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Is Life Plus Seventy Too Much?
Jenny L. Dixon [FNa]
Note, Hastings Communications and Entertainment Law Journal (COMMENT)
A. Historical Origins
In the United States, "copyright law is the infrastructure supporting the progress of learning in our free society—and that if it is to serve this crucial function, the law must take into account not only rewards for creators and disseminators but also reasonable rights for the users who provide those rewards." [FN45] This copyright philosophy, [FN46] with an emphasis on the public users, exemplifies the difference between "copyright, which arose under the common law system to prohibit copying, and authors' rights, which arose under the French and other civil law systems to protect the property created by the author."
The United States does not subscribe to the authors' rights view of copyright because it views copyright law as a mechanism to secure the general benefits derived by the public from the labors of authors, not as one to reward the authors. [FN48] The primary purpose of United States' copyright law was, from the outset, to stimulate creative production for the public good. [FN49] In this spirit, the Framers created a copyright system which would "'[f]oster the growth of learning and culture for the public welfare, and the grant exclusive rights to authors for a limited time as a means to that end."' [FN50] Accordingly, three policies underscore the American copyright system: first, that copyright promotes learning; second, that copyright preserves the public domain; and third, that copyright encourages creation and distribution of the works by protecting the author. [FN51]
The origins and goals of the U.S. copyright system lead us to inquire: how long should copyright protection last? [FN52] Certainly, the Framers did not intend for Congress to provide authors with exclusive rights to extend in perpetuity. [FN53] In fact, as the Register of Copyright once noted, Congress has the power to give the copyright owner "exclusive control over the market for his work . .. [though] if his control were unlimited [in duration], it could become an undue restraint on the dissemination of the work." [FN54]
The Framers considered the potential danger of granting authors exclusive rights to their works and reduced it by imposing conditions upon Congress' exercise of this grant. Accordingly, the duration of copyright protection must promote the "progress of science and useful arts" and must exist only for a "limited time." [FN55]
What constitutes a limited time? This inquiry seems to beg the question as to what duration of protection is necessary to encourage composers to engage in creative work. [FN56] "Does any writer write less, or worse, because of the length of the copyright term?" [FN57] Common sense tells us the answer to this question: No. [FN58] There appears to be no correlation between productivity and duration of protection. [FN59] A sixty year legal monopoly does not make the author three times more productive than a twenty year legal monopoly. [FN60] As one scholar noted, "[d]istant advantages tend to be much less persuasive as a motivator of action than relatively immediate advantage." [FN61]
If protection extends past this elusive, optimal duration, it has adverse effects upon the public because the public domain suffers. [FN62] An excessive duration limits the creative tools available for the creation of new works. [FN63] As Justice Holmes noted: [Copyright] restrains the spontaneity of men where but for it there would be nothing of any kind to hinder their doing as they saw fit. It is a[n] [artificial] prohibition of conduct remote from the persons or tangibles of the party having the right . . . .
