SAA Opposition to Copyright Term Extension Act

November 7, 1997

Dear Senator [Representative]:

On behalf of the Society of American Archivists, I write to express our vigorous opposition to S. 505 [HR. 2589], the Copyright Term Extension Act of 1997, and to urge you to oppose it. The proposed law disrupts the balance between public and private interests and will have a severe negative impact on the public's use of unpublished materials for teaching, scholarship, and research.

The Society of American Archivists is the oldest and largest association of archivists in the United States, representing more than 3,300 individuals and 500 institutions. It is the authoritative voice in the United States on issues that affect the identification, preservation, and use of historical records.

Because of archivists' commitment to making the documentary heritage of our nation widely available to the public, the Society is particularly concerned about the effect that copyright has on how readily and completely this documentary heritage can be used. We are firmly convinced that in order to meet the purpose of copyright as expressed in the Constitution, namely the promotion of "the progress of science and useful arts," it is necessary to have both a vigorous public domain as well as protections for the rights of holders of intellectual property. Too short a period of copyright protection may discourage authors from developing new works; too long a period of copyright protection may limit the creation of new discoveries and new products that must draw on the works of others. The challenge facing Congress is to maintain the delicate balance between the interests of current authors and the rights of the public at large now and into the future.

Currently, the Copyright Act of 1976 provides a reasonable period of protection of rights as well as a workable schedule for expanding the public domain availability of unpublished archival material. Any attempt to lengthen the term of copyright should be judged on whether the proposed change is likely to promote "the progress of science and useful arts." It is our belief that increasing the term of copyright protection from its current term of life of the author plus fifty years to the life of the author plus seventy years may accommodate corporate special interests, but it is unlikely to generate any new spurt of creative energy for the public at large. Instead it will only delay by twenty years the period when the public can draw fully on the material for inspiration. No extension of copyright term should be contemplated until there are available solid analyses of the likely impact of such an extension on the creation of new knowledge. To our best knowledge, no such analyses of the impact of the copyright term extension exist.

We are particularly troubled by the effect such an extension may have on the use of unpublished material of the sort frequently found in archives. Most of the individual items found in archives are of limited commercial value. However, when studied within the context of the documentary record, archival documents contribute immeasurably to the understanding of our cultural heritage at the same time they ensure the accountability of government to its citizens.

The "fair use" provisions of the current act are the basis for most current research in unpublished materials. Yet the courts have been increasingly more restrictive in the application of the principle of "fair use" to unpublished material. Consequently, many archivists and other scholars have been reluctant to make some documentary material broadly available because of the slight risk that doing so would entail, and we have eagerly anticipated expiration of its copyright. The proposed legislation would delay, for two decades, full public and archival use of such documents.

For example, consider the case of Charles Townsend Copeland (1860-1952), the great Harvard English professor whose students included Heywood Broun, T. S. Eliot, and Walter Lippman. Under the current law, letters and early writings authored by Copeland during his formative period of intellectual development starting in the late 1870s are scheduled to enter the public domain on January 1, 2003. Under the proposed legislation, these documents would remain under control of Copeland's literary heirs until 2023. If the heirs choose to publish the documents, control over them could extend to December 31, 2047. Scholars could thus be denied the full use of these materials for over 160 years from the time of their creation.

The inability of the public to exploit, in a timely manner, the unpublished material found in archives will have a negative impact on its preservation as well. It is currently difficult for archivists to justify the expense of maintaining large collections of documentary materials that are of such limited use for fifty years following the author's death. Adding another twenty years to the term of copyright for deceased authors further diminishes the rationale for preserving them. Thus, any legislation that delays the transfer of material to the public domain would starve our documentary heritage of the everyday voices of the average citizen. The timely transfer of such materials to the public domain is the best way to ensure they will be saved and used by others to enrich the cultural heritage of all citizens.

Even if it were proven that the acquisition of new knowledge might be enhanced with an extension of copyright protection, there is no reason for extending the protection to authors who are already deceased. Simply put, dead authors are unlikely to generate new works regardless of the length of copyright protection. Therefore, any increase in the copyright term should affect only those works created after the passage of the law and only cover living authors.

In our daily work, archivists seek to maintain the delicate balance between the rights of the creator and the rights of the public to have access to information for the benefit of all the people. Our experience has convinced us that only certain corporations or the heirs of a few individuals, and not the public as whole, would benefit from the proposed legislation's "gift" of twenty more years of copyright protection. We sincerely doubt that extending the term of copyright for twenty more years for living authors would in any way advance the intellectual and cultural progress of our nation. Instead, the proposed law so disrupts the balance between public and private interests mandated by the Constitution, that we urge you to reject this bill, which benefits a few at the expense of the public at large.

Sincerely yours,

William Maher
President
Society of American Archivists

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F. James Sensenbrenner Jr.
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William McCollum
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Howard Coble
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Asa Hutchinson
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Robert Wexler
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Spencer Abraham
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John D. Ashcroft
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