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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