The Volokh Conspiracy - The Case Against Perpetual Copyright:

In a New York Times op ed, Claremont Institute fellow Mark Helprin argues that we should have copyright laws that give the owners perpetual rights in their intellectual property. In my view, his proposal is deeply flawed. If it had been in force throughout our history, Shakespeare's heirs could presumably forbid any performances of his plays by groups that refuse to give the Bard's descendants a share of the take. As VC readers know, I'm a strong supporter of property rights; this proposal, however, is a bridge too far. Helprin defends his idea by analogy to real property:

What if, after you had paid the taxes on earnings with which you built a house, sales taxes on the materials, real estate taxes during your life, and inheritance taxes at your death, the government would eventually commandeer it entirely? This does not happen in our society ... to houses. Or to businesses. . .

Once the state has dipped its enormous beak into the stream of your wealth and possessions they are allowed to flow from one generation to the next. . .

That is, unless you own a copyright. Were I tomorrow to write the great American novel (again?), 70 years after my death the rights to it, though taxed at inheritance, would be stripped from my children and grandchildren.

Helprin also argues that perpetual copyright is compatible with the Constitution's Copyright Clause, which grants Congress the power to establish intellectual property rights. There are several major problems with Helprin's argument. He fails to consider key differences between intellectual and physical property. Moreover, his proposal is probably unconstitutional.

I. The Difference Between Physical Property and Intellectual Property.

Helprin ignores the crucial difference between copyright and physical property. Property rights in land and physical possessions protect assets that will lose much of their value if anyone is allowed to use them at any time or if the government can expropriate them at will. For example, if anyone could come and use a house anytime they wanted to, that home would lose much of its utility, since the ability to exclude others is a major part of the value of a house. No one could live in the house in safety and privacy, because they could be disrupted by squatters at any time. Economists refer to such goods as ones subject to "rivalrous" consumption. If I use the good, that makes it difficult or impossible for others to use it at the same time. As a result, all of society benefits from having clear rules that assign the right to physical property to individual owners who can exclude others from using the property without the owners' consent.

By contrast, if you "use" the phrases or ideas in one of my articles, that doesn't prevent anyone else (including me) from using them at the same time. Unlike property rights in physical objects, property rights in ideas actually undermine our ability to use resources in a productive manner rather than further it. The "consumption" of ideas is norivalrous.

Moreover, unlike rights to physical property, copyright and other intellectual property rights impose major restrictions on the ability of others to use their own physical property. I cannot use my property to reprint copyrighted works or incorporate patented inventions in a new product design. This too, is a significant difference between intellectual and real property, and a good reason for limiting the scope of the former more than the latter.

II. Why Perpetual Copyright is Unconstitutional.

Finally, Helprin's proposal is probably unconstitutional. The Copyright Clause does not give Congress the power to create perpetual copyright. Instead, it only gives it the power "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." Helprin tries to get around this wording by claiming that Congress could simply "extend at will the term of copyright," and do so repeatedly. However, he ignores the fact that constitutional text allows Congress to create intellectual property rights only in so far as they "promote the Progress of Science and useful Arts." Copyright can only be extended if doing so furthers the creation of useful ideas and inventions. In cases such as Eldred v. Ashcroft, the Supreme Court has (in my view mistakenly) given Congress substantial deference in determining whether an extension of the copyright time limit really is needed to "promote . . . progress." However, even a deferential Court might recoil from a plan to extend copyright forever. Not only is perpetual copyright not needed to promote innovation, it is likely to actually impede it by making it more difficult to create new works that build on copyrighted ideas and images from old ones.

UPDATE: For a detailed analysis of the ways in which indefinite extension of copyright would undermine innovation more than promote it, see this amicus brief in the Eldred case, authored by 17 prominent economists from across the political spectrum.

UPDATE #2: James Grimmelman of Prawfsblawg rounds up critical reaction to Helprin's piece from various other legal scholar/bloggers.

UPDATE #3: For a more detailed explanation of the reasons why perpetual copyright is unconstitutional, see this excellent article by Glenn Reynolds/Instapundit and Robert Merges. As Glenn notes in a recent e-mail to me, some of the reasoning of this article was rejected by the Supreme Court in its Eldred decision. In my view, however (not to mention Glenn's!), the Court got it wrong. In any event, even Eldred does not explicitly endorse completely unlimited copyright extension.