It is a right which could not be recognized or endured for more than a limited time, and . . . it is one which hardly can be conceived except as a product of statute . . . . [FN64] Therefore, while copyright law may create property-like rights, these rights are statutory creatures and subject to limitations in subject matter, scope, and duration. [FN65] In sum, United States "[c]opyright law is a legal scheme, prescribed in the Constitution and put in place by Congress, to encourage the enterprise of authorship . . . . The [copyright] system creates legal rights akin to property rights." [FN66] But it is crucial to realize that "[t]he monopoly privileges that Congress may authorize are neither unlimited nor primarily designed to provide a special private benefit." [FN67] Copyright law creates a limited, statutory monopoly. [FN68]
# # #
IV. The Copyright Term Extension Act
A. Background
B. Effect of the Proposed Amendment
Terms of copyright protection which are not tied to the life of the author, i.e., older works on the fixed term system and "works made for hire," [FN199] would also receive the benefit of an additional twenty years of protection. [FN200] This means that works that have already been renewed, or that are up for renewal soon, would receive a renewal period of sixty-seven years in lieu of the forty-seven year renewal period which took into account the changes in duration from the 1976 Copyright Act. [FN201] "Works made for hire" would be protected for 95 years from publication or 120 years from creation, whichever is shorter. [FN202] "Anonymous" [FN203] and "pseudonymous works" [FN204] would also get a twenty year increase under the proposed legislation. [FN205]
Lyricists and the music industry in general favor the proposed extension. [FN206] Their support stems largely from the personal benefit they would derive from such an extension. [FN207] The proposed extension would entitle the songwriter's estate to collect the royalties from his or her works for an additional two decades before these works would fall into the public domain. [FN208] Opposition to the proposed extension comes primarily from the academic community. [FN209]
C. Special Interests at Work—Arguing For Life Plus Seventy
Authors and composers argue that it is reasonable for them to consider their copyrights as "valuable resource[s] to be passed on to their children and through them into the succeeding generation." [FN212] According to many composers, it never occurred to them that their songs—their legacy to their children—would someday fall into the public domain, as opposed to passing to their estate after their deaths and providing a source of income to successive generations. [FN213] Heirs feel that it is "monstrously unfair that other recognized forms of property—lands, business, and so on—can be handed down indefinitely, . . . whereas the value of intellectual property under current copyright laws is arbitrarily cut off . . .." [FN214]
Proponents also argue that new technologies make older works commercially viable and exploitable for longer periods of time. [FN215] Consequently, allowing these works, upon which authors' livelihoods are based, to enter the public domain will cause great hardship to the authors and their families. [FN216] A term extension will increase the economic rewards of creativity which, in turn, will stimulate continued artistic activity. [FN217] Yet, the most powerful argument for extending the term of protection that proponents have proffered is the recent changes in copyright duration within the European Community. "The changed rules pertaining to copyright duration are of critical practical importance to the international exploitation of existing works." [FN218] U.S. authors and works will, by operation of these changed rules, be discriminated against abroad. [FN219] Now that the EC Duration Directive has been implemented, U.S. copyright protection in Europe will be measured by "the rule of the shorter term." Songwriters, such as Don Henley, argue that if the U.S. does not act quickly to extend U.S. law, then Europe will get "essentially a twenty-year free-ride . . . they [will be able to] use and abuse our works for free, while we [will] have to pay for the use of theirs." [FN220] Since it is undisputed that American music is popular abroad, [FN221] this would result in an enormous loss in valuable trade dollars. [FN222]
Proponents argue that this proposed extension is true to the Constitutional grant of copyright. They argue that Congress must have the power to grant exclusive rights to authors for a term of life plus seventy years. They state that the "change is necessary to strengthen the economic incentives to our creators, to maintain our international trading position, to protect our investment in intellectual property and to help preserve our culture." [FN223] Therefore, this proposed term falls within the "broad and flexible" [FN224] requirement that the Framers set forth in Article I, section 8 of the U.S. Constitution, that Congress grant such rights "for limited Times." [FN225]
D. Public Interests at Work—Arguing Against Life Plus Seventy
Opponents argue that extending copyright weakens the "public domain" [FN236] and makes public access to works more difficult. [FN237] Although it is true that when a work passes into the "public domain" it does not necessarily become cheaper, [FN238] an extended term of copyright would shrink the informational commons that people turn to for information in educational or creative situations. [FN239]
