Re: Proposed Extension of Copyright Term -Reply -Reply

On Thu, 31 Aug 1995, Mark Lemley <mlemley[_at_]mail.law.utexas.edu> wrote:
>
> > I'll try as requested below. The original query was: Why does
> > copyright expire when title to real estate does not. I suggested a
> > reason, but in the quoted language merely ask why are copyrights so
> > long (75 years minimum) and patents so short (20 years maximum) --
> > being that they are more like each other than either is like realty.
> > BTW, I don't have an answer -- and I don't think anyone else does
> > other than "Well, that's the way it *is*!" It was truly a rhetorical
> > question.
> >
> > Tom Field
> >
> **************
>
> The typical answer in the economics literature is that patents are
> considered to be much stronger rights, both because users have some
> rights under copyright that they lack under patent, and because
> independent invention is OK under copyright but not under patent. So
> in balancing the rights of IP owners against the public, it may make
> more sense to have a shorter patent term.
>
> Of course, this doesn't necessarily square with the view of either
> patents or copyrights as "property". Further, recent developments in
> copyright law have tended to expand its scope, arguably upsetting this
> balance.

Perhaps a better answer might be that the copyright laws are authorized under the U.S. Constitution, Article 1, Section 8, Clause 8, which says that "The Congress shall have power ... To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." Thus, a perpetual copyright violates the Constitution, as does a perpetual patent. The trademark laws come under the Commerce clause, so nothing there prevents a perpetual trademark.

The discussions I read about copyrights as property mix the definition by the "person in the street" of property as something he can pick up and carry (or dig in with a shovel) with the legal definition. Law school usually starts with a course on Property in which law students learn that property is a bundle of rights associated with something. In the case of copyright, the rights include that of preventing others from copying the copyrighted item. The references to copyrights as property are usually to emphasize the fact that the rights are transferable to others.

Donald P. Reynolds
Professor of Law and Director of the Center for

   Intellectual Property Law
The John Marshall Law School
Chicago
phone 312-987-1417
fax 312-427-5280
e-mail 7reynold[_at_]jmls.edu Received on Tue Sep 05 1995 - 19:27:45 GMT