Who Cares About Heirs (In Copyright)?

Deven R. Desai, Thomas Jefferson School of Law

Abstract

Although the harms of the Copyright Term Extension Act and Congress’ authority to pass the act have been well-discussed, an underlying assumption merits consideration: heirs matter in copyright. When one examines the dominant theories offered to justify copyright from utilitarian to Lockean labor to Hegelian personhood to social planning, no justification for descendible copyright is found. Even if one cedes the idea that custom or tradition supports the ability to inherit real property or money, the nonrivalrous nature of copyright changes the analysis. Exploitation of copyrighted work in life allows one to accumulate wealth and pass it on to descendants. In contrast, allowing the underlying work that can be exploited in life to pass to the next generation denies others the ability to use the intellectual resources that have already been exploited. In addition, investigating the nature of creative and productive systems reveals that the longer such resources are locked up, the more creativity and innovation are hindered and harmed rather than increased. This result poses an additional harm as it limits the material available for individuals to use as they develop what Martha Nussbaum has called the basic capability to experience and create expressive works. As such this Paper argues that life is the proper and theoretically supported terminus for copyright interests.