Proponents argue that extra protection provides authors with the economic incentive to create. Yet this argument cuts both ways: authors must receive financial benefits from their works but they also must be free to create, i.e., have the requisite tools available. No creator would create if he or she was in constant fear of subconsciously infringing upon the work of another creator. [FN240] For these reasons the "public domain" is a source of real social value, and incursions should not be undertaken lightly. [FN241] The public domain should be of particular importance to the music industry because, as discussed above, "much music is based on public domain sources . . . . Popular songs resemble one another—there are only a finite number of possibilities for this genre." [FN242]
Another flaw in this "economic incentive to create" argument arises when one considers that the twenty year extension applies across the board. It extends the protection of works already in existence. To say that we need to extend the term of protection for works that the author has already created without the incentive of increased protection is simply fantastic. [FN243] An extension cannot be the incentive for works already in existence. [FN244]
Opponents argue, in response to proponents' claim of an entitlement to protection for two succeeding generations, that the U.S. has never subscribed to these goals. The U.S. does not consider copyright as a "natural right" as do many countries in continental Europe. [FN245] U.S. copyright law has never provided "a legacy for two generations" [FN246] nor did the Framers intend for it to do so. [FN247] In sum, why should an author need income for his or her grandchildren? [FN248] The United States has always viewed copyright primarily as a vehicle for achieving social benefit based on the belief that encouragement of individual effort by personal gain is the best way to advance the public welfare. [FN249] This philosophy distinguishes U.S. copyright law from that of other countries. [FN250] Accordingly, the opponents argue that many of the reasons given by the proponents to extend copyright can be dismissed due to the nature of the right that U.S. copyright law affords to authors. [FN251]
Opponents do, however, have a more difficult time addressing the argument that the extension is necessary for international trade purposes. [FN252] As the proponents cite, intellectual property is the United States' second largest export, [FN253] and as the opponents concede, the extra protection "will bring extra income to the owners of some internationally popular domestic works." [FN254] The threat of losing the trade surplus in copyrighted works, which stems in part from the success American works enjoy abroad, appears daunting at first glance. However, whether or not a U.S. copyright extension is the appropriate response to the EC Duration Directive is not as simple as the proponents argue. First, there is no data suggesting how many of the works that are approaching the end of their terms of protection and entrance into the public domain are truly still marketable abroad. The trade dollars that come from selling American music abroad probably comes from popular, newer works, not those on the verge of becoming ineligible for copyright protection. Second, United States copyright law currently protects certain types of works for longer terms than the EC Duration Directive. [FN255] For instance, even without the proposed extension, the U.S. copyright owner of a sound recording will be protected for "75 years from first publication or 100 years from creation whichever is shorter." [FN256] The EC affords only five extra years of protection to sound recordings. [FN257] Accordingly, in these situations where U.S. protection is greater, the rule of the shorter term would not operate to take away this fifty-year protection. [FN258] Third, even if the United States does extend its protection, the EC could refuse to honor copyright protection for U.S. authors on other grounds, such as inconsistencies between U.S. copyright law and the minimum standards mandated by the Berne Convention, i.e., failure to comply with the moral rights provisions. According to opponents of the extension, the "unequal" treatment that U.S. copyright owners may receive in Europe is not an excuse "for mimicking a bad European move that favors the owners of a few old, but economically valuable, copyrights over the interests of the general public." [FN259] There are also Constitutional arguments against a copyright term of this duration, but as one scholar has noted, these contitutionally-grounded arguments "for limitations on proprietary rights" are being rejected time and time again. [FN260]
Special interests are again at work in the promulgation of the proposed Copyright Term Extension Act. Economic reasons do make a strong case for extending copyright protection. Yet, if Congress allows economics to dictate the future of U.S. copyright laws, then the U.S. is not being true to the constitutional mandate regarding copyrights. [FN261] The only way this extension can be justified is if the economics of the extension promote the progress of science and the arts. The proposed extension promotes greed as creators or their assignees hope that an increase in copyright duration will enable them to receive a higher price. The public will pay the price if life plus seventy becomes the rule.
