PREPARED STATEMENT OF JOHN BELTON, PROFESSOR, RUTGERS UNIVERSITY, ON BEHALF OF THE SOCIETY FOR CINEMA STUDIES

Introduction

Founded in 1959, the Society for Cinema Studies is a professional organization of college and university educators, filmmakers, scholars, historians, and others concerned with the study of the moving image and recorded sound. Membership of the Society currently Curbers more than one thousand. Activities of the Society include the organization of an annual conference that is regularly attended by over 600 participants and the publication of Cinema Journal, a quarterly magazine devoted to film and television studies. The Society has established a number of committees to deal with issues related to our field; these include a moving image archive policy committee and a committee on the preservation and access of film, radio, and video/television materials for research and classroom use. SCS is also an active member of the National Film Preservation Board. Comments and Rationale

The Society offers the following comments on the proposed extension of copyright protection. These comments are concerned chiefly with the proposed legislation's application to motion pictures and other audio-visual media. They seek to address issues of term extension as they relate to works made for hire:

1. The proposed legislation fails to distinguish adequately between different kinds of works.

Copyright law has established distinctions between works created by individual authors and works made for hire. Arguments in support of this proposed legislation ignore those distinctions. The principles of authorship that prevail in other art forms, such as painting and literature, cannot be naively applied to the cinema and other audiovisual media. The works of individual artists and authors are being considered for extended protection in large part because of the hardship that surviving family members might endure without continued income from these works. However, this argument cannot be applied to works made for hire, such as motion pictures and television programs, which are copyrighted by large corporations. A corporation cannot be compared to surviving family members nor can it be said to experience individual hardships. Corporations are, by definition, not individuals but collective entities established for the pursuit of certain kinds of business ventures. The claim of "natural right" as authors should not be extended to corporations.

2. The proposed legislation would impoverish the public domain as a source for new works without providing any clear compensating advantages.

Copyright protection is designed to encourage creativity by

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granting artists and authors a limited monopoly; it gives authors exclusive rights to exploit their own work. The proposed addition of twenty years of copyright protection may encourage future creativity on the part of individual authors who wish to provide a livelihood for themselves and their immediate heirs. Indeed, one reason given for extending the term from "life plus fifty" to life plus seventy" is the projected increase in the human life span. Thus the post mortem auctoris term of seventy years should protect two generations of descendants. Again, the logic used to arrive at the proposed twenty year extension of present protection cannot be applied to works made for hire. Their "authors" are corporations whose "life span" is not changed by increases in human longevity.

Works made for hire are currently protected for a term of seventyfive years. The new legislation proposes an extension of twenty years to give corporations a "limited monopoly" of ninety-five years. The argument that has been used to support this extension has been the need for international conformity. Yet, since the Copyright Act of 1976, American works for hire have enjoyed a longer period of protection than their European counterparts. The Berne Convention established a term of fifty years of protection after publication for cinematographic works. Have we suddenly entered an international term-extension race where our seventy-five has forced the Europeans to abandon their fifty for a new ninety-five? Is there a reason for the new numbers? On what needs are they based?

The extension of copyright protection can have no impact as a stimulus for creativity in terms of existing works. This argument cannot be used to justify a retroactive term extension for existing works. These works already exist, produced under different incentives and constraints. It is not clear that the proposed change for works made for hire from seventy-five to ninety-five years will measurably increase creativity. The corporations that produce motion picture and television programs operate on a short-term financial basis. Their incentive for the publication of these works is far more immediate in terms of rewards. They need to recoup their costs and make a profit during their initial play-off, which runs from roughly two to five years and includes a film's initial theatrical release, its sale to cable, its marketing on video, its sale to network television, and its syndication. After its initial playoff, a film becomes an "asset" in the corporation's library of holdings. Any profit that it generates after its initial play-off is pure gravy and has little or no relation to the initial incentives which led to its production.

The extension of copyright poses a threat to the concept of public domain, which lies at the basis of copyright law. The United States Constitution has given Congress the power "to 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. As the Supreme Court noted, the concept of a limited monopoly encourages and rewards creativity on the one hand while assuring that, the work will ultimately enjoy widespread public availability. The public domain is designed to function as a vital source for new works. Indeed, Disney, one of the corporations that

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will benefit from term extension, has based a number of its recent works on public domain stories. This goes back, of course, to Snow White and The Seven Dwarfs (1937), but includes The Little Mermaid (1989), Beauty and the Beast (1991), Alladin (1992), and Pocanantas (1995). Within the last few years, Kenneth Branagh has adapted two Shakespeare plays, Henry V and Much Ado About Nothing; Martin Scorsese has brought Edith Wharton's Age of Innocence to the screen; Gillian Armstrong has filmed Louisa May Alcott's Little Women (1994), and Anieszka Holland has made Frances Hodgson Burnett's The Secret Garden (1993). Term extension will impoverish the public domain and poses a threat to the spirit of copyright law. In 1976, terms were extended and this came at the expense of the public domain. Just as those earlier extensions are now about to expire, it is proposed that they be extended yet again. Will additional term extensions be proposed twenty years from now? Copyright holders naturally wish to extend their rights, but successive extensions of copyright terms will undermine--or perhaps even destroy--the concept of public domain and the rights of the public.

