Re: Constitutional Challenge to (C) Code

Amy Stoller <redherring[_at_]tuna.net> wrote:
>
> If you have produced any intellectual property, your heirs will have
> control over its disposition and will be able to benefit from it for
> seventy years after you die. Lifetime plus seventy years is by
> definition a limited time. The extension from fifty to seventy years
> brings the US in line with the rest of the signatories to Berne and
> gives artists a chance to leave something to their children with a
> reasonable hope that those children may benefit thereby. It is a
> sensible provision, given increased life expectancy. I hope it is not
> your position that creators and owners of intellectual property should
> be unable to leave anything of value to their spouses and children, or
> that their heirs should have to endure without remedy uses of their
> spouses or parents' life work which are repugnant to them.
>

Life plus 1 billion years is also a "limited time", but it is essentially meaningless. During the existence of the US, copyright has expanded from 14 years of protection (extendable to 28) to what may now be over 120 years of protection for some individuals. There is no plausible "life expectancy" justification for this increase. The explanation is that some very powerful owners of some very old copyrights don't want those copyrights ever released into the public domain. [Many of these are corporations, by the way, and not the great-grandchildren of authors who in theory would be the main beneficiaries].

Berne requires only 50 years of protection; certainly not life plus 70. Nor is it the case that US law would be "in compliance" with the rest of the world if we pass this statute. [As far as I can tell, Germany decided life + 70 was appropriate, and the rest of the world concluded it had no choice but to follow suit. Copyright law has become a ratchet -- it seems it can expand, but never ever contract].

The argument that your children (and their children, and their children) should enjoy ownership of the copyrights is based on a view of copyright as equivalent to real property. But copyright has never been real property. It has always been a limited right, that gives some incentive to the copyright owner while preserving something for the public as well. It is the latter part of the balance -- the goal of preserving something for the public -- that we are in the process of dismantling.

Mark Lemley	Assistant Professor, University of Texas School of Law
Of Counsel, Fish & Richardson, P.C.	mlemley[_at_]mail.law.utexas.edu

Berkeley conference on UCC Article 2B, April 23-25 1998: http://sims.berkeley.edu/BCLT/events/ucc2b/

Information on UT's Intellectual Property program: http://www.utexas.edu/law/acadaff/intelprop/

My publications list: http://www.law.utexas.edu/lemley/pubs.htm Received on Tue Mar 31 1998 - 15:38:35 GMT