Summer 1996
Copyright © 1996 Hastings College of the Law; Jenny L. Dixon
II. American Copyright Law
"American copyright law is unique for the purpose of copyright is specifically stated in the U.S. Constitution." [FN39] The Framers, building upon English philosophies [FN40] and colonial copyright laws, [FN41] gave Congress the power "[t]o 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." [FN42] Hence, the Copyright clause [FN43] is both a source of and a limitation on Congressional power. [FN44]
Recent expansion of international copyright protection, combined with the impending passage of popular American musical works into the public domain, is a source of great concern to some Americans. [FN188] The United States, given its reputation as one of the world's leading exporters of intellectual property, has begun to reconsider its term of copyright protection in light of these international and domestic developments. [FN189] While the 1976 Act has been amended several times since it became effective, [FN190] the proposed Copyright Term Extension Act represents the first attempt to extend the duration of protection since the term was extended to life of the author plus fifty years. [FN191] In 1993, after the issuance of the Duration Directive, the U.S. began to contemplate an amendment to the duration provisions. The Copyright Office began conducting studies and held hearings inviting public comment before any legislation had been proposed. [FN192] The majority of the attendees were lyricists, composers, music publishers, record companies, and motion picture industry representatives. [FN193]
The proposed Copyright Term Extension Act extends the duration of protection given to authors, including lyricists and music composers, to a term consisting of the life of the author plus seventy years after the author's death. [FN194] The sponsors of the Act feel that an additional twenty years of protection is necessary to help U.S. intellectual property remain competitive abroad. [FN195] The proposed legislation provides an across the board twenty year increase in copyright terms. [FN196] For instance, works already in existence, if the author of the preexisting work is still alive, would receive a term of protection identical to those created in the future after the effective date of the Act. [FN197] Works in which the author is not alive would also receive an additional twenty years of protection, provided that the works have not already gone into the public domain. [FN198]
Those individuals who have an economic stake in the United States copyright system influence the legislative process because the system is abstract and difficult for the layperson to understand. Consequently, the proposed legislation in this case, as well as others, likely benefits the interested individuals. Proponents of the term extension argue that the current term does not provide the requisite protection, namely protection for the life of the author and two generations. [FN210] Increasing lifespans and the tendency to have one's children later in life, they argue, make life plus fifty years inadequate to meet this target term of protection. [FN211]
Opponents of the extension argue that traditionally, the Copyright Clause [FN226] has been given a much narrower interpretation than the one currently espoused by the proponents of this legislation. [FN227] Extensions of the duration of copyright protection have been gradual, and hotly debated, since Congress enacted the first copyright statute. [FN228] For instance, the United States was reluctant to increase copyright protection in 1909 because it felt that a term of "life plus fifty" was a departure from its traditional copyright roots. [FN229] Congress was reluctant to extend the duration of protection even though other Western countries had adopted this term or even longer terms. [FN230] It was not until sixty-nine years later that Congress approved the change from a fixed term to a longer term measured by the life of the author. [FN231] As one participant in the recent Congressional hearings revealed:
Each time the term of protection was increased in the past, there appeared to be ample justification for increasing the term . . . [T]oday the need to increase the copyright term is not as pressing as it was in 1831, 1909, or 1978 . . . . [FN232] Thus, opponents argue that the extension is premature and unwarranted at this time. Members of academic circles, who oppose the extension, claim to represent the interests of "the larger community of users of the 'public domain' materials." [FN233] They argue that typical music listeners and the users of other "public domain" materials are threatened by the proposed extension. [FN234] According to these critics, the fact that the support for the extension comes almost exclusively from the parties that benefit from a longer term of protection demonstrates that the proposed extension does not take the users' interests into account. [FN235]
V. Conclusion
# # #
FNa. J.D. Candidate, University of California, Hastings College of the Law, 1997; B.A., 1993, University of California, Irvine. The author would like to thank Professor Margreth Barrett for her comments and assistance.
FN39. Patterson & Lindberg, supra note 1, at 48.
