Copyright's Hidden Assumption: A Critical Analysis of the Foundations of Descendible Copyright

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.

Keywords: copyright, legal history, Victor Hugo, infrastructure, inheritance, heirs, Eldred, CTEA, extension, copyright term, public domain

JEL Classifications: H23, O31, O34, Z1, Z10

Working Paper Series