption with respect to an author's death: if
a search of Copyright Office records made after 75 years from
publication or 100 years from creation of a work does not
disclose that the author died within the past 50 years, the
author is presumed dead for at least 50 years and no
infringement action will lie. The bill extends all those time
periods by 20 years.
Subsection (c), Duration of Copyright: Works Created but Not Published
or Copyrighted Before January 1, 1978
Prior to January 1, 1978, state common law copyright for
unpublished works was perpetual. The 1976 Copyright Act
preempted such perpetual common law protection, and the
perpetual term for unpublished works protected by common law on
January 1, 1978 transformed to the life-plus-50-years (or other
applicable) term. However, because some of those unpublished
works were written by authors who had been dead for more than
50 years on January 1, 1978, it was thought unfair to thrust
those works into the public domain immediately (which would
have been the effect if the life-plus-50-year term were
applied). Section 303 of the current law gave those unpublished
works a minimum of 25 years of protection until December 31,
2002. In order to provide an incentive to make those works
available to the public, an additional 25 years was provided if
the work was published before December 31, 2002, making the
potentially available term last through the year 2027. In the
104th Congress, the bill H.R. 989 extended both of these dates.
H.R. 2589 leaves unaffected the ordinary term for section 303
works, so that protection expires at the latest in the year
2002. These older works by definition have not been subject to
commercial exploitation, so that the benefit from extending the
term of protection for this category of works do not outweigh
the detriments from limiting public access to these often
historically significant works. However, works in this category
that are published before the year 2002 would have protection
until the year 2047, an extra twenty years beyond the current
possible term.
Subsection (d), Duration of Copyright: Subsisting Copyrights
Subsection (d)(1) In General
This section amends Section 304(a) which deals with
copyrights in their first term on January 1, 1978. Under
current law, works in their first term are eligible for a
renewal term of 47 years. H.R. 2589 will extend the renewal
term of copyright protection by twenty years making it a 67
year renewal term. This section also amends Section 304(b)
which deals with copyrights in their renewal term before
January 1, 1978. Under current law, works in their renewal term
before January 1, 1978, received a term of seventy-five years
from the date copyright was originally secured. This bill would
extend that term to ninety-five years from the date copyright
was originally secured. This bill also subjects to termination
any exclusive or nonexclusive transfers or licenses of works in
their renewal term in certain circumstances. Thisis to allow
the original authors of works and their beneficiaries to benefit from
the extended copyright protection.
Subsection (d)(2), Copyright Renewal Act of 1992 Amendment
In 1992, Public Law 102-307 (the Copyright Renewal Act of
1992) amended the then-current Section 304(a) to make renewals
of pre-1978 works automatic rather than dependent on timely
filing of a renewal application. Section 102(2) of Title I of
Public Law 102-307 spoke of the effect of renewal ``for a
further term of 47 years'' on grants of transfer or license
made before the amendment went into effect. As the bill will
make the renewal term 67 rather than 47 years, this provision
of Public Law 102-307 is accordingly amended, to avoid any
implication that a shorter term still applies to some older
works.
Section 3. Termination of Transfers and Licenses Covering Extended
Renewal Term
This section amends Sections 203(a)(2) and 304(c)(2) by
allowing an author's executor to receive his entire termination
interest in the event that the author's widow, widower,
children, or grandchildren are not living, or in the absence of
a will, the author's next of kin shall own the author's entire
termination interest.
Section 4. Reproduction by Libraries and Archives
This section is designed to permit libraries and archives
to make certain uses of copyrighted material, including in
digital form, during the 20-year extension, in certain
circumstances. This is an exemption for libraries and archives,
or other nonprofit educational institution, allowing them to
reproduce, distribute, display, or perform a copy of a work or
phonorecord for purposes of preservation, scholarship, or
research. However, the exemption applies only where the entity
has determined after reasonable investigation, that none of the
following conditions apply: (1) that the work is subject to
normal commercial exploitation, (2) a copy of the work can be
obtained at a reasonable price, and (3) the copyright owner or
its agents have provided notice that either of the first two
conditions apply. This exemption would allow library users the
benefit of access to published works that are not commercially
exploited or otherwise reasonably available during the extended
term.
Section 5. Voluntary Negotiation Regarding Division of Royalties
This is a new provision containing a Sense of Congress that
the parties involved in the making of motion pictures should
negotiate voluntarily and in good faith to decide amongst
themselves the amount of remuneration to be divided between
them for the amounts received as a result of this bill.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3 of rule XIII of the Rules of the
House of Representatives, changes in existing law made by the
bill, as reported, are shown as follows (existing law proposed
to be omitted is enclosed in black brackets, new matter is
printed in italic, existing law in which no change is proposed
is shown in roman):
TITLE 17, UNITED STATES CODE
* * * * * * *
CHAPTER 1--SUBJECT MATTER AND SCOPE OF COPYRIGHT
* * * * * * *
Sec. 108. Limitations on exclusive rights: Reproduction by libraries
and archives
(a) * * *
* * * * * * *
(h)(1) For purposes of this section, during the last 20 years
of any term of copyright of a published work, a library or
archives, including a nonprofit educational institution that
functions as such, may reproduce, distribute, display, or
perform in facsimile or digital form a copy or phonorecord of
such work, or portions thereof, for purposes of preservation,
scholarship, or research, if such library or archives has first
determined, on the basis of a reasonable investigation, that
none of the conditions set forth in subparagraphs (A), (B), and
(C) of paragraph (2) apply.