FN40. Copyright was created in England under the Statute of Anne to protect publishers under the guise of protecting authors. The King had used British censorship laws, which "granted to the Stationers' Company...a monopoly over book publication,...to control the publication of seditious or heretical works. Publishers were given an exclusive and perpetual right of publication of works that passed muster with the Government and the Church...there was no intention to protect or reward authors." Gorman, supra note 36, at 1. The basic philosophy and contours of the Statute of Anne has dominated the United States copyright law "for most of our history as a nation." Id.
FN41. Under the Articles of Confederation, twelve of the thirteen original states had copyright statutes. Six of the states had modeled their duration provisions after the English Statute of Anne, which provided for an original term of fourteen years and a second term of fourteen years if the author was still living at the expiration of the first. The other six states adopted single terms providing protection for fourteen to twenty-one years. 1995 House Hearings, supra note 10, at 167 (statement of Marybeth Peters, Register of Copyright and Associate of Librarian for Copyright Services).
FN42. U.S. Const. art. I, s 8, cl. 8 (emphasis added).
FN43. Id.
FN44. Patterson & Lindberg, supra note 1, at 48; Gorman, supra note 36, at 1. See also Peter A. Jaszi, Impact of TRIPs Agreement on Specific Disciplines: Copyright Literary and Artistic Works: Goodbye to All That—A Reluctant (and Perhaps) Adieu to a Constituionally-Grounded Discourse in Copyright Law, 29 Vand. J. Transnat'l L. 595, 603 n.24 (1996).
FN45. Patterson & Lindberg, supra note 1, at 14.
FN46. The United States modeled its copyright law after the common law system as opposed to the authors' rights system. Peter Burger, The Berne Convention: Its History and Its Key Role in the Future, 3 J.L. & Tech. 1, 6 (1988). Authors' rights systems recognize two categories of rights: economic and moral rights. See generally Karen Y. Crabbs, The Future of Authors' and Artists' Moral Rights in America, 26 Beverly Hills B.A.J. 167 (1992); Patrick J. Zabatta, Moral Rights and Musical Works: Are Composers Getting Berned?, 43 Syracuse L. Rev. 1095 (1992). Since becoming a signatory to the Berne Convention, the United States is required to recognize moral rights, but in practice this recognition only extends to a limited range of works: "work[s] of visual art." 17 U.S.C.A. s 106A (West 1996). Accordingly, the United States' adherance to the Berne Convention remains questionable. The United States argues that it is in compliance with Article 6bis of the Berne Convention, which relates to moral rights, because domestic law already provides adequate protection. Zabatta, 43 Syracuse L. Rev. at 1100.
FN47. Stephen M. Stewart, International Copyright and Neighboring Rights 98-100 (1983). See also Burger, supra note 46, at 5.
FN48. Fox Film Corp. v. Doyal, 286 U.S. 123, 127 (1932).
FN49. Stewart E. Sterk, Rhetoric and Reality in Copyright Law, 94 Mich. L. Rev. 1197, 1199 (1996) (discussing the ever increasing gulf between copyright protection as a means to encourage creative activity and as a means to provide for the needs of the deserving author).
FN50. 1995 House Hearings, supra note 10, at 165 (statement of Marybeth Peters, Register of Copyrights and Associate of Librarian for Copyright Services, Library of Congress).
FN51. Patterson & Lindberg, supra note 1, at 49.
FN52. See generally Litman, Domain, supra note 11, at 965; Lange, supra note 11, at 147; Cohen, supra note 16, at 1180. In their articles, Litman, Lange, and Cohen examine the effect that the duration of protection granted by the 1976 Copyright Act, life of the author plus fifty, has had on the public domain. Their arguments and reasoning are applicable to the current debate over extending the duration of protection.
FN53. See L. Ray Patterson, Free Speech, Copyright, and Fair Use, 40 Vand. L. Rev. 1, 13-36 (1987) (arguing that the constitutional language, when interpreted within the historical context, directs Congress to establish a regulatory structure as opposed to a system of property rights). See also Cohen, supra note 16, at 1182.
