Notre Dame Roundtable on Scope, part 5

Abraham Drassinower, Publish and Perish: Remarks on Copyright Duration

Commentators: Barton Beebe and Chris Buccafusco

Beebe: for non-WFH, term is calibrated to lifespan of author.  Why so reliant on the death of the author to measure protection?  Not so interested in the historically contingent elements; more analytical.  Not interested in duration as such, +50, +70, etc.  Not interested in corporate works or even relatively functional works like computer code, or other works of low subjectivity like technical manuals. The ideal © work in this mediation is a novel or critical essay. How would this sensibility, which isn’t concerned w/history, work w/TM law?

Why death? B/c of independent creation as a requirement/doctrine, which sets it off from TM and patent. Result is a play of identity and difference. There is a single text, but two separate authors might have authored it separately.  The two texts would then be treated as different works as a legal matter.  © is indifferent to the objectivity of the work—a communicative act. Two different authors can produce two different communicative acts even if they produce exactly the same text. Author’s status is not transferable. It can’t be suddenly their death that measures the term.  [Two deaths of the author: also a description of WFH, no?]

Millar v. Taylor: personal link b/t author and work allows disclosure w/o abandonment, but that also entails limited duration as right. Author’s authority as speaker can’t survive her own death.

Responses: why doesn’t the argument actually support perpetual ©?  Authority could survive death, couldn’t it?  Gorgeous, uncommodified version of © as communicative acts, not expression on the marketplace. Is this a narrow slice of daily life of © in market/different from standard case of commodified object?

Death of the author: used to support the myth of independent creation, which the paper takes for granted. Duration based on death indicates that the author is the source, not the society etc.

Buccafusco: as a thoroughgoing welfarist, skeptical of logical analysis of legal scheme. If we have a theory of what © is, what should it do/is it likely to do w/r/t more peripheral doctrines? From independent creation we can learn something about duration. But which way does the causal arrow run? Does duration really tell us what the central point of © is?

If certain durations must follow from certain goals of ©, you have to really hammer that home. Counterargument: © has never been linked to the death of the author. Ending at death isn’t the same thing as ending if death—if you register then die, you’d get the full term.  Beginning to apply a fixed term once death occurs is different, and so we need to know how to think about this post-death fixed term. The author’s authority survives, for a rather long time.  Draws on distinction b/t patent and © but never tells us what’s importantly different about what inventors do and why their relationship to their creations is different.

Scope: that I have spoken doesn’t mean you can speak for me, Drassinower says, but that’s except for all the times I can—not substantially similar, under license, fair use, when I inaccurately attribute to you. So what kinds of speech are appropriately the author’s and what are not (this is likely to be in the book but not the chapter).

Drassinower: Tied to the person of the author—the proposition that the work is an act. Independent creation is unthinkable if we think of the work as a thing b/c an independently created work would be the same thing/a trespass. It has to be an origin issue, about acts. Once you think of works as acts, then copies aren’t “things” out there, but rather megaphones through which the author thinks. When the author dies, they’re no longer personifications of the author and their status dies with the author. Link is severed by biological death, and work is now in public domain [after 70 years have passed].  Not applying a theory of anything, just trying to understand why death is in the statute. Either we account for why death is in the statute or we say it shouldn’t be, but our theory of © should account for it, especially given the foundational issue in Millar v. Taylor which is whether there was to be a public domain/limited duration at all.

Fromer: people prefer life plus to fixed term—optimism bias or something else? One thing w/Canadian lens is that you don’t have America’s problem of WFH.  This is a big problem for an Americanist trying to make the same claim as you are—who is authorship given to? You need a new formula once an entity is the author.  Also interesting to frame it as being about death than about life.  What if you framed it another way?  © doesn’t stop at death, sure, but one thing you can say for sure is that © goes through life.

Drassinower: yes, he thinks we misunderstand the relationship b/t author and copyright by having it extend so far past death. 

Yelderman: Authors can lose their rights to speak by transferring ©. Shouldn’t your theory not just give the author a defense but even cause the © transfer to be forfeit?

Said: death of the author/the reader matters at least as much/more. The concept is about creating additional dignitary interests in readers, but you are using it for the author.

Drassinower: we should think of the work as a connection b/t author and audience—it is the site of a relationship, juridically speaking. If that’s what the work is, then one pole’s disappearance makes the whole thing disappear.

Said: if you double down on that characterization, it feels fundamentally incompatible with a property interest at all.  She sees a tertium quid, a space w/a reader’s interest (also a property interest?).

Drassinower: the analogy is not property or patent bargain, but defamation: link w/reputation.  After death as well as in life.  Interested in looking at the text to tell us what differentiates copyright from other regimes: independent creation.  Otherwise: We’d have to understand which parts are historical accidents and which aren’t, which is difficult to do. He’s not sure independent creation is a myth: not about divine creation.  If there’s no independent creation, then © makes no sense as a whole.

McKenna: your method is to try to ID foundational tenets and extract them, then reason about what would make the system work. A lot rides on identifying the critical features. Why not say: a central feature of © is that it lasts 50 years after death?  The fact that it doesn’t expire on death has historically been a feature of every © system and so why don’t you extract that. 

Buccafusco: independent creation is required for patentability (though not infringement). You have to not-copy in an especially clever way, which should produce a strong relationship b/t inventor and creation.

Fromer: in patent what predominates is the length of the duration. You might want to say that inventors also have some sort of connection, but there is a strong interest in keeping the duration much shorter, so lifespan of creator will be problematic.

Drassinower: defense of independent creation in ©, absent in patent, is important.

McKenna: novelty is not about whether you copied it, but whether you made the same thing as something that existed before.  Copying probably makes the same thing, but copying is not the key.

Buccafusco: you get so much from originality in ©, whereas in patent you have to invent and do so much more to qualify for patent.

Drassinower: I’m not trying to find a theory of why patent isn’t perpetual, but rather trying to figure out why death is in the © Act.

Lemley: is the act of authorship static or dynamic?  No concern after death seems to presuppose that author is not speaking any more, even if audience is still receiving message and still cares about the source.  That suggests authorship is a one-time act. But if so, why does it last beyond the moment of creation itself [or publication]? The only reason for duration at all that is moral is the idea that it is a continuing relationship w/the work.  But if that’s right, how do you get a moral theory for stopping at death?  At death economic incentives cease to work, but what else?

Drassinower: can endure, like a reputation, where the right doesn’t endure beyond your life even if the reputation does.  Rule Against Perpetuities: the owner dies and the right persists, but only so long.

Buccafusco: why isn’t the right analogy privacy? Right of first publication—seems just as plausible as the scheme you posit here. Sure, defamation is a different analogy but why pick it?

Lemley: you seem to view my speaking as a continuing act.  If I say it when I’m 15, then forget about it, if it’s still me speaking during my life why doesn’t it continue after my death?

Drassinower: you can no longer authorize or reject speech after you die.