Cite as: 30 U. Mem. L. Rev. 363 University of Memphis Law Review Winter, 2000 Note



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[FN152]. See id.

[FN153]. See id.

[FN154]. See Senator Orrin G. Hatch, Toward a Principled Approach to Copyright Legislation at the Turn of the Millennium, 59 U. PITT. L. REV. 719, 729 (1998).

[FN155]. See Dixon, supra note 30, at 975.

[FN156]. See id. at 974.

[FN157]. See Hatch, supra note 154, at 734.

[FN158]. See 144 Cong. Rec. S12377-01 (daily ed. Oct. 12, 1998) (statement of Sen. Hatch).

[FN159]. Id.

[FN160]. Id.

[FN161]. See Lavigne, supra note 63, at 330-31.

[FN162]. 141 Cong. Rec. S3391 (daily ed. Mar. 2, 1995) (statement of Sen. Hatch).

[FN163]. 144 Cong. Rec. S12377-01 (daily ed. Oct. 12, 1998) (statement of Sen. Hatch).

[FN164]. See Lavigne, supra note 63, at 330-31.

[FN165]. Hatch, supra note 154, at 729 (citing S. REP. NO. 94-473, at 118 (1975)).

[FN166]. See 144 Cong. Rec. S12377-01 (daily ed. Oct. 12, 1998) (statement of Sen. Hatch).

[FN167]. See id.

[FN168]. Council Directive 93/98, 1993 O.J. (L 290) [hereinafter EC Directive]. "Where the country or origin of a work ... is a third country ... the term of protection granted by the Member States shall expire on the date of expiry of the protection granted in the country of origin ... but may not exceed the term laid down in [this Directive]." Id.

[FN169]. See id.

[FN170]. Copyright Term Extension Act: Hearings on S. 483 Before the Senate Judiciary Comm., 104th Cong. (1995) [hereinafter Hearings on S. 483] (statement of songwriter Don Henley).

[FN171]. 141 Cong. Rec. E379 (daily ed. Feb. 16, 1995) (statement of Rep. Moorhead).

[FN172]. Hearings on S. 483, supra note 170 (statement of songwriter Bob Dylan). "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.

[FN173]. See Hatch, supra note 154, at 732.

[FN174]. Dixon, supra note 30, at 974 (citing Hearings on S. 483, supra note 170 (statements of songwriters Quincy Jones and Bob Dylan)).

[FN175]. See Hatch, supra note 154, at 733.

[FN176]. See id.

[FN177]. See Lavigne, supra note 63, at 331-32.

[FN178]. See Hatch, supra note 154, at 733-34.

[FN179]. See id. at 734.

[FN180]. Hearings on S. 483, supra note 170 (statement of Marybeth Peters, Register of Copyrights).

[FN181]. See The Copyright Term Extension Act, Hearings on H.R. 989 Before the Subcomm. on Courts and Intellectual Property of the House Comm. on the Judiciary, 104th Cong. 272 (1995) (statement of Mary Ellin Barrett, daughter of Irving Berlin).

[FN182]. See Hatch, supra note 154, at 734.

[FN183]. See id.

[FN184]. See id.

[FN185]. Id. at 735. This philosophy is a misinterpretation of the framers' intent in the grant of copyright. To say that authors should be given as much of a monopoly as needed to stimulate creativity is much different than giving them as much of a monopoly as possible without hindering dissemination. In this Author's view, Senator Hatch is misguided in his understanding of the purpose of copyright law as set forth by the Framers of the Constitution.

[FN186]. See Dennis S. Karjala, Statement of Copyright and Intellectual Property Law Professors in Opposition to H.R. 604, H.R. 2598, and S. 505, "The Copyright Extension Act" (last modified Sept. 17, 1999) .

[FN187]. S. 505 was signed into law on October 27, 1998.

[FN188]. See Karjala, supra note 186.

[FN189]. See id.

[FN190]. See id.

[FN191]. No. CA 99-0065, 1999 WL 1034474 (D.D.C. Oct. 28, 1999).

[FN192]. See id. at *1. Eric Eldred, owns and operates Eldritch Press, Inc., an Internet site that makes the text of books available to the public for free on the Internet, once the books have fallen into the public domain. See id. Because of the CTEA, Eldred's web site cannot post books that were to fall into the public domain from the end of 1998 until 2018. See id. Eldred has filed suit in federal district court against Janet Reno in her official capacity as Attorney General of the United States, claiming inter alia that the CTEA is unconstitutional. See id.

[FN193]. See id. at *2.

[FN194]. See supra Part IV.B.1.

[FN195]. See Dennis S. Karjala, Opposing Copyright Extension (last modified Mar. 10, 1999) .

[FN196]. Id. (citing Patry, supra note 22, at 907-33).

