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My Advice (and Paper) for The Coming Copyright Reform: Ignore Heirs

copyright_symbolCopyright’s history and its future is in the air this year. It could be that my new paper which is out to law reviews now, Copyright’s Hidden Assumption: A Critical Analysis of the Foundations of Descendible Copyright, is driving my perception. The paper addresses a key part of the history and future policy of copyright, so of course it seems like many others are interested too, right? Then again, Santa Clara is holding a conference for the 100 year anniversary of the 1909 Act. Tulane is running an on-going speaker series, The Future of Copyright. And on Friday I was at yet another conference about Copyright. Dave Fagundes was nice enough to remind me about the Reforming Copyright: Process, Policy and Politics conference at Southwestern Law School. I am nowhere near Rebecca Tushnet’s ability to live blog events, but I will try and post summaries of what I heard (and possible commentary) over the next few days. As an initial thought, I was surprised that duration was not an issue during the discussions. Then again, after Eldred many may think that duration is a dead issue and that Congress can do as it wishes. Nonetheless, my paper shows that duration played and will continue to play a major role in copyright policy. At least two events show that term extension is an ongoing problem in copyright.

Despite studies showing that there is no need for term extension, Europe is considering extending copyright’s term for performers and sound recordings. In addition, works that received a greater term under the Copyright Term Extension Act will enter the public domain in the next decade. Given the efforts made for term extension before and the current economic climate, one can bet that new cries for longer terms will again be made.

In other words, duration policy continues to be a major issue in copyright policy. Future copyright policy must understand the way arguments for extension manage to succeed despite strong economic arguments against such extension. Copyright’s Hidden Assumption: A Critical Analysis of the Foundations of Descendible Copyright offers an explanation regarding how blatant rent seeking behavior could succeed.

The paper shows that an erroneous, mythological assumption regarding the relationship between copyright and heirs fooled (or allowed) Congress and the Supreme Court into accepting that duration had to be extended. In simplest terms the assumption is that a key goal of copyright policy is to use copyright to provide for an author’s children. The paper shows that neither history nor theory supports the claim.

New claims for extension will again have a difficult time asking for more time simply as a way to extract rent. The image of starving widows and children will again be rolled out to justify extensions. My paper shows that this argument lacks merit and should not be part of answering whether copyright’s duration needs to be extended yet again.

Here is the Abstract:

Copyright operates under a hidden, erroneous assumption: heirs matter in copyright. This Article examines the possible historical and theoretical bases for the heirs assumption and finds that neither supports it. In short, the assumption is a myth that harms copyright policy and ignores a less obvious, but quite important, heir: society in general. An examination of the historical debates shows that the idea of providing for heirs through copyright has played a minor role in U.S. copyright history. Instead, heirs have been props to advance an agenda of furthering term extensions, advancing rent-seeking opportunities, and allowing authors to exert power against publishers. In addition, although copyright policy makers point to Europe and the Berne Convention as a key source for the heirs assumption, European debates that serve as the basis for the Berne Convention offer surprising and almost prescient sensitivity to ideas that are found today in the access to knowledge movement. One figure in particular, Victor Hugo, made an impassioned speech arguing that literary property protection must be operate as a way to found the public domain and asserting that when choosing between authors’ rights and the public domain, the public domain must win. Furthermore, when one examines the dominant theories offered to justify copyright — from Lockean labor to Hegelian personhood to utilitarian theories — no justification for descendible copyright is found. Nonetheless the analysis of this material offers a way to understand that another heir, society, ought to be considered in copyright policy as a matter of intergenerational equity.

Rhetorical analysis of the historical and theoretical material investigated in this Article reveals that many seemingly different perspectives converge on two points. First, creativity is a communal, feedback-driven process involving a give and take between the current generation and previous generations. Second, the longer inputs to creativity are locked up, the more creativity and innovation are hindered and harmed rather than increased. These results pose an additional problem as they limit the material available for individuals to use as they develop what Martha Nussbaum has called the basic capability to experience and create expressive works. In short, despite the lack of support for the role ascribed to heirs in today’s copyright policy, heirs have taken on a mythological importance that distracts copyright policy from its proper goal: promoting progress. As copyright extension debates continue world-wide and loom with the coming expiration of the Copyright Term Extension Act, this Article seeks to dispel the mythology and provide a more solid basis from which to determine copyright policy.

Image source: WikiCommons
License: Public Domain