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.

Donald Reynolds replied:
>
> 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.
>

Well, yes, but I thought Tom Field was asking why patent terms were so short relative to copyright terms. Since the wording of the constitutional grant for the two is identical, I'm not sure you can find the answer there.

Mark Lemley
Assistant Professor, University of Texas School of Law Of Counsel, Fish & Richardson, P.C.
mlemley[_at_]mail.law.utexas.edu Received on Wed Sep 06 1995 - 16:19:37 GMT