Why Should Copyrights Expire?

In last Sunday's NY Times Week in Review section, the great novelist, Mark Helprin, raises a telling point about the expiration of copyrights after 70 years. He acknowledges that limited granting of copyrights is specifically embedded in the Constitution. His questions gets to why that should persist in our time. His essential point: intellectual property rights should be the same as real property rights.

Were I tomorrow to write the great American novel (again?), 70 years after my death the rights to it, though taxed at inheritance, would be stripped from my children and grandchildren. To the claim that this provision strikes malefactors of great wealth, one might ask, first, where the heirs of Sylvia Plath berth their 200-foot yachts. And, second, why, when such a stiff penalty is not applied to the owners of Rockefeller Center or Wal-Mart, it is brought to bear against legions of harmless drudges who, other than a handful of literary plutocrats (manufacturers, really), are destined by the nature of things to be no more financially secure than a seal in the Central Park Zoo.

The answer is that the Constitution states unambiguously that Congress shall have the power “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.” (The italics are mine, the capitalization was likely James Madison’s.)

It is, then, for the public good. But it might also be for the public good were Congress to allow the enslavement of foreign captives and their descendants (this was tried); the seizure of Bill Gates’s bankbook; or the ruthless suppression of Alec Baldwin. You can always make a case for the public interest if you are willing to exclude from common equity those whose rights you seek to abridge. But we don’t operate that way, mostly.

Helprin argues that our current nature as a society whose economy is driven by ideas, no longer by sweat and property, demands a change in these limitations:

And in Jefferson’s era 95 percent of the population drew its living from the land. Writers and inventors were largely those who obtained their sustenance from their patrimony or their mills; their writings or improvements to craft were secondary. No one except perhaps Hamilton or Franklin might have imagined that services and intellectual property would become primary fields of endeavor and the chief engines of the economy. Now they are, and it is no more rational to deny them equal status than it would have been to confiscate farms, ropewalks and other forms of property in the 18th century.

Helprin's solution is to use the language of the Constitution regarding "limited times". In the past, the Congress has extended the length of copyrights. Justice, Helprin argues, demands that the current 70 year period be extended, "Congress is free to extend at will the term of copyright. It last did so in 1998, and should do so again, as far as it can throw."