FN54. Register of Copyrights, 87th Cong., 1st Sess., 1961 Report on the General Revision of the U.S. Copyright Law 5 (Comm. Print 1961), reprinted in 3 G. Grossman, Omnibus Copyright Revision Legislative History (1976).
FN55. U.S. Const. art. I, s 8, cl. 8
FN56. Cohen, supra note 16, at 1181.
FN57. Id.
FN58. Zechariah Chafee, Jr., Reflection on the Law of Copyright: II, 45 Colum. L. Rev. 719, 719 (1945).
FN59. Cohen, supra note 16, at 1181.
FN60. Id. at 1186.
FN61. Id. Authors would rather be compensated up front because the "'difference between a twenty years' term and a sixty years' term of posthumous copyright would have been nothing or next to nothing."' Chaffe, supra note 58, at 720.
FN62. Cohen, supra note 16, at 1181; See also Litman, Domain, supra note 11, at 965 (arguing that increased copyright protection adversely affects authors by contracting the public domain from which they subconsciously draw their inspiration). But see 1995 Senate Hearings, supra note 6 (statement of Senator Orrin Hatch) (arguing that the public domain is not more plentiful when works fall out of copyright protection because ownership of a work creates the incentive to exploit it and preserve it in high quality form).
FN63. Litman, Domain, supra note 11, at 966-67. During the creative process, an author draws upon her memories, experiences, inspirations, and influences in creating a new work. Subjecting the author to suit for this subconscious infringement is going to have some negative effect upon the author's decision to create and what to create. Id. The public domain is particularly important for the music industry because "[m]uch music is based on public domain sources.... Popular songs resemble one another—there are only a finite number of possibilities for this genre." Leaffer, supra note 29, at 88.
FN64. Cohen, supra note 16, at 1183-84 (recounting Holmes' views on copyright in White-Smith Music Co. v. Apollo Co., 209 U.S. 1, 19 (1907)).
FN65. 17 U.S.C. ss 101-20, 302-05 (1994).
FN66. Litman, Domain, supra note 11, at 970. Moral rights also raise issues regarding the appropriate duration of protection. An extensive discussion of the differences between U.S. and authors' rights countries views is beyond the scope of this Note.
FN67. Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984).
FN68. Bach, supra note 31, at 382. But see Patterson & Lindberg, supra note 1, at 77 (stating that "[t]he 1909 act mark[ed] the...change from the nineteenth-century view that copyright was more regulatory than proprietary to the contemporary consensus—whether or not sound—that copyright is more proprietary than regulatory." The authors cite the creation of the compulsory licensing scheme in section 115 for musical works as an example of the shift from statutory right to property right).
FN188. 1995 House Hearings, supra note 10, at 205 (statement of Ambassador Charlene Barshefsky, U.S. Trade Representative).
FN189. The Copyright Office began conducting hearings and studies after the European Community reached a final agreement in June of 1993 regarding life plus seventy as a uniform standard of copyright duration, and the Committee of Experts on a Possible Protocol to the Berne Convention began discussing the possibility of life plus seventy as the new minimum standard of protection. Copyright Office Considers Life Plus 70 Years, 11 J. of Proprietary Rts. 30, 31 (Nov. 1993).
FN190. The Berne Convention Implementation Act of 1988 is just one of these amendments. See BCIA, supra note 89.
FN191. 1995 House Hearings, supra note 10, at 161 (statement of MaryBeth Peters, Register of Copyrights and Associate Librarian for Copyright Services, Library of Congress).
FN192. Copyright Office Considers Life Plus 70 Years, supra note 189, 30-31.
FN193. Id.
FN194. S. 483, 104th Cong., 1st Sess. s 2(b)(1) (1995); H.R. 989, 104th Cong., 1st Sess. s 2(b)(1) (1995).
