Constructing Copyright's Mythology

The Green Bag, Vol. 6, Autumn 2002

11 Pages Posted: 6 Jan 2003

See all articles by Thomas Nachbar

Thomas Nachbar

University of Virginia School of Law


The paper offers a narrative response to recent claims about copyright's historical meaning and the importance of constitutional restrictions on the copyright power. Specifically, I address two arguments advanced by the petitioners in Eldred v. Ashcroft: that a grant of exclusive rights is constitutional only if given in exchange for an authors' act of creation, and that the Framers constitutionally limited the duration of copyright in order to prevent publishers from exercising widespread control over the content of American works of authorship. The paper concludes that neither claim has an historical basis and cautions generally against two errors that persistently arise in attempts to ground modern copyright policy in some ideal of copyright as envisioned by the Framers.

Suggested Citation

Nachbar, Thomas, Constructing Copyright's Mythology. The Green Bag, Vol. 6, Autumn 2002, Available at SSRN: or

Thomas Nachbar (Contact Author)

University of Virginia School of Law ( email )

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