January 2013

The U.S. Constitution authorizes Congress to establish copyright “for limited times,” “to promote the progress of science and useful arts.” Yet throughout our country’s history, and particularly in the twentieth century, copyright terms have steadily grown longer. If such extensions continue as regularly as they have, one may easily argue that copyright isn’t for a limited time in any practical sense. Worse, the terms themselves may simply be too long in light of their stated public policy goals.

Is copyright still serving its original purpose? Could it serve that purpose better? This month’s lead essayist, political consultant and author Derek Khanna, argues that the answer is yes. Copyright terms should be shortened, and he describes several opportunities and strategies for doing so.

Copyright is an area of public policy in which disagreements exist both on principle and in practical implementation. To discuss these, we have invited Cato adjunct scholar and tech policy author Timothy B. Lee, professor Mark Schultz of Southern Illinois University School of Law, and Ryan Radia, Associate Director of Technology Studies for the Competitive Enterprise Institute.


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Lead Essay

  • Derek Khanna argues that copyright was never intended to stand in perpetuity, yet that is in effect what we have for a large number of works today. Copyright’s original purpose was not to compensate content creators, but to promote the arts and sciences, as explained in the Constitution. Returning to that aim should entail shorter copyright terms, which permit future reuses of creative content. Khanna outlines several upcoming opportunities to move in this direction.

Response Essays

  • Since the passage of the 2008 PRO-IP Act, the federal government has been able to use civil asset forfeiture to circumvent even having to make a case against copyright infringers. It may now simply seize and shut down allegedly violating websites. Libertarians have always found civil asset forfeiture troubling, and its extension into intellectual property should be reversed. Timothy B. Lee argues that this is one place where our copyright system is ripe for reform.

  • Ryan Radia argues for a middle path on intellectual property. He reminds those who treat copyright as a privilege or a subsidy how similar copyright is to traditional property protections. He further reminds those who favor the current system that in practice, even property rights in land are subject to abridgement in the name of efficiency.

  • Mark Schultz argues that labeling copyright a regulation rather than a property right will perversely result in more regulation and less freedom. Copyright is a flexible system that allows private bargaining and a wide array of mutually satisfactory transactions. Indeed, the creative use of copyright has already substantially mitigated many of the perceived dangers of Digital Rights Management. Considered as such, the private ordering system known as copyright is worth defending.

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