Academic journal article Harvard Journal of Law & Technology

Disciplining the Dead Hand of Copyright: Durational Limits on Remote Control Property

Academic journal article Harvard Journal of Law & Technology

Disciplining the Dead Hand of Copyright: Durational Limits on Remote Control Property

Article excerpt

TABLE OF CONTENTS    I. INTRODUCTION  II. PROPERTY, "INTELLECTUAL PROPERTY," AND TIME III. COPYRIGHT DURATION AND ITS DISCONTENTS  IV. REMOTE CONTROL PROPERTY AND THE DEAD HAND   V. LIMITING THE DURATION OF REMOTE CONTROL PROPERTY      A. The Rule Against Perpetuities      B. Ex Ante Durational Limits      C. Recording Requirements      D. Ex Post Termination of Obsolete Interests  VI. CONCLUSION: DISCIPLINING THE DEAD HAND OF COPYRIGHT 

I. INTRODUCTION

This Article considers copyright as intellectual property. It focuses specifically on how copyright compares to other types of property on the dimension of time--that is, how long the exclusive rights associated with copyrights last compared with the exclusive rights associated with property rights in land and other tangible objects. Scholars and advocates exploring this comparison have noted that tangible property rights are potentially infinite in duration, while copyrights are constitutionally required to be for "limited times." (1) This characterization is ripe for refinement.

While the duration of copyright is theoretically limited, for many works it might as well be infinite. This is true, for example, for some so-called "orphan works" whose owners cannot be located. These works may be underused during their long copyrights. (2) If such under-use includes failure to preserve properly or duplicate existing copies of the works (fragile books or films, for example) then their use will also be effectively restricted even after the copyrights have expired. (3) Thus the duration of copyright's restrictions can be practically infinite, and yet tragically worthless in the long run to both lost copyright owners and society at large. (4) The possibility of infinitely frustrating copyrights should be particularly troubling to authors, for it is their intellectual legacies that stand to be lost when copyright dooms works to perpetual underuse.

The unintended consequences of ever-longer copyright terms are well documented. (5) A wide variety of proposals has been offered to address them--including ex ante durational limits, (6) more comprehensive recording to help keep track of copyright owners, (7) and time sensitive application of doctrines like fair use. (8) But these proposals are often met with objections framed in terms of property rights, based on the assertion that tangible property rights are infinite and copyrights should be infinite as well (or at least as close to infinite as the Constitution's "limited times" language will bear). (9)

This logic is faulty (10) and its underlying premise is false. While the duration of rights to land and other tangible objects may be theoretically infinite, I will demonstrate below that a variety of limiting doctrines operate to terminate property rights when they threaten to prevent societally beneficial use of valuable resources. These doctrines offer models for grappling with the problems caused by copyrights that keep getting longer on the books, and even longer on the ground. They also help us think about the legacies left by the authors who are at the heart of copyright law. Ironically, long copyrights that produce dynasties for a few lucky copyright owners could destroy the intellectual legacies of the vast majority of authors.

II. PROPERTY, "INTELLECTUAL PROPERTY," AND TIME

The U.S. Constitution authorizes Congress to "promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." (11) This constitutional authorization for our federal copyright and patent laws is often referred to as the "Intellectual Property Clause." (12) Indeed, the term "intellectual property" is now ubiquitous in discussions about patent, copyright, and related fields of law. But the term is controversial. (13) Some scholars and advocates object to the term and to the notion it reflects--that the bodies of law that give authors and inventors rights in their intellectual works share core characteristics with the bodies of law that give owners rights to land and physical objects. …

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