Derek Khanna, ‘Guarding Against Abuse: The Costs of Excessively Long Copyright Terms’

Introduction:
… This Essay will start by identifying the original public meaning of the copyright clause in the Constitution and then argue that restoring constitutional copyright is up to Congress to fix. It will show how a dedicated group of special interests has systematically distorted this system since 1790, specifically since the 1970’s. Then it will explore the documented costs of excessive copyright duration of unprecedented length in American history – such long copyright duration that it restricts individual liberty, limits individuals’ access to historical material, increases transaction costs for content creators and is resulting in the epidemic of orphan works. Copyright terms 580% longer than those of our Founders significantly impedes digital archiving of our cultural heritage, degrades education and learning opportunities, depresses the amount of publicly available content, and prevents access to our cultural legacy. Perhaps most perniciously, these policies also stifle content creation and hinder artistic ability to create. Lastly this Essay will explore the literature on optimal copyright term duration, and identify the divergence between the interests of content creators and content owners. To restore the original public meaning of copyright, copyright’s term must be shortened, and to do so we must reconsider existing international treaties on copyright and not sign any treaty that either would lock in existing terms or extend terms even longer. Finally, copyright terms must not be extended to ‘life plus 100’ when the next copyright extension bill may come before Congress in 2018.

Derek Khanna, Guarding Against Abuse: The Costs of Excessively Long Copyright Terms. 23 CommLaw Conspectus 52 (2014).

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