Today I published a report with R Street Institute calling for Congress to restore constitutional copyright through significantly shorter copyright terms. I hope you check it out, as it delves into the impact of our unusually long copyright laws among a variety of aspects of society, historical preservation, orphan works, remix music, and the ability to make new movies based upon the public domain like Disney. Report full is here: http://www.rstreet.org/wp-content/uploads/2014/04/RSTREET20.pdf.
INTRODUCTION: 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.
Economic efficiency and constitutional law both suggest copyrights should serve to solve potential market failures, to “promote the progress of the sciences.” 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.
Historically, copyright terms have been quite short. As required by Article 1, Section 8, Clause 8 of the U.S. Constitution, copyright can only be granted for “limited times.” Evidence from the Founding Era suggests this limited duration was central to the original public meaning of the instrument, as evident in this definition from an 1803 British legal dictionary:
COPY-RIGHT [sic], the exclusive right of printing and publishing copies of any literary performance, for a limited time.
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.