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. . ."
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