(2) No reproduction, distribution, display, or performance is
authorized under this subsection if--
(A) the work is subject to normal commercial
exploitation;
(B) a copy or phonorecord of the work can be obtained
at a reasonable price; or
(C) the copyright owner or its agent provides notice
pursuant to regulations promulgated by the Register of
Copyrights that either of the conditions set forth in
subparagraphs (A) and (B) applies.
(3) The exemption provided in this subsection does not apply
to any subsequent uses by users other than such library or
archives.
[(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 subsections (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 2--COPYRIGHT OWNERSHIP AND TRANSFER
* * * * * * *
Sec. 203. Termination of transfers and licenses granted by the author
(a) Conditions for Termination.--In the case of any work
other than a work made for hire, the exclusive or nonexclusive
grant of a transfer or license of copyright or of any right
under a copyright, executed by the author on or after January
1, 1978, otherwise than by will, is subject to termination
under the following conditions:
(1) * * *
(2) Where an author is dead, his or her termination
interest is owned, and may be exercised, [by his widow
or her widower and his or her children or
grandchildren] as follows:
(A) * * *
* * * * * * *
(D) In the event that the author's widow,
widower, children, and grandchildren are not
living, the author's executors shall own the
author's entire termination interest, or, in
the absence of a will of the author, the
author's next of kin shall own the author's
entire termination interest, on a per stirpes
basis according to the number of such author's
next of kin represented. The share of the
children of a dead next of kin at the same
level of relationship to the author eligible to
take a share of a termination interest can be
exercised only by the action of a majority of
them.
* * * * * * *
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] 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. 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] 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 bythe 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 benefits 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
(a) 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] 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) * * *
* * * * * * *
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) * * *
* * * * * * *
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) * * *
* * * * * * *
(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) * * *
* * * * * * *
(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
* * * * * * *
(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 1997.--
Any copyright still in its renewal term at the time that the
Copyright Term Extension Act of 1997 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 subsection (a)(1)(C)
of this section, otherwise than by will, is subject to
termination under the following conditions:
(1) * * *
(2) Where an author is dead, his or her termination
interest is owned, and may be exercised, [by his widow
or her widower and his or her children or
grandchildren] as follows:
(A) * * *
* * * * * * *
(D) In the event that the author's widow,
widower, children, and grandchildren are not
living, the author's executors shall own the
author's entire termination interest, or, in
the absence of a will of the author, the
author's next of kin shall own the author's
entire termination interest, on a per stirpes
basis according to the number of such author's
next of kin represented. The share of the
children of a dead next of kin at the same
level of relationship to the author eligible to
take a share of a termination interest can be
exercised only by the action of a majority of
them.
* * * * * * *
(4) The termination shall be effected by serving an
advance notice in writing upon the grantee or the
grantee's successor in title. In the case of a grant
executed by a person or persons other than the author,
the notice shall be signed by all of those entitled to
terminate the grant under clause (1) of this
subsection, or by their duly authorized agents. In the
case of a grant executed by one or more of the authors
of the work, the notice as to any one author's share
shall be signed by that author or his or her duly
authorized agent or, if that author is dead, by the
number and proportion of the owners of his or her
termination interest required under clauses (1) and (2)
of this subsection, or by their duly authorized agents.
(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 1997.--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 1997
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 1997.
(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.
* * * * * * *
----------
SECTION 102 OF THE COPYRIGHT RENEWAL ACT OF 1992
* * * * * * *
SEC. 102. COPYRIGHT RENEWAL PROVISIONS.
(a) * * *
* * * * * * *
(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
1997, 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
1997 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.
* * * * * * *
ADDITIONAL VIEWS OF CONGRESSWOMAN ZOE LOFGREN
Despite opposition from much of the academic legal
community, The New York Times, and others, to the extension of
the term of copyrights through H.R. 2589, I have been a
supporter of extending the term. I have supported term
extension because I believe that the reciprocal recognition of
copyrights by the European Union--part of the tradeoff if the
United States extends copyright terms--is important for
American copyright holders. However, I signed on as an original
cosponsor of H.R. 2589 with the understanding that the original
bill was only a starting point and not a final product.
While the objectives of H.R. 2589 are important, the bill
could be improved. In Subcommittee and at full Committee
markup, I asked that H.R. 2589 deal with the narrow, yet
important, situation when a creative work is lawfully possessed
by a library or school, remains protected by copyright solely
as a consequence of the term extension under H.R. 2589, yet is
commercially unavailable. When we consider that copyright terms
will grow to last long after the creator has passed on, it is
reasonable to expect that there will be some copyrighted works
that, toward the end of their copyright term, will be out-of-
print or unavailable. In that narrow case, I think it makes
sense to allow, for the purposes of research, private study, or
archival activities, the work to be used as if it were still in
the public domain.
This would be a benign and public-spirited exception, which
would cause no damage to copyright holders. For instance, in
the amendment considered and rejected by voice vote at full
Committee markup, this publication-profit exception could have
been terminated merely by a notification by the copyright
holder to the copyright office or the public/non-profit
institution that commercial exploitation was taking place or
contemplated.
While the failure to adopt this amendment is not fatal to
the bill, I believe it is important to listen carefully to
schools and libraries and to craft provisions of law that will
assist them in their honorable mission to disseminate the
accumulated knowledge and wisdom of mankind. Therefore, despite
the fact that the amendment rejected in full Committee was
narrow and arcane, I still believe that it is important for the
Congress to consider and adopt some amendment to this bill that
will accommodate the mission of public sector libraries and
schools to assist in the intellectual development of humankind.
Zoe Lofgren.