Massie: Extending Copyrights Further Will Violate the Constitution’s “Limited Times” Directive 5/5

Our founders were wise to put patents and copyrights in Article I of the Constitution, thereby entrusting Congress to implement and oversee a strong and beneficial Intellectual Property system that encourages innovation. The Patents and Copyrights Clause states, “[The Congress shall have 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.”

In 1790, patents and copyrights were each granted for a period of 14 years, with an option to extend patents another 14 years. In the early 1800’s copyrights could be extended for another seven years. Today patents expire 20 years from the original filing date (which due to the lengthy application process means they are operable for less than 20 years), while copyrights are now valid for the “author’s life” plus 70 years. In many instances, that means copyrights last more than 100 years!  Copyright protections that extend more than a century seem to conflict with the founders’ directive to Congress to issue “exclusive Right” for “limited times” to “promote progress.”

I’ve been concerned that corporate lobbyists have worked to undermine our patent system by encouraging Congress and judges to make patents harder for little guys to enforce and easier for the big copycats to invalidate. But I’m equally concerned that Congress has gone in the other direction with copyrights by extending their terms of coverage more than 10 times since the 1970’s.

This morning, the House Judiciary Committee held an oversight hearing for the U.S. Copyright Office. I asked Shira Perlmutter, the Register of Copyrights and Director of the U.S. Copyright Office, how we got so far off from the original term of 14 years for copyrights. I also got some assurance that she would not support extending their periods of coverage beyond “life of the author plus 70 years.”

I appreciate Register Perlmutter’s willingness to answer the questions I asked about this conflict. She indicated that she would not support efforts to extend copyrights further should the issue arise.

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