Use Copyright Extension to Endow Creativity

The mother lode of creative work from the early days of film and sound recording will soon begin to enter the public domain. This potentially enormous wealth--several billion dollars, probably--could be used to support the community of artists and scholars from which it ultimately derives. But Congress is considering a bill that would essentially transfer the wealth from the public domain to the pockets of private corporations and individuals. It would be a serious loss if the decision to give the money away were not joined to the debate about how we support creativity in the United States.

A 1994 proposal from Sen. Christopher J. Dodd (D-Conn.) lays out an ingenious way to use the value of past intellectual property to support artists and scholars working today. The “Arts Endowing the Arts Act” would add 20 years to the term of copyright protection and use the income from those extra years to underwrite current creative work.

At present, U.S. copyright protects an individual’s work for his or her lifetime, plus 50 years; corporations with works “made for hire” (most films, for example) hold rights for 75 years. Under Dodd’s proposal, at the end of each of these terms, the rights to an additional 20 years would be publicly auctioned, the proceeds going to build an endowment dedicated to the arts and humanities.

Sen. Orrin G. Hatch (R-Utah) is sponsoring a bill that would similarly extend the term of copyright for 20 years, but the proceeds of this windfall would go to current rights holders. Supporters of Hatch’s bill point out that the European Union has directed its member states to unify their terms of copyright at “life plus 70 years,” and they contend that many benefits would follow if we did the same, chief among them an increase in the U.S. balance of trade. They also contend that many countries follow “the rule of the shorter term” when foreign and local laws differ; thus, if the U.S. term is shorter, Americans would forfeit income they might otherwise have earned abroad.

None of these arguments holds up under scrutiny. The arithmetic doesn’t make sense, for one thing. Corporations owning made-for-hire works currently hold copyrights for 75 years; under Hatch’s bill, the term would run 95 years, a welcome change for ASCAP and the Motion Picture Assn., but not one that brings U.S. law into harmony with European law. To do that would mean reducing the work-for-hire term by five years, not adding 20 to it.

As for gains in the balance of payments or losses under the “rule of the shorter term,” we should remember that Europeans are not the only consumers who would pay for this change. The bulk of the cost of this corporate handout would be borne by U.S. citizens, who would be obliged to continue paying royalties for works that would have otherwise become common property. In this light, to extend copyright for 20 years amounts to an unprecedented taking from the public sphere--as if Congress were to hand the deed to Yellowstone Park to a mining company, asking nothing in return.

Since its beginnings in the 18th century, U.S. copyright law has sought to balance private gain and public good. It is a bargain struck between the state and the makers of intellectual and artistic property; the state makes sure creative citizens get paid if someone uses their work, and it puts the courts and the police at their disposal to protect their interests. In exchange, it asks that the work eventually become a public good, one all citizens may use without fee. This bargain is well put in the U.S. Constitution, which allows Congress to grant “exclusive right” to authors and inventors “for limited times,” “exclusive” so that creators may benefit short term, but “limited” so that the public may benefit long term.

If Congress now wants to change the terms of copyright, the crucial question to ask is not whether it would be harmonious with Europe’s, but whether the constitutional mandate to balance private and public good would be upheld. The beauty of the Dodd proposal is that it not only addresses issues set in motion by Europe’s longer term, but it does so without any theft from the public side of the scale. It adds a middle term between public and private, a transition period during which we designate as “the public” that community of artists and scholars whose calling already makes them the initial heirs of our cultural patrimony.

It would be best if the income from such a plan went to build endowments for the National Endowment for the Arts and the National Endowment for the Humanities so they might eventually be free of their reliance on congressional funding. For many years, supporters of the arts have sought some way in which the arts and humanities might benefit from their own streams of wealth, rather than having to go begging for tax dollars. The American creative community already has riches and income. It needs only institutions designed to translate some of that wealth into support for those who labor today to create the cultural riches that will be passed on tomorrow.

By extending copyright to help build the endowments, Congress can create such an institution. If, on the other hand, it extends copyright with no regard for the public domain, it will have done little more than sponsor a remarkable theft.