Subotnik on Copyright and T&E

In a post last week, I emphasized the need for a better grasp on what motivates intellectual property estates.  Well, hot off the SSRN press is Eva Subotnik's excellent new article, Copyright and the Living Dead? Succession Law and the Postmortem Term, forthcoming in Harvard J. L. & Tech.  Here's the abstract:

A number of commentators have recently objected to the existence of any postmortem period of copyright protection. Absent from the contemporary debate over this issue, however, is a systematic study of how longstanding succession law theories and doctrines, which govern the at-death transmission of other forms of property, bear on the justifications for, and scope of, postmortem copyrights. This Article takes up that task. It applies the justifications for, and incidents of, the generally robust principle of testamentary freedom to the particular case of copyrights.

The comparative analysis undertaken here suggests two principal lessons. First, succession law principles do provide discrete, though qualified, support for a postmortem term that, in addition to property theories more generally, should be considered in any rigorous debate over copyright duration. Second, more precision should be used in categorizing the costs associated with postmortem protection. In particular, in many instances the costs should be conceptualized as resulting from suboptimal stewardship by the living rather than from dead-hand control. This is not merely a matter of semantics. Distilling the most pressing costs is key to identifying the most appropriate means of addressing them, such as the shortening of the postmortem term, the reining in of dead-hand control where it does exist, and/or the instantiation of better stewardship practices among the living.

From my perspective, Subotnik's article makes at least two important contributions to the literature:

First, she brings copyright law more explicitly into conversation with trusts & estates theory and scholarship.  The basic term of copyright is the author's life plus an additional 70 years, meaning that succession law issues are baked deeply into the structure and day-to-day practice of copyright.  Yet although copyright scholars have looked to a variety of other fields in/outside the law (e.g. property law, economics, psychology, literary theory) to unravel some of the difficult questions at the core of copyright (e.g. author incentives, dissemination of creative works, and cultural "progress"), only a small body of scholarship has grappled with how wills, trusts, and intestacy laws can help mediate competing claims to valuable resources.  Subotnik provides some useful new ways of using succession law to think about the very long postmortem copyright term, and her article more broadly reads as a blueprint for some fruitful conversations between and among copyright and T&E scholars.  

Second, Subotnik's article begins the useful task of disaggregating the initial "life" term from the "plus 70."  Often in debates around the lengthy copyright term, the life+70 term is treated as one continuous time period, in which the marginal incentive to an author of each additional year of exclusivity declines into essentially nothing.  However, recognizing the discontinuities between the life and postmortem terms can shed light on questions of both author incentives and cultural stewardship.  As Subotnik observes, succession laws generally recognize the strong desire for individuals to provide for their loved ones, the sentimental attachment to particular items, and an interest in preserving legacy.  Structuring copyright around a postmortem term might accordingly provide a qualitatively different set of incentives than the financial incentives typically acknowledged in the case law.  On the cultural stewardship issues, authors and their heirs are often differently situated with respect to downstream uses of copyrighted work--e.g. Sub0tnik mentions that Kurt Vonnegut gave permission to a biographer to publish portions of his private letters, only to be revoked by his children after his death.  She accordingly usefully suggests that problems with a postmortem copyright term should not be thought of solely in terms of the author's deadhand control of the living but in terms of suboptimal stewardship by the living.  Definitely worth a read!