Derek Khanna

Today R Street Institute released a report on copyright duration entitled "Guarding Against Abuse – Restoring Constitutional Copyright."

Copyrights are intended to encourage creative works through the mechanism of a statutorily created limited property right. Under both economic and legal analysis, they are recognized as a form of government-granted monopoly.

"The limited scope of the copyright holder's statutory monopoly ... reflects a balance of competing claims upon the public interest: Creative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts. The immediate effect of our copyright law is to secure a fair return for an ‘author's' creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good." (Twentieth Century Music Corp. v. Aiken)

Economic efficiency and constitutional law both suggest copyrights should solve potential market failures. In examining how long the specific terms for copyright and patent should be, Milton Friedman deemed the subject a matter of "expediency" to be determined by "practical considerations." Friedrich Hayek, among the most forceful defenders of the importance of property rights, distinguished copyright from traditional property rights and identified a number of problems with modern copyright that he said called for "drastic reforms."

The conservative movement, which largely has supported originalist methods of interpreting the Constitution, traditionally has been in favor of copyright reform, with proposals usually including shorter copyright terms. See, for example, the work of Phyllis Schlafly with the Eagle Forum: "Congress seems intent on changing all our intellectual property laws to benefit big corporations.”

"Limited time" is not only a constitutional requirement, it is an excellent rule. There is no good reason for the remote descendants of James Madison, Julia Ward Howe, or Thomas Nast to receive royalties on the Federalist Papers, the Battle Hymn of the Republic, or Santa Claus. . ."

Derek Khanna

"Derek Khanna is a Yale Law Fellow with the Information Society Project, columnist and policy expert. Until recently he was a professional staff member for the House Republican Study Committee, where he authored the widely read House Republican Study Committee report “Three Myths about Copyright Law.” The report on copyright reform was praised throughout the tech community as being "brilliant" and a "breath of fresh air" and received praise from various conservative organizations. Derek has spoken at the Consumer Electronics Show as a technology expert and will be speaking at the Conservative Political Action Conference. Derek was referred to as a “rising star” in the party by David Brooks in the New York Times. Mr. Khanna continues to be a major thought leader on technology issues and disruptive innovation." He can be found on Twitter at @derekkhanna.


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