About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

50 J. Copyright Soc'y U.S.A. 1 (2002-2003)
How Long Should a Copyright Last

handle is hein.journals/jocoso50 and id is 13 raw text is: HOW LONG SHOULD A COPYRIGHT LAST? by RICHARD A. POSNER* We have learned from the decision in Eldred (decided by a robust majority of 7 to 2) that a twenty-year extension of the already very long copyright terms (life plus fifty years for most copyrights other than those on works for hire) violates neither the copyright clause of the Constitution nor the First Amendment, even if the extension applies to existing as well as new works. And should Congress as the newly extended copyrights near expiration tack on another twenty years, there is nothing in the ma- jority opinion to suggest that a constitutional challenge to that extension would fare any better than that of Mr. Eldred and his co-plaintiffs. Although I have reservations about the reasoning in the majority opinion (and, for that matter, in the dissenting opinions as well), I do not think that the Court had any real alternative to upholding the Sonny Bono Copyright Term Extension Act.' It was highly popular legislation that did not violate the literal terms of the copyright clause, and neither the ably presented plaintiffs nor the dissenting Justices were able to articulate a satisfactory standard for determining the constitutionality of copyright term extensions. But in upholding the Act, and in implying as I have just suggested that future extensions are highly likely to survive constitutional challenge as well, the Court has flagged a very serious problem. For we shall now have many copyrights lasting a century or more, and with the momentum that the Act and the Court's upholding of it are bound to lend to future extensions, we face the prospect of copyrights that are de facto perpetual or close to it. And such copyrights are a bad thing, although to explain why they are a bad thing will require a careful analysis, an analysis *Judge, U.S. Court of Appeals for the Seventh Circuit; Senior Lecturer, University of Chicago Law School. This is the revised text of the Thirty-Second Annual Don- ald C. Brace Memorial Lecture, sponsored by the Copyright Society of the U.S.A. and delivered on November 18, 2002, at Fordham Law School. The text is based on an article coauthored with William M. Landes, Indefinitely Renewable Copy- right, 70 University of Chicago Law Review 471 (2003), which appears in a slightly different form as Chapter 8 of our book The Economic Structure of Intellectual Property Law (Harvard University Press, forthcoming); the reader is referred to the article and the chapter for details and references. The Supreme Court had not yet decided Eldred v. Ashcroft, 123 S. Ct. 729 (2003), when I delivered the lecture, and my revisions of the text are based in part on what we have learned from that decision. 1 See Richard A. Posner, The Constitutionality of the Copyright Term Extension Act: Law, Economics, Politics, and Judicial Technique in Eldred v. Ashcroft, Sur. Or. REV. (forthcoming). How Long Should a Copyright Last? 1

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most