[FN197]. See Dennis S. Karjala, Statement of Timothy Phillips in Opposition to Copyright Term Extension (last modified Nov. 13, 1999) .

[FN198]. See id.

[FN199]. See supra Part IV.B.2.

[FN200]. See 17 U.S.C. § 302(a) (1994); H.R. 989, 104th Cong. § 2(b)(1) (1995).

[FN201]. Lavigne, supra note 63, at 335.

[FN202]. See id. at 333. See generally Reichman, supra note 54; Shauna C. Bryce, Life Plus Seventy: The Extension of Copyright Terms in the European Union and Proposed Legislation in the United States, 37 HARV. INT'L L.J. 525 (1996).

[FN203]. The United States term for anonymous and pseudonymous works under the CTEA is 95 years from first publication or 120 years from creation, whichever is shorter. See supra notes 110-11 and accompanying text. The European term for such works is 70 years after publication. See EC Directive, supra note 168, at art. 1, para. 3. Thus, by extending the term of United States protection, the CTEA increases the disparity between the United States and European laws rather than harmonizing them in this situation.

[FN204]. The United States term for works made for hire under the CTEA is 95 years from first publication or 120 years from creation, whichever is shorter. See supra notes 110-11 and accompanying text. Most countries in Europe do not recognize a category of works made for hire, and those that do grant protection for a period 70 years from first publication. See EC Directive, supra note 168, at art. 1, para. 4. Once again, in the case of works made for hire, the CTEA increases the discrepancy between the United States and European laws.

[FN205]. 2 M. NIMMER & D. NIMMER, NIMMER ON COPYRIGHTS § 8D.02[A], at 8D-10 (1995).

[FN206]. The Berne Convention adopts the moral rights philosophy which it defines as:

Independently of the author's economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honour or reputation.



Berne Convention for the Protection of Literary and Artistic Works, Sept. 9. 1886, revised Paris, July 24, 1971, 25 U.S.T. 1341.

[FN207]. See 17 U.S.C. § 106(A) (1994 & Supp. 1997). Many member nations of the Berne Convention were opposed to the admission of the United States because they felt that adoption of this law was not sufficient to meet the requirements of membership. See supra note 54. For a discussion of the natural (moral) rights influence on United States copyright law, see supra Part II.B.3.

[FN208]. See Lavigne, supra note 63, at 337-38.

[FN209]. See supra Part IV.B.3.

[FN210]. The legislative history of the Copyright Act seeks to ensure "an author and his dependents the fair economic benefits" from their work, but nowhere in the history is there reference to an author's right to benefits to support two succeeding generations of his heirs. H.R. REP. No. 94-1476, at 134 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5750 (emphasis added); see also Lavigne, supra note 63, at 347-49 (citing Copyright Act of 1976, Pub. L. No. 94-553, 90 Stat. 2541 (1976) (codified at 17 U.S.C. § § 101-810 (1994 & Supp. 1997)).

[FN211]. Copyright Term Extension Act: Hearings on H.R. 989 Before the Subcomm. on Courts and Intellectual Property of the House Comm. on the Judiciary, supra note 181 (statement of Dennis S. Karjala, Professor of Law, Arizona State University).

[FN212]. Id.

[FN213]. See supra Part IV.B.3.

[FN214]. See 17 U.S.C. § 304(c) (1994 & Supp. 1997).

[FN215]. See Karjala, supra note 186.

[FN216]. See id. (emphasis added).

[FN217]. See supra Part IV.B.3.

[FN218]. See Hamilton, supra note 60, at 169.

[FN219]. See id. at 168.

[FN220]. See Karjala, supra note 197.

[FN221]. Copyright Term Extension Act: Hearings on H.R. 989 Before the Subcomm. on Courts and Intellectual Property of the House Comm. on the Judiciary, supra note 181, at 12 (statement of Dennis S. Karjala, Professor of Law, Arizona State University).

[FN222]. See supra Part IV.B.4.

[FN223]. See Karjala, supra note 186.

[FN224]. See infra Part V.C.3.

[FN225]. See Karjala, supra note 186.

[FN226]. Copyright Term Extension Act: Hearings on H.R. 989 Before Subcomm. on Courts and Intellectual Property of the House Comm. On the Judiciary, supra note 181, at 12 (statement of Dennis S. Karjala, Professor of Law, Arizona State University).

[FN227]. Id.

[FN228]. See Hatch, supra note 154, at 737.

[FN229]. Karjala, supra note 186 (citation omitted).

[FN230]. See id.

[FN231]. See id.

[FN232]. Id.

[FN233]. See Douglas Geomery, Report: The Economics of Term Extension for Motion Pictures, Submitted to Copyright Office Docket No. RM93-8, Notice of Inquiry on Duration of Copyright Terms of Protection, Nov. 26, 1993.

[FN234]. M. WILLIAM KRASILOVSKY & SIDNEY SHEMEL, THIS BUSINESS OF MUSIC (7th ed. 1995).

