Derek Khanna is a former US Republican House staffer who got fired for writing a paper that used careful objective research to argue for scaling back copyright. Now, Khanna is a fellow at R Street, where he's expanded on his early work with a paper called Guarding Against Abuse: Restoring Constitutional Copyright [PDF] https://www.rstreet.org/research/guarding-against-abuse-restoring-constitutional-copyright/, which tackles the question of copyright terms from a market-economics approach.
The framers incorporated a modified version of the British legal system of copyright, first into state laws; then, in the specific language that appears in the Constitution; and finally, in the federal statute adopted in 1790. The Copyright Clause limited the duration of both copyright and patents, and when the founders wrote “limited times,” that limitation historically had been for 14 years. That original U.S. statute created a 14-year term, with the option of a 14-year extension if the author was still alive. Until 1976, the average copyright term was 32.2 years. Today, the U.S. copyright term is the life of the author, plus 70 years.
Side note: One of the biggest lobbyists to extend copyright has been the Disney corporation, because they repeatedly tried to prevent Mickey Mouse from entering into the public domain.
By contrast, patent terms have changed very little. Today’s term for utility patents is either 17 years from patent issuance or 20 years from patent filing, whichever is longer. (The term for design patents, which resemble copyrights in some key respects, is still the original 14 years.) As legal historian Edward Walterscheid puts it, while patents and copyrights were included in the same clause of the Constitution and originally had the same or similar durations, the patent term has increased by just 43 percent while the copyright term has increased by almost 580 percent. Congress must justify why a 20-year term can provide sufficient incentive to inventors, but not to writers and artists.
The Supreme Court has been relatively clear on the ultimate purpose and goals of the Copyright Clause in the Constitution: 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.
The primary objective of copyright is not to reward the labor of authors, but “[t]o promote the Progress of Science and useful Arts.” To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work.
Khanna recommends a new copyright policy. There would be a free 12-year copyright term for all new works. Following that, there could be an elective 12-year renewal, at a cost of 1 percent of all US revenue from the first 12 years. There would then be two elective 6-year renewals, at a cost of 3 percent and 5 percent of revenue, respectively. There is one final elective 10-year renewal period at a cost of 10 percent of all overall revenue, minus fees paid for the previous renewals. This proposal would terminate all copyright protection after 46 years.
In Canada, the copyright term is the life of the author plus 50 years.
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