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2011 Wis. L. Rev. 219 (2011)
The Life and Death of Copyright

handle is hein.journals/wlr2011 and id is 223 raw text is: THE LIFE AND DEATH OF COPYRIGHT DEVEN R. DESAI* Copyright law operates under a hidden assumption: that copyright after death is the same as copyright during life. In the United States, the duration of copyright is the author's life plus seventy years. In debates over copyright's duration, those in favor of longer terms and even those in favor of shorter ones have treated pre- and post-death copyright as equal. The law, as well as the current discourse about copyright, merely focuses on time. In this Article, Professor Deven Desai critiques the post-mortem assumption-that the consequences of copyright protection during the creator's life are the same as after the creator's death. He contends that the law must look beyond merely the span of time of copyright protection and that copyright's extension after the author's death is unjustifiable. He explores the historical, philosophical, and economic justifications for copyright after death and concludes that it should not matter in copyright policy. Introduction .................................... .....220 I. Views of Life and Death in Copyright .................222 A. Prologue: The Latest Frays, Current Calls for Extension, and the CTEA of 1997 ..................223 B. Pre-CTEA Treatment of Copyright After Death...........227 1. The 1831 Revision..........................................228 2. The 1909 Revision..........................................231 3. The 1976 Revision.........................235 * Academic Relations Manager, Google, Inc.; Associate Professor, Thomas Jefferson School of Law (on leave). The views, opinions, and statements in the work are solely the author's and in no way reflect or should be attributed to Google's views or positions. Parts of this Article have benefited from discussions with and the encouragement and feedback of Dana Becker, Barton Beebe, Al Brophy, Dan Burk, Adam Candeub, Margaret Chon, Stacey Dogan, Mary Dudziak, Brett Frischmann, Shubha Gosh, Roberta Kwall, Mark Lemley, Doug Lichtman, Doris Long, Michael Madison, Ray Maddoff, Eric Mitnick, Adam Mossoff, Mark McKenna, Beth Noveck, Frank Pasquale, William Patry, Margaret Jane Radin, Sandra L. Rierson, Mark Schultz, Daniel Solove, Ned Snow, Susan Tiefenbrun, Rebecca Tushnet, Spencer Waller, Mark Weiner, Alfred Yen, and Peter Yu. I also received helpful comments from the participants at the IP Scholars Conference, August 2007, at Depaul University College of Law; at the IP Roundtable, Drake University Law School, February 2008; at the University of San Diego School of Law, Work, Welfare, and Justice Seminar, January 2008; and the Works in Progress Intellectual Property Colloquium, October 2008, at Tulane University. I could not have worked on the French historical material without the aid of Monica Stampfl. And, I thank Professor Shubha Ghosh and the Wisconsin Law Review for their generous time and support in hosting this Symposium. I am grateful for all the input and note that errors are mine alone.

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