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.