FN195. 1995 Senate Hearings, supra note 6 (statement of Senator Orrin Hatch); 1995 House Hearings, supra note 10, at 2 (statement of Representative Carlos Moorhead).
FN196. S. 483, 104th Cong., 1st Sess. ss 2, 3 (1995); H.R. 989, 104th Cong., 1st Sess. ss 2, 3 (1995).
FN197. Orrin Hatch, Copyright Term Extension Act, Congressional Press Releases, March 1, 1995, available in LEXIS, News Library, Curnews File.
FN198. S. 483, 104th Cong., 1st Sess. s 2(d) (1995); H.R. 989, 104th Cong., 1st Sess. s 2(d) (1995).
FN199. 17 U.S.C. s 101 (1994); see note 109 supra.
FN200. S. 483, 104th Cong., 1st Sess. ss 2(b)(3), 2(d) (1995); H.R. 989, 104th Cong., 1st Sess. ss 2(b)(3), 2(d)(1995).
FN201. Id.
FN202.S. 483, 104th Cong., 1st Sess. ss 2(b)(4), 2(d) (1995); H.R. 989, 104th Cong., 1st Sess. ss 2(b)(4), 2(d)(1995).
FN203. 17 U.S.C. s 101 (1994) provides that "[a]n anonymous work is a work on the copies or phonorecords of which no natural person is identified as author."
FN204. 17 U.S.C. s 101 (1994) provides that "[a] 'pseudonymous work' is a work on the copies or phonorecords of which the author is identified under a fictitious name."
FN205. S. 483, 104th Cong., 1st Sess. s 2(b)(3) (1995); H.R. 989, 104th Cong., 1st Sess. s 2(b)(3) (1995).
FN206. See generally 1995 Senate Hearings, supra note 6 (statements of songwriters Don Henley, Quincy Jones, Bob Dylan, and Carlos Santana).
FN207. 1995 House Hearings, supra note 10, at 272-73 (statement of Mary Ellin Barrett, daughter of composer Irving Berlin).
FN208. 1995 Senate Hearings, supra note 6 (statement of Senator Orrin Hatch).
FN209. See 1995 Senate Hearings, supra note 6 (statement of Professor Peter Jaszi); 1995 House Hearings, supra note 10, at 292-311 (statement of Professor Dennis S. Karjala).
FN210. 1995 House Hearings, supra note 10, at 272 (statement of Mary Ellin Barrett, daughter of composer Irving Berlin).
FN211. Id. at 235 (statement of songwriter Quincy Jones).
FN212. 1995 Senate Hearings, supra note 6 (statement of Senator Orrin Hatch).
FN213. 1995 House Hearings, supra note 10, at 235-36, 240 (statements of Quincy Jones and Bob Dylan).
FN214. 1995 Senate Hearings, supra note 6 (statement of Shana Alexander, writer and daughter of songwriter Milton Ager). She also states that "in a family such as ours intellectual property is the only property." Id.
FN215. 1995 House Hearings, supra note 10, at 248 (statement of Ellen Donaldson, Vice President of Donaldson Publishing Company).
FN216. Id. at 272 (statement of Mary Ellin Barrett, daughter of composer Irving Berlin).
FN217. 1995 Senate Hearings, supra note 6 (statement of Don Henley, songwriter).
FN218. Brownlee, supra note 23, at 585.
FN219. Id.
FN220. 1995 House Hearings, supra note 10, at 241 (statement of Don Henley, songwriter).
FN221. "European audiences have always enthusiastically welcomed American popular musicians. They buy our records, they play our music over the airways and they attend our concerts." Id. at 240 (statement of Bob Dylan, songwriter).
FN222. "Copyright term extension is very much in America's economic interest. Along with our country's interest in maintaining the trade surplus we currently enjoy in the area of intellectual property, I respectfully urge this Congress to also consider the prospective loss of American culture ...." 1995 House Hearings, supra note 10, at 245 (statement of Ellen Donaldson, vice president of Donaldson Publishing Company).