	[Ilya Somin, May 20, 2007 at 11:56pm] Trackbacks The Case Against Perpetual Copyright: In a New York Times op ed, Claremont Institute fellow Mark Helprin argues that we should have copyright laws that give the owners perpetual rights in their intellectual property. In my view, his proposal is deeply flawed. If it had been in force throughout our history, Shakespeare's heirs could presumably forbid any performances of his plays by groups that refuse to give the Bard's descendants a share of the take. As VC readers know, I'm a strong supporter of property rights; this proposal, however, is a bridge too far. Helprin defends his idea by analogy to real property: What if, after you had paid the taxes on earnings with which you built a house, sales taxes on the materials, real estate taxes during your life, and inheritance taxes at your death, the government would eventually commandeer it entirely? This does not happen in our society ... to houses. Or to businesses. . . Once the state has dipped its enormous beak into the stream of your wealth and possessions they are allowed to flow from one generation to the next. . . That is, unless you own a copyright. Were I tomorrow to write the great American novel (again?), 70 years after my death the rights to it, though taxed at inheritance, would be stripped from my children and grandchildren. Helprin also argues that perpetual copyright is compatible with the Constitution's Copyright Clause, which grants Congress the power to establish intellectual property rights. There are several major problems with Helprin's argument. He fails to consider key differences between intellectual and physical property. Moreover, his proposal is probably unconstitutional. I. The Difference Between Physical Property and Intellectual Property. Helprin ignores the crucial difference between copyright and physical property. Property rights in land and physical possessions protect assets that will lose much of their value if anyone is allowed to use them at any time or if the government can expropriate them at will. For example, if anyone could come and use a house anytime they wanted to, that home would lose much of its utility, since the ability to exclude others is a major part of the value of a house. No one could live in the house in safety and privacy, because they could be disrupted by squatters at any time. Economists refer to such goods as ones subject to "rivalrous" consumption. If I use the good, that makes it difficult or impossible for others to use it at the same time. As a result, all of society benefits from having clear rules that assign the right to physical property to individual owners who can exclude others from using the property without the owners' consent. By contrast, if you "use" the phrases or ideas in one of my articles, that doesn't prevent anyone else (including me) from using them at the same time. Unlike property rights in physical objects, property rights in ideas actually undermine our ability to use resources in a productive manner rather than further it. The "consumption" of ideas is norivalrous. Moreover, unlike rights to physical property, copyright and other intellectual property rights impose major restrictions on the ability of others to use their own physical property. I cannot use my property to reprint copyrighted works or incorporate patented inventions in a new product design. This too, is a significant difference between intellectual and real property, and a good reason for limiting the scope of the former more than the latter. II. Why Perpetual Copyright is Unconstitutional. Finally, Helprin's proposal is probably unconstitutional. The Copyright Clause does not give Congress the power to create perpetual copyright. Instead, it only gives it the power "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." Helprin tries to get around this wording by claiming that Congress could simply "extend at will the term of copyright," and do so repeatedly. However, he ignores the fact that constitutional text allows Congress to create intellectual property rights only in so far as they "promote the Progress of Science and useful Arts." Copyright can only be extended if doing so furthers the creation of useful ideas and inventions. In cases such as Eldred v. Ashcroft, the Supreme Court has (in my view mistakenly) given Congress substantial deference in determining whether an extension of the copyright time limit really is needed to "promote . . . progress." However, even a deferential Court might recoil from a plan to extend copyright forever. Not only is perpetual copyright not needed to promote innovation, it is likely to actually impede it by making it more difficult to create new works that build on copyrighted ideas and images from old ones. UPDATE: For a detailed analysis of the ways in which indefinite extension of copyright would undermine innovation more than promote it, see this amicus brief in the Eldred case, authored by 17 prominent economists from across the political spectrum. UPDATE #2: James Grimmelman of Prawfsblawg rounds up critical reaction to Helprin's piece from various other legal scholar/bloggers. UPDATE #3: For a more detailed explanation of the reasons why perpetual copyright is unconstitutional, see this excellent article by Glenn Reynolds/Instapundit and Robert Merges. As Glenn notes in a recent e-mail to me, some of the reasoning of this article was rejected by the Supreme Court in its Eldred decision. In my view, however (not to mention Glenn's!), the Court got it wrong. In any event, even Eldred does not explicitly endorse completely unlimited copyright extension.