3. The proposed legislation fails to consider the needs of users of copyrighted material.

Lengthening copyright protection would have a significant impact on users of copyrighted and public domain works. As educators and scholars, we are concerned that this material will be increasingly difficult to obtain for scholarly and classroom use. As part of the nation's cultural heritage, such documents should be preserved and studied by disinterested scholars and educators rather than hoarded by copyright owners who may have little regard for the public good. If copyrighted material is never made available for use, that material has effectively been repressed or censored by its owners. This is especially critical for motion picture and televisions works.

with the publication of a book, copies are sold to the public; some copies are deposited in libraries. If that book goes out of print, copies continue to survive in libraries and can be obtained by users (via inter-library loan if your local library does not have it). Motion pictures and television programs are not made available in the same way. Copies of these works on film are not sold. Nor are they deposited at libraries. Even the Library of Congress, which once required two deposit copies of motion pictures, now returns deposit prints at the request of the depositor. If motion pictures or television programs have been deposited at the Library of Congress or at a public archive, they can be studies on the premises. But they cannot be used in the classroom or screened in theaters without the permission of copyright holders.

Or, if

Traditionally, copyright holders have not readily make films and other materials available for educational or scholarly use. access is given, the costs involved have been prohibitive. It is not cost-effective for Hollywood studios, television networks, and large distributors of television programs which make their profit from the mass market to serve educational needs. Consequently, they frequently refrain from providing educators with ready access to

culturally important audio-visual materials. Hundreds of American films are no longer available for classroom rental in 16mm or 35mm. For example, existing 16mm copies of Alfred Hitchcock's 1943 classic Shadow of a Doubt were recently discovered to be some damaged that they had to be destroyed and the distributor considered it to be too expensive to strike new prints. However, small distribution outlets that deal in public domain films have learned how to make a profit in this market. Hundreds of little-known films that educators would like to use in classrooms that will never find their way to 16mm distribution or even video if the copyright term is extended. A similar situation exists with regard to other audio-visual materials. The more films that fall into the public domain, the more early cinema, silent films, and historically important, early scund movies will be available for educators to use in the classroom.

Historically, motion picture studios have not been responsible custodians of their property. Half of all American films made before 1950 no longer exist, having been left to deteriorate in studio vaults. For the last decade of silent films (the 1920s), the statistics are even worse: only twenty per cent of these survive. Only in the last ten years, with the expansion of video and cable markets, have many of the studios taken steps to preserve their holdings. This has also been the case for many television networks and large television production companies. In the past, it has quite often been the public archives, not the studios, that have taken on the task of preserving our moving image heritage. To give the studios an additional twenty years of copyright protection over material that many of them have ignored for seventy-five years or more is inappropriate. If the owners of works for hire secure these additional rights, they should at least be required to preserve and make available all titles that fall under this proposed legislation. As users of copyrighted material, scholars and educators remain concerned about the preservation of and access to these works. Any new legislation should attempt to ensure that additional rights copyright owners are accompanied by additional responsibilities of these owners to the public.

Even when copyright owners do grant educators permission to use their materials, they frequently set forth policies that make access next to impossible. They may charge prohibitively high rates or establish unnecessarily onerous conditions for their use. For example, Hollywood studios have often demanded exorbitant fees or unreasonable conditions for the use of stills and frame enlargements which serve as evidence in scholarly arguments and teaching tools in textbooks. In one instance, Paramount requested a payment of $20,000 from an educator for the use of several frame enlargements in a textbook published by a university press. Columbia Pictures has granted requests to reprint photos from its films at exorbitant terms $500 per photo) and insisted that scholars secure releases from all those depicted in the photo. In a similar case, CBS insisted that a scholar publishing an essay in Cinema Journal dealing with visual style in television soap operas secure releases from all those depicted in the photos. As educators, we realize that much of our

copyright law. However, the principle of fair use remains ambiguous, decided in court by judges on a case-by-case basis. Copyright owners tend to define the principle of fair use very narrowly and threaten those who reproduce even the smallest part of a copyrighted work, such as a frame enlargement, with expensive lawsuits. Given this sort of intimidation and the potential expense of going to court against large corporations, educators and university presses are reluctant to test the limits of fair use in court.

The proposed copyright extension also effects unpublished works, such as studio papers, production information, correspondence, stills, and other materials. These materials were to enter the public domain in 2002. The new legislation proposes to shield them for an additional ten years. Extended protection of these materials will restrict future film scholarship.

Conclusion

Scholars and educators have unique problems which are not addressed by the proposed legislation to extend the period of copyright protection. The proposed copyright extension threatens to strengthen the rights of copyright holders in ways which we find to be problematic. Even if term extension is deemed desirable for certain works, it is not necessarily desirable for other kinds of works, such as motion pictures or television programs made for hire. A copyright extension will do little or nothing to spur creativity in the making of new films and other audio-visual works and will have an adverse effect on the production of new films based on public domain works. Most importantly, by limiting our access to documents of cultural and historical significance it will seriously hamper the mission of educators as custodians and transmitters of our national moving image heritage.

Notes

submitted by John Belton

1. Silkie von Lewinski, "EC Proposal for a Council Directive Harmonizing the Term of Protection of Copyright and Certain Related Rights," IIC, 23, No. 6 (1992), 787.

2. Quoted in "Who Will Set the Tolls on the Information Superhighway," unpublished comments by David Pierce of the Committee for Film Preservation and Public Access (November 29, 1993), 9.

3. Twentieth Century Music Corporation v. Aiken, 422 U.S. 151, 156 (1975).