One of the most frequent criticisms of the Report's recommendations on duration was directed to their "appalling complexity," which was partly the result of the difficulties of conforming a straight-term copyright system with our treaty obligations under the Universal Copyright Convention. There seems little point now in outlining those recommendations in detail or in reviewing the specific arguments for and against them. It is enough to say that, in general, the Report recommended lengthening the present maximum term of 56 years from publication to a total term of 76 years from "public dissemination." It would have kept the present initial term of 28 years and lengthened the second period to 48 years, retaining the requirement for renewal as a basis for adjusting the term but greatly liberalizing and simplifying the renewal requirements.

There was practically no support for these recommendations, and the overwhelming (though not unanimous) sentiment favored a copyright term based on the author's life plus 50 years. The arguments in support of a life-plus-50 system can be summarized as follows:

(1) The present term not only needs to be lengthened to take account of the substantial increase in life expectancy since 1909, but as a matter of fairness it should insure that an author during his lifetime, and his dependents after his death, get the economic benefits available from his works. Within limits a longer term is no disadvantage to the public, which pays the same for copyrighted works and works in the public domain; in fact, the absence of copyright protection can actually restrain dissemination in some cases, since an entrepreneur might not be able to risk an investment in a work unless he can be assured of exclusive rights. The fact that less than 15 percent of copyrighted works are renewed is not illuminating, since the remaining 85 percent primarily represent ephemera which no one is interested in using in any case.

(2) A copyright term of the life of the author and 50 years after his death has been adopted in the very large majority of foreign countries outside the Communist bloc. The ease and rapidity with which copyrighted materials can be transmitted across national boundaries are growing tremendously, and it is therefore increasingly important to have the duration of U.S. copyright conform to that prevalent abroad. At present American authors are often protected longer in foreign countries than they are in their own, leading to understandable resentment and occasional threats of retaliation. In addition to the advantages of certainty and simplicity in business dealings, a change in the basis of the copyright term could not fail to improve our international copyright relations and lead to closer ties that would directly benefit American and foreign authors alike.

(3) A life-plus-50 term would largely avoid the confusion and uncertainties involved in vague concepts such as "publication" or "public dissemination," and would provide a much simpler, more clearly understood system for computing the term. Since the copyrights in all of an author's works would expire at once there would generally be only one date to worry about, and an elderly author would not be put in the unfair position of competing with his own early works, or those of his contemporaries, that have fallen into the public domain. In the case of a work successively revised by the same author,

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a single expiration date would avoid questions of what parts of a revised edition were published when. The problems of determining when an obscure author died could be solved by maintaining a registry of death dates in the Copyright Office and by establishing a system of presumptions.

(4) The present renewal provision is extremely burdensome, not only as a needless formality and as an expense, but also as the cause of inadvertent and unjust loss of copyright in a number of cases. Under a term of life-plus50 years the renewal device would be inappropriate and unnecessary. In general we agree with these arguments and we find the second one-the effect on our international relations of adopting a life-plus term-of compelling importance. The 1965 bill therefore adopts a basic term of copyright beginning upon the creation of a work and enduring for the life of its author and for 50 years after his death.

2. WORKS CREATED AFTER NEW LAW'S EFFECTIVE DATE

a. In General

Section 302 (a) sets forth the basic term for "a work created on or after January 1, 1967," which is the date used throughout the bill to represent the date when the revised statute comes into effect. It provides that copyright in such a work "subsists from its creation and, except as provided by the following subsections, endures for a term consisting of the life of the author and 50 years after his death." Section 101 makes clear that "[a] work is 'created' when it is fixed in a copy or phonorecord for the first time"; before it is fixed (as in the case, for example, of an impromptu speech), the work is subject to common law protection, but thereafter it is automatically protected by the statute and subject to its requirements.

Under some foreign laws the life-plus-50 term applies only to works published during their authors' lifetimes, and posthumous works are accorded a special copyright term based on the date of their first publication. The result of this, much like our present common law copyright system, is to give perpetual rights to works that remain unpublished. We believe that the "limited times" requirement of the Constitution prohibits our adoption of any provision that gives statutory protection to unpublished works without a time limit, and we can see no need to deal with "posthumous works" as a special class for purposes of computing the term. Thus, as a general rule, the lifeplus-50 term would apply equally to unpublished works, to works published during the author's life, and to works published posthumously. b. Joint Works

Section 302(b) provides, in the case of "a joint work prepared by two or more authors who did not work for hire," that "the copyright endures for a term consisting of the life of the second of the authors

to die and fifty years after his death." This is in contrast to the provisions in many foreign laws which measure the term from the death of the last survivor of a group of joint authors, no matter how many of them there are. The result under these laws is to extend the copyright term in all parts of a joint work beyond the limits that would normally apply to some parts if separated: for example, a joint work written in 1970, in part by an author who died in 1980 and in part by a younger author who dies in 2035, would be protected in its entirety until 2085.

It has been argued that, if this result is provided for, an old author could be induced to set up dubious "collaboration" arrangements with a much younger person simply in order to prolong his copyrights. Although this may be true, we believe it would more often be unfair to the survivor of two joint authors, and to his family, if the term were computed from the date the first author died.

