That the CTEA was intended to "harmonize" U.S. law with that of western Europe is the Bright Shining Lie that seems to have carried the day so far for the public domain's enemies. But if this were the true reason, the act would have contained either (1) a single provision, extending the term of post-1977 (or post-1998) author copyrights, and leaving corporate copyrights and pre-1978 copyrights alone; or (2) a comprehensive re-alignment of copyright terms for various classes of works. Sound recordings, for example, (as distinguished from the music or other content on them) are protected in Europe for 50 years. This European protection isn't copyright protection, at least not in all countries; it comes under the 1961 Rome Convention, and a 1971 agreement signed at Geneva, not the Berne Convention. In the U.S., records are protected by copyright as works of authorship for 75 years for all recordings fixed from sometime in 1972 until 1978, and for foreign recordings fixed from 1922 until 1972 if certain paperwork was timely filed by the claimant; and for life+50 or 75 years for post-1977 records, depending on their work-for-hire status. A true harmonization bill would have reduced the term of copyright for all sound recordings, or at least all post-1998 sound recordings, to 50 years.

Furthermore, some European countries have a public performance right for sound recordings (as distinguished from the public performance rights in the recorded content). In the U.S., the public performance right extends only to digital recordings in certain circumstances. I think the U.S. should not follow Europe in establishing a public performance right in all sound recordings, but if "harmonization" were the true reason for the CTEA, its backers would have at least tried to include one.

Indeed, the rationale for term extension within Europe has been deemed "almost entirely bogus" by at least one commentator (click here). Another has noted that "Luxembourg, the Netherlands and Portugal voted against [the extension] and Ireland abstained The...extension...from 50 to 70 years was opposed by the Economic and Social Committee....The Committee accepted the need for harmonisation but laid emhasis on the fact that the basic copyright term in ten of the Member States was life of the author and 50 years in common with 90 percent of the Berne signatory states." (N. Dawson, "Copyright in the European Union--Plundering the Public Domain", 45 Northern Ireland Legal Quarterly, pp. 193-209, at 202.) The EU has indeed an interest in achieving the sort of internal economic integration that is achieved in the U.S. by the Constitution's commerce clause. But if harmonization had been the true and only reason for the EU extension, the EU directive would have included a phase-out provision, so that the copyrights of all authors dying in, say, the years 2001 to 2020 would expire on January 1, 2071. Or they could have pressured Germany and Spain to phase out their anomalous terms (Spain had already begun to do so.) Approaches like these would have provided the necessary internal European harmonization without sacrificing harmony with the rest of the world. The weakness of the "harmonization" rationale is a partial explanation for why the EU bureaucrats felt they needed to pad their directive with other, equally flimsy, excuses for extending the term.

T.