Rethinking Handing Copyright On To Heirs Beyond Death

from the doesn't-make-sense dept

As you're well aware, we've seen copyright extended over and over again, in ways that seem to go wholly against the purpose of copyright. After all, copyright is designed to encourage the creation of new content. Extending it after that content has been created makes no sense. The content was already created. However, not only has it been extended over and over again, but people are still pushing for it to be extended, even to the point that some claim that copyright should last forever (or, when pushed about the Constitution's demand that copyright be for limited times, they'll say "forever minus a day.") One of the common arguments in favor of copyright extension is that copyright should be passed down to "heirs," so that just as you can inherit a house, you should be able to inherit copyright. However, there's some new research challenging (or, rather, demolishing) that thinking. Reader (and frequent Techdirt critic) Wilton points us to this paper that questions the very premise of "descendible copyright" by Deven Desai.

Desai points out that the needs of "heirs" are quite often used to defend copyright extension because it creates an emotional image (you don't want the poor kids of an artist to go starving, do you?), but it's entirely misleading and unfair:

Yet, once one probes the heirs assumption, one finds it lacks any historical or theoretical basis. Instead, the assumption hides rent-seeking behavior, clashes between authors and publishers regarding who can extract that rent, and political maneuvering by the copyright industry; all of which are behaviors that copyright policy ought to avoid and/or prevent. In addition, the image of stealing food from heirs permits the debates to marginalize society's interest in a robust creative system with lower costs regarding the access to and use of knowledge and information.

In fact, Desai can find no support for the idea that heirs deserve the copyright of others. He does find it acceptable that copyright should last throughout an author's life, but should end upon death. I have trouble supporting the idea that copyright should even be that long, but the total dismantling of any support for the idea that heirs deserve copyrights is well worth reading. He points out that the whole point of copyright law is to encourage the production of new works -- and once someone is dead, they're not going to produce any new works, so it's silly to continue to "encourage" them.

For me, though, the most troubling part in reading the quotes Desai highlights of politicians and heirs fighting for copyright extension is this impression that somehow the public domain is bad. Just read this, from Senator Orin Hatch, to defend copyright extension a decade ago:

I would like to draw particular attention to the career of Walter Donaldson.... If the present copyright law had been in effect in the 1920's, all of Walter Donaldson's compositions would fall into the public domain within the next 2 years.

The implication,there, is that somehow this is a bad thing. Of course, reality is exactly the opposite. The deal with the public is that creators are given a monopoly for a limited time, so that it eventually goes into the public domain where everyone can benefit from it. Yet Hatch is implying that it's somehow a problem that the public would benefit from Donaldson's works.

Another stunning quote is from Samuel Clemens' (better known as Mark Twain) argument in favor of copyright extension, invoking his daughters as being too clueless and helpless to earn any money on their own:

My copyrights produce to me annually a good deal more money than I have any use for. But those children of mine have use for that. I can take care of myself as long as I live. I know half a dozen trades, and I can invent a half a dozen more. I can get along. But I like the fifty years' extension, because that benefits my two daughters, who are not as competent to earn a living as I am, because I have carefully raised them as young ladies, who don't know anything and can't do anything. So I hope Congress will extend to them that charity which they have failed to get from me.

This reinforces the totally unsubstantiated claim that copyright is designed as a welfare system to "protect" those who have no other means of earning a living. Of course, copyright wasn't designed for that purpose at all. Why the government should support it as a system of welfare for the children of copyright creators is never clearly explained at all. Desai contrasts Clemens' assertions with those of Victor Hugo, who while a big supporter of copyright and authors' rights, also spoke eloquently of how important the public domain is, and how it needs to be supported. He does suggest a royalty system for heirs -- but not a copyright system, saying that the ideas belong to the public.

So, the next time you see someone arguing that copyright should be extended in perpetuity for the sake of "their children," perhaps note that there's nothing in copyright law that has ever supported such an assertion.

Filed Under: copyright, descendability, deven desai, heirs