One reason for not adopting the rule in effect in other countries, that the death of the last survivor is the base point for computing the term, arises from the differing concepts of "joint works” under U.S. law and under the laws of most foreign countries. Even under the bill's definition of "joint work" (which, as pointed out in chapter 3, is more limited than that implied in some court decisions), the concept is much broader than that adopted in other countries where a work having separable parts is not a joint work: to take one famous example, the works of Gilbert and Sullivan were not considered "joint" under foreign laws. In consequence, many "joint works" under the bill would not be considered such in other countries; and this would be true especially of works, such as musical plays, of which three or more authors write parts.

That was not, however, our basic reason for rejecting the last-to-die rule. Much more important in our view are the practical problems that would face users many years from now: not only would they have to determine the identity of all of the authors of a "joint work," but they would have to make sure that all of them had been dead for at least 50 years. Our thought in ending the term 50 years after the death of the second author was to enable a user to proceed when he has determined that any two of the authors had died more than 50 years earlier.

Under the bill a "joint work" written by "two or more authors who did not work for hire" is covered by the term provided in section 302(b), even if other contributions to the "joint work" were "made for hire." However, the bill does not explicitly cover the case where a "joint work" was written by two persons, one of whom was an employee for hire. In this situation the provisions of subsection (b) would not apply; the term would be based on subsection (a) (the life

of the individual author plus 50 years) or on subsection (c) (75 years from publication or 100 years from creation), whichever is longer. Although this situation is by no means rare, it seemed unnecessary to burden the bill with a special provision dealing with it.

c. Anonymous Works, Pseudonymous Works, and Works Made for

Hire

A term based on the author's death cannot be applied when, as in the case of a work made for hire, the "author" is not an individual, or when the identity of the individual author is not revealed. Accordingly, section 302 (c) of the bill provides that, in the case of an "anonymous work, pseudonymous work, or a work made for hire, the copyright endures for a term of 75 years from the year of its first publication, or a term of 100 years from the year of its creation, whichever expires first." Section 101 defines an "anonymous work" as "a work on the copies or phonorecords of which no natural person is identified as author," and a "pseudonymous work" as "a work on the copies or phonorecords of which the author is identified under a fictitious name." If, under section 302(c), "the identity of one or more of the authors of an anonymous or pseudonymous work is revealed in the registration or other public records of the Copyright Office" before expiration of the term specified in that subsection, the copyright will endure for the ordinary "term specified in subsections (a) or (b), based on the life of the author or authors whose identity has been revealed." Thus, although a work written under a wellknown pseudonym would still be a "pseudonymous work" under the definition, it would not be governed by the 75/100-year term provisions of subsection (c) as long as any of the public records of the Copyright Office reveal the author's identity.

The term for anonymous and pseudonymous works and for works made for hire is set forth in the alternative: either 75 years from publication or 100 years from creation, whichever is shorter. Under subsection (c), for example, copyright in a work created in 1970 and published in 1980 would expire in 2055 (75 years from publication), whereas copyright in a work created in 1970 and published after 2005 (or never published) would expire in 2070 (100 years from creation). Establishment of an alternative to "publication" as the base point for computing the term in these cases is not only desirable in order to set some limit on exclusive rights in unpublished manuscript material, but it is also required by the "limited times" provision of the Constitution. The only alternative base point that can serve for this purpose is "creation," which section 101 defines as the act of fixing the work "in a copy or phonorecord for the first time." While it is true enough that proof of the precise time of an event such as "creation," which is usually private in nature, is likely to involve problems, it is important

to remember that the question would arise only where a work has remained unpublished for more than 25 years after it was created. The primary importance of "creation" would probably be to scholars who, upward of a century later, need to determine a work's copyright status; their task would not be to establish the exact date of creation, but simply to determine whether the work had been created more than 100 years earlier.

The definition of "creation" also comes to grips with the problem of works that take some time to complete or that go through various revisions or versions. It provides that, "where a work is prepared over a period of time, the portion of it that has been fixed at any particular time constitutes the work as of that time, and where the work has been prepared in different versions, each version constitutes a separate work." This means that a potential user, wishing to establish whether a particular work (or part of a work) is still under copyright or is in the public domain, need only look to the version he wishes to use, and need not concern himself as to whether that version is complete or may have been revised later.

Although the definition of "publication" in section 101 is significant not only with respect to the copyright term but also in connection with a number of other provisions of the bill, it no longer has the paramount importance that attaches to the concept of "publication" under the present law. The term is defined as "the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending." In other words, the placing of one or more tangible objects embodying a work in the hands of "the public" constitutes "publication," regardless of whether the objects are sold, given away, lent, or distributed under some sort of rental or lease arrangement. "The public" in this context is intended, very generally, to refer to persons who are under no express or implied restrictions with respect to the disclosure of a work's contents, but we believe that the situations here are so variable that this particular concept of "the public" is better left undefined in the statute. On the other hand, the definition is intended to make clear that the distribution of phonorecords is a "publication" under the statute, and that the performance or exhibition of a work is not.

Some questions have been raised concerning the length of the 75- or 100-year periods provided in section 302 (c), especially when compared with the usual period of 50 years from publication provided for anonymous and pseudonymous works under the Berne Convention and many foreign laws. This contrast becomes much less striking when one realizes that, as under our common law, foreign laws usually place no limitation on the duration of protection up to the time of publication, and that the 50-year period does not apply to works made for hire unless they also happen to be anonymous or pseudonymous.