Dan Soloveâ€™s post about Kafka and Lior Strahilevitzâ€™s The Right to Destroy raises a question about which Dan and I have tangled and with which I still struggle: what are the rights of heirs in intellectual property? My article currently out to law reviews, Who Cares About Heirs (In Copyright)? attacks the idea that heirs matter at all.
Here is the abstract:
Although the harms of the Copyright Term Extension Act and Congressâ€™ authority to pass the act have been well-discussed, an underlying assumption merits consideration: heirs matter in copyright. When one examines the dominant theories offered to justify copyright from utilitarian to Lockean labor to Hegelian personhood to social planning, no justification for descendible copyright is found. Even if one cedes the idea that custom or tradition supports the ability to inherit real property or money, the nonrivalrous nature of copyright changes the analysis. Exploitation of copyrighted work in life allows one to accumulate wealth and pass it on to descendants. In contrast, allowing the underlying work that can be exploited in life to pass to the next generation denies others the ability to use the intellectual resources that have already been exploited. In addition, investigating the nature of creative and productive systems reveals that the longer such resources are locked up, the more creativity and innovation are hindered and harmed rather than increased. This result poses an additional harm as it limits the material available for individuals to use as they develop what Martha Nussbaum has called the basic capability to experience and create expressive works. As such this Paper argues that life is the proper and theoretically supported terminus for copyright interests.
The paper builds on my article, Property, Persona, Preservation (forthcoming Temple L. Rev.) In that article I use the question of what happens to oneâ€™s email when one dies to explore â€œthe normative theories behind creators’, heirs’ and society’s interests in the[ir] works. All three groups have interests in preservation, but the basis for the claims differs.â€ Part of that article draws on Liorâ€™s work and finds that whether one calls it destruction or preservation the author should have strong control over the work.
As to whether Danâ€™s concerns over privacy apply in this area, I think it is an open question and one I look forward to addressing in upcoming work. For now, it seems to me that many family privacy claims have little to do with privacy and more to do with economic gain. That is not to say privacy issues are not in play and are always false. Rather as Dan has well-documented, the term privacy has multiple meanings and may be a real concern. Still, the effects of denying access to creations based on privacy claims may be so pernicious that another approach is required.
An inheritable property right is more valuable than a non-inheritable one. There are certainly many cases where the value that the creator hopes to pass on to his/her heirs – traditionally, the responsibility of a breadwinner to provide for his family â€” is not realized until after death.
For example, Otis Redding died at age 26, leaving a wife and 3 children. His only number one hit, Dock of the Bay, had been recorded a few days earlier and had not been released yet. The financial benefits to his heirs were considerable.
Any investor (of labor or money) can discount forward the NPV of some future income stream. If the career is abruptly terminated by death, the need to (for example) pay off the mortgage or support minor children has not gone away.
A stronger argument can be made against ex post facto term extension â€” arguments that failed in the Mickey Mouse Copyright Extension Act only because SCOTUS deferred to the authority of Congress.
And your particular concern could best be addressed by a fixed term â€” not from the creatorâ€™s life, but from the date of creation. If I canâ€™t earn a return from my composition in the first 50 (or 75 or 95) years, why have it go another 20 years? This would have the added benefit that all the creative works from a given genre or milieu would become available at a predictable time, encouraging exactly the sort of activities that you cite.
Thansk for the thoughts. Genuine question (not snark dig here): Did you read the article? I think it addresses your points. In short, as a theoretical matter descendible copyright has no support. Second, I address the fixed term issue as a possible soultion and use actuarial data to support the idea that one should exploit work during a reasonable time in which to do so. Third, as for Redding, it seems like another example of the claim that a few dead, famous people should drive a large lever in copyright; I think it is a weak argument when probed. The article notes the possible fairness argument but shows that the current system fixes this alleged issue by over-correcting as it were. Again the point about fixed terms is in the article and would cover the situation.
So I think we agree on many points, and if you have thoughts about the paper, Iâ€™d love to get them offline so we can sort ideas.
This is a most interesting paper – thanks for posting it. I do have three comments:
1. I don’t understand how you can conclude that “the protection of heirs does not seem to have been the real focus of the  extension…” I suppose technically you are right, since you say immediately before this that the law opted not to assign the renewal right to assigns, but as you say, this was to shut out publishers. So in a way, the law was consciously trying to protect the children of authors (who I suspect Congress thought were most likely to be the heirs).
The 1831 change seems to be key to your argument. It shifted copyright from the purely utilitarian system of the original copyright law to something more complex. I wish I understood better how that change occurred.
2. There is no mention privacy interests in your paper, but of course that is one of the primary justifications that heirs express for their actions. Stephen Joyce, for example, seems to view himself as the protector of his grandfather’s legacy and his family’s privacy. I’d be interested in your thinking on this non-economic justification for descendible rights.
3. At the end you admit that moving to a fixed term of 100 years since birth seems unlikely. That is a bit of an understatement, since to do so would mean that we would have to withdraw from the Berne Convention. I have come around to the idea that joining Berne was a huge mistake – we should have just stayed with the UCC – but I also can’t imagine the US ever withdrawing.
The value of your piece (as you suggest) might be in the upcoming debates over another term extension. But I wonder if saying that we shouldn’t have any descendible rights at all is a strong argument for limiting those descendible rights to 70 years after the death of the author?