[FN235]. See Paul. J. Heald, Reviving the Rhetoric of the Public Interest: Choir Directors, Copy Machines, and New Arrangements of Public Domain Music, 46 DUKE L.J. 241, 245 n.23 (1996).

[FN236]. See Berkman Center for Internet and Society, Music (last modified Apr. 13, 1999) ; Karjala, supra note 186.

[FN237]. See Karjala, supra note 186.

[FN238]. See Lavigne, supra note 63, at 325.

[FN239]. See id. at 350-52.

[FN240]. See Eldred v. Reno, No. CA 99-0065, 1999 WL 1034474, at *3 (D.D.C. Oct. 28, 1999). The court stated that "[i]n so far as the public trust doctrine applies to navigable waters and not to copyrights, the retroactive extension of copyright protection does not violate the public trust doctrine." Id.

[FN241]. Berkman Center for Internet and Society, A Brief Statement of the Relevance of the Public Trust Doctrine to the CTEA (last modified Apr. 11, 1999) (citing Illinois Cent. R.R. Co. v. Illinois, 146 U.S. 387, 453 (1892)) [hereinafter A Brief Statement of the Relevance].

[FN242]. See Berkman Center for Internet and Society, Public Trust Doctrine (last modified Apr. 11, 1999) .

[FN243]. Berkman Center for Internet and Society, The Internet and the Public Trust (last modified Apr. 11, 1999) .

[FN244]. See Berkman Center for Internet and Society, The Public Trust Doctrine and Constitutional Arguments (last modified Apr. 11, 1999) .

[FN245]. See A Brief Statement of the Relevance, supra note 241.

[FN246]. See id.

[FN247]. See Complaint, Eldred v. Reno, 1999 WL 1034474 (D.D.C. 1999) (No. CA 99-0065).

[FN248]. U.S. Const. art. I.§ 8, cl. 8.

[FN249]. See Lavigne, supra note 63, at 352.

[FN250]. See supra Part II.B.

[FN251]. See Richard A. Epstein, Constitutionality of Copyright Term Extension: Congress's Copyright Giveaway, WALL ST. J., Dec. 21, 1998, at A19.

[FN252]. Stephen R. Barnett, Letters to the Editor: Why Should We Seize an Author's Property?, WALL ST. J., Jan. 8, 1999, at A19 (responding to and agreeing with Epstein, supra note 251).

[FN253]. See Lavigne, supra note 63, at 353.

[FN254]. 383 U.S. 1 (1966).

[FN255]. Id. at 5-6.

[FN256]. See Dennis S. Karjala, Challenge to Constitutionality (last modified Nov. 13, 1999) .

[FN257]. See id.

[FN258]. See 2 SHELDON HALPERN ET AL., COPYRIGHT 6 (1992).

[FN259]. 829 F.2d 1152 (D.C. Cir. 1987).

[FN260]. See id. at 1170.

[FN261]. Id. at 1169 (citations omitted).

[FN262]. See id. at 1171.

[FN263]. See Lavigne, supra note 63, at 357-58.

[FN264]. See supra note 21 and accompanying text.

[FN265]. Lavigne, supra note 63, at 358.

[FN266]. Hearings on S. 483, supra note 170 (statement of Professor Peter Jaszi, Professor of Law, American University).

[FN267]. See id.

*403 APPENDIX
112 STAT. 2827 PUBLIC LAW 105-298--OCT. 27, 1998 Public Law 105-298 105th

Congress
An Act To amend the provisions of title 17, United States Code, with respect to the duration of copyright, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

TITLE I--COPYRIGHT TERM EXTENSION



SEC. 101. SHORT TITLE.

This title may be referred to as the "Sonny Bono Copyright Term Extension Act".

SEC. 102. 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

*404 (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 *405 TERM AT THE TIME OF THE EFFECTIVE DATE OF THE SONNY BONO COPYRIGHT TERM EXTENSION ACT.--Any copyright still in its renewal term at the same time that the Sonny Bono Copyright Term Extension Act 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 SONNY BONO COPYRIGHT TERM EXTENSION ACT.--In the case of any copyright other than a work made for hire, subsisting in its renewal term on the effective date of the Sonny Bono Copyright Term Extension Act 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 *406 subsections (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 Sonny Bono Copyright Term Extension Act."

(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 AMENDMENTS ACT OF 1992.--Section 102 of the Copyright Amendments 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 Sonny Bono Copyright Term Extension Act"; 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. 103. 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: *407 "(D) In the event that the author's widow or widower, children, and grandchildren are not living, the author's executor, administrator, personal representative, or trustee shall own the author's entire termination interest.".

SEC. 104. 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.".



*408 SEC. 105. 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 title, 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. 106. EFFECTIVE DATE.

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


END OF DOCUMENT


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