COMMENTS AND VIEWS SUBMITTED TO THE COPYRIGHT OFFICE ON DURATION OF COPYRIGHT

By Herman Finkelstein

FEBRUARY 11, 1957.

Thank you for your letter of the 4th enclosing Mr. James J. Guinan Jr.'s study on the subject of duration.

My own views are set forth in the enclosed reprint of "The Copyright LawA Reappraisal," 104 U. Pa. L. Rev. 1025, 1042-54. [Excerpts from that article, with slight modifications, and with footnotes omitted, are attached at the request of Mr. Finkelstein.]

I favor a term of life and 50 years for the reasons which are set forth in that article.

Referring specifically to the questions in your Appendix C, I favor No. 5 of Item I-basis for computing the term.

In the case of works which have not been published or publicly disseminated during the lifetime of the author, a term of 50 years after first publication or public dissemination would seem desirable.

Works by corporate organizations or other groups and anonymous and pseudonymous works could have a term of 50 years from the date of publication or first public dissemination.

With respect to Item II-the length of the term, I have already indicated my preference for a period of 50 years after death.

There may be a shorter term for photographs.

As to subdivision 3 of Item II, I think the term of years should be computed from the end of the year in which the event that starts the term has occurred. With respect to Item III, subdivision 1, I think the term should be a single one and not one that is renewable.

As to subdivision 2 of Item III, I should like to refrain from expressing an opinion at this time.

HERMAN FINKELSTEIN.

By Herman Finkelstein

[Excerpts from article in 104 U. Pa. L. Rev. 1025, with slight modifications and with footnotes omitted.]

DURATION OF COPYRIGHT TERM

THE PRINCIPLES INVOLVED

The idea of a term of copyright measured in multiples of fourteen years was a vestige of the time when privileges were granted as a means of encouraging printers. * * *

The fourteen-year term was then logical, being long enough to train two sets of apprentices in the new art. In an ideal system of law, the duration of an author's property rights in literary works would probably have some relation to the duration of other property rights. It is too late to urge that authors should have perpetual rights in their works; that was settled to the contrary by a closely-divided English court in 1774 and by our Constitutional mandate that exclusive rights of authors in their works may be granted by Congress only "for limited Times."

Some of our greatest legal and literary minds have urged that, in principle, authors are entitled to enjoy their property rights for the same period as land

owners.

Our ideal term of copyright must be for a limited period of time, but should be as long as is commensurate with the public interest. The great public interest behind the enactment of copyright laws is the encouragement of authors by giving them the opportunity of obtaining fair rewards for their labors. It is submitted that the test should be, not how little may be vouchsafed to the author as a means of such encouragement, but rather, what should the public consider as a fair reward for the contributions made by authorship to society? Our answer must depend on (a) the scope of the rights given, (b) the periods of protection in other fields of human endeavor, (c) historical considerations, (d) experience in other countries and (e) our national interest in both its domestic and international aspects.

What have been the arguments pro and con over the years? What validity do those arguments have today? Perhaps the most eloquent and certainly the most effective argument against extending the term of copyright was made by Lord Macaulay more than a century ago, at a time when the term of copyright was twenty-eight years from the date of publication but not less than the life of the author. Sergeant Talfourd proposed a term of life plus sixty years. Macaulay's opposition centered on five points: (1) No rights of property should survive death except to the extent that parliament deems proper. (2) Except for a system of patronage, which is undesirable, copyright is the only known means of encouraging professional authors, but copyright is a monopoly and monopolies are evil. "For the sake of the good we must submit to the evil; but the evil ought not to last a day longer than is necessary for the purpose of securing the good." (3) Copyright laws impose "a tax on readers for the purpose of giving a bounty to writers. The tax is an exceedingly bad one; it is a tax on one of the most innocent and most salutary of human pleasures; and never let us forget, that a tax on innocent pleasures is a premium on vicious pleasures." (4) A publisher will pay little more for a copyright having a duration of life plus sixty years than for one of life plus twenty-five years. "From the very nature of literary property it will almost always pass away from an author's family; and *** the price given for it to the family will bear a very small proportion to the tax which the purchaser, if his speculation turns out well, will in the course of a long series of years levy on the public." (5) If the copyright does not fall in the hands of booksellers, but remains in the family, it may produce an even greater evil-"many valuable works will be either totally suppressed or grievously mutilated."

These arguments must be examined in the light of both experiences and logic. * *

TERMS IN OTHER COUNTRIES AT THE TIME OF ENACTMENT OF 1909 LAW AND AT PRESENT

By the time our 1909 law was enacted, every major country of the world except the United States and Holland (including the Dutch East Indies) granted protection to the author at least for the period of his life. At the present time, 38 of the 60 countries having copyright laws provide for a term of life and fifty years or longer. The countries having the shortest terms at present are Russia (life and fifteen years) and the United States (twenty-eight years from publication plus an additional term of twenty-eight years). No country today has a term shorter than life and fifteen years, except Bulgaria and Yugoslavia where the rights terminate upon the author's death if he does not leave a widow or children under twenty-one (Bulgaria) or twenty-five (Yugoslavia). (A chart showing the period of copyright in the several countries throughout the world in 1909 and at present is given in 104 U. Pa. L. Rev. 1025, 1046-49.)

The trend toward standardizing the period of copyright protection at life and fifty years accords with the period prescribed in the Berne Convention, as modified at Brussels in 1948. Such a term protects the author's widow and children or other beneficiaries for a reasonable period beyond the author's death. In an age and country where all are conscious of the importance of life insurance, this is not too generous a gesture to authors.

Macaulay's argument that no property rights should survive death in the absence of express statute cannot command much sympathy in our day. Opponents of a longer term of copyright have reiterated Macaulay's argument that a copyright is a monopoly; that monopolies are odious and that therefore "the evil [monopoly] ought not to last a day longer than is necessary for the purpose of securing the good [encouraging professional authors]." This assumes that a copyright confers a monopoly in the sense that a patent does—that is, that