The Life and Death of Copyright

Abstract

Copyright law operates under a hidden assumption: that copyright after death is the same as copyright during life. In the United States, the duration of copyright is the author’’s life plus seventy years. In debates over copyright’’s duration, those in favor of longer terms and even those in favor of shorter ones have treated pre- and post-death copyright as equal. The law, as well as the current discourse about copyright, merely focuses on time. In this Article, Professor Deven Desai critiques the post-mortem assumption— — that the consequences of copyright protection during the creator’’s life are the same as after the creator’’s death. He contends that the law must look beyond merely the span of time of copyright protection and that copyright’’s extension after the author’’s death is unjustifiable. He explores the historical, philosophical, and economic justifications for copyright after death and concludes that it should not matter in copyright policy.

Keywords: copyright, inheritance, property, copyright history, intellectual property, public domain, Victor Hugo, Berne Convention, Inheritance, Heirs, Eldred, CTEA, Extension, Copyright Term

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