FN223. See Price, supra note 13, at A2; 1995 Senate Hearings, supra note 6 (statement of Senator Orrin Hatch).
FN224. Senator Orrin Hatch argues that the copyright and patent clause should be interpreted broadly and flexibly to be true to the Framers' intent. 1995 Senate Hearings, supra note 6 (statement of Senator Orrin Hatch).
FN225. U.S. Const. art. I, s 8, cl. 8.
FN226. Id.
FN227. See supra text accompanying notes 39-68 (discussing historical origins of American copyright law).
FN228. See supra text accompanying notes 69-80 (discussing early copyright statutes).
FN229. 1995 House Hearings, supra note 10, at 168 (statement of Marybeth Peters).
FN230. Id.
FN231. Id. at 170.
FN232. Id. at 215 (statement of Bruce A. Lehman, Asst. Secretary of Commerce and Commissioner of Patents and Trademarks)(favoring the extension after balancing the benefits and detriments).
FN233. 1995 Senate Hearings, supra note 6 (statement of Professor Peter Jaszi).
FN234. Id.
FN235. The expansion of Twentieth Century copyright protection is a product of "the interests of small but organized groups [rather] than the interests of the public at large." Stewart E. Sterk, Rhetoric and Reality in Copyright Law, 94 Mich. L. Rev. 1197, 1244-45 (1996).
FN236. See generally Litman, Domain, supra note 11.
FN237. 1995 Senate Hearings, supra note 6 (statement of Professor Peter Jaszi).
FN238. Id. (statement of Quincy Jones, songwriter); 1995 House Hearings, supra note 10, at 217-18 (statement of Bruce A. Lehman, Asst. Secretary of Commerce and Commissioner of Patents and Trademarks).
FN239. See generally Litman, Domain, supra note 11, at 1019.
FN240. Id. Copyright infringement is a strict liability offense; there is no intent or knowledge requirement.
FN241. 1995 Senate Hearings, supra note 6 (statement of Professor Peter Jaszi).
FN242. Leaffer, supra note 29, at 88.
FN243. See Sterk, supra note 235, at 1197.
FN244. 1995 House Hearings, supra note 10, at 292 (statement of Professor Dennis Karjala).
FN245. 1995 Senate Hearings, supra note 6 (statement of Professor Peter Jaszi).
FN246. Id.
FN247. See supra text accompanying notes 39-55 (discussing historical origins of American copyright law).
FN248. "[A]n advantage that is to be enjoyed more than half a century after we are dead, by somebody we know not whom, perhaps by somebody unborn, by somebody utterly unconnected with us, ir really no motive at all to action...." Chafee, supra note 58, at 719 (citing 8 Macauly, Works (Trevelyn ed. 1879) 199-201).
FN249. 1995 Senate Hearings, supra note 6 (statement of Professor Peter Jaszi).
FN250. 1995 House Hearings, supra note 10, at 294 (statement of Professor Dennis Karjala); See also supra text accompanying notes 126-136 (discussing how the underlying philosophical differences between common law copyright and authors' rights countries posed a challenge to the success of the Berne Convention).
FN251. 1995 House Hearings, supra note 10, at 290-91 (statement of Professor Dennis Karjala).
FN252. 1995 Senate Hearings, supra note 6 (statement of Professor Peter Jaszi).
FN253. Id. (statement of Senator Orrin Hatch).
FN254. Id. (statement of Professor Peter Jaszi).
FN255. 1995 House Hearings, supra note 10, at 216 (statement of Bruce A. Lehman, Asst. Secretary of Commerce and Commissioner of Patents and Trademarks).
FN256. Id.
FN257. Id.
FN258. Id.
FN259. Id. at 291 (statement of Professor Dennis Karjala).
FN260. Jaszi, supra note 44, at 596.
FN261. U.S. Const. art. I, s 8, cl. 8.
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