From Swords to Ploughshares
Elgar Law and Entrepreneurship series
Edited by Lateef Mtima
Chapter 9: Worth more dead than alive: Join the NoCopyright Party and start killing copyrights for their own good
We should have listened to Thomas Jefferson. Ever-suspicious of both monopolies and legislators, he wanted the Constitution to say: Monopolies may be allowed to persons for their own productions in literature and their own inventions in the arts for a term not exceeding __ years but for no longer term and for no other purpose. In other words, no monopolies would be allowed except for patents and copyrights, and even those rights could not extend beyond a constitutionally-set maximum term. Apparently, Jefferson felt that legislators could not be trusted when it came time to setting – or extending – the terms of patents and copyrights, and was hoping for something stronger than the Constitution’s “limited times” language. True to form, legislators soon proved him right, by extending copyright terms from the original maximum of 28 years to 42 years in 1831, to 56 years in 1909, to life plus 50 years in 1976, and to the current term of life plus 70 years – life plus three generations – in 1998. In a cruel twist that Jefferson might nonetheless have approved of (at least in principle), the Supreme Court has refused to get involved, and (adding insult to injury) has even pointed to Congress’s repeated extensions as evidence that the practice must be constitutional.
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