Bitter Suite

A Denver conductor and music professor leads an ensemble fight to protect the classics.

"We have found that, especially with foreign composers, we can't afford some of their music for these programs," he says.

Golan points out that it's not only foreign works that will no longer reach the ears of American music lovers as a result of the Bono act. He and his peers across America "have been champing at the bit for the year 2002, because that's the year that Gershwin's 'Rhapsody in Blue' [was] to become public domain." Now, because of the extension the work's copyright has received under the new law, it will be another twenty years before most symphonies can afford to perform it. "Now, unless you're one of the big-budget orchestras, you can't afford to play it, because it costs a thousand bucks for each performance," Golan says.

On paper, the Uraguay and the Bono acts seem like a boon for domestic artists. The former allows American writers and composers to receive more payment for works used overseas, while the latter enables them to earn that money for longer periods of time. Among their supporters are I. Fred Koenigsberg, an attorney with White & Case, the firm that represents the royalty collection agency ASCAP. "The benefits of those additional twenty years flow to the families of authors and artists in a very considerable manner," says Koenigsberg, who's also a former president of the American Intellectual Property Law Association. Longer terms, he adds, also give publishers and corporations who trade in published work an inducement to "exploit them, in the best sense of the word," since they can reap dividends for longer periods of time. Copyright extensions don't take anything out of the public domain; they simply keep them there longer, Koenigsberg says.

Measure for measure: Professor Lawrence Golan has sued the federal government over two copyright laws.
James Bludworth
Measure for measure: Professor Lawrence Golan has sued the federal government over two copyright laws.

But Golan argues that instead of boosting income for the heirs of composers, the acts actually reduce artist earnings.

"If there are only five orchestras that can afford to rent a piece for a thousand dollars," he says, "the publishers and heirs of the composers would earn $5,000. If you were able to purchase the piece for a hundred dollars, there would be 2,000 orchestras that could buy it, and [copyrights holders] would make $200,000."

Besides, he adds, extending the copyright terms does nothing to foster the creativity and promise of future artists. "We're talking about composers who are dead," Golan says. "Gershwin made millions of dollars back in 1920, when he was alive. His great-great-grandchildren don't need to make more money on something they had nothing to do with in the first place."

Morton David Goldberg is a partner with Cowan, Liebowitz & Latman, a New York City firm that represents publishers, entertainment corporations and music consumers, and one of the nation's leading experts on intellectual properties. He says the Bono Act was approved to bring U.S. policy in line with European Union countries that honor copyrights for seventy years: "The only way the U.S. copyright owners would get the benefit of the additional twenty years in Europe is by having the additional twenty-year term in the U. S."

Koenigsberg says the laws have great benefits for the United States as a whole. "Copyrights are an export product," he says. "We get far more money from foreign countries for the use of American copyrights than we pay for the use of foreign copyrights here in the United States. We have a trade surplus in copyrights. That means money and jobs for the United States economy."

But according to Stanford's Lee, Congress's decision to extend copyrights for twenty years was the result of pressure from both foreign and domestic parties, including Capitol Hill lobbyists. On an international level, U.S negotiators were willing to give up access to works in the public domain in order to gain other benefits for America. "If you want to bargain with another country," Lee says, "you're going to be trading little chits." Stateside, "you get powerful copyright holders that lobby Congress at key moments when their copyrighted works might fall into public domain." The Bono Act, he points out, has been dubbed the "Mickey Mouse Protection Act" by its opponents. "The first movie with Mickey Mouse was to fall into the public domain had the extension not been enacted." (Works for hire, as Mickey Mouse was for Disney, already receive the protection of an extra 25 years.)

Representatives at two of the nation's largest music publishers declined to comment on Golan's pending federal case -- which is expected to be reviewed by the court this summer -- as did a spokesman for the U.S. Office of the Attorney General. In a brief filed in response to the complaint, U.S. attorneys claim that Congress has the right to extend copyrights to works whose protection is due to expire, and that it has done so several times in the nation's history. (The most recent extension was in 1978.) Regarding the URAA, government attorneys believe that powers granted to Congress through international treaty practices allow them to place public-domain work back under copyright protection. "Plaintiff's suit should be dismissed," reads the brief, "because so long as the Constitution delegates to Congress the power to pass a statute, and the statute does not trample on other parts of the Constitution, that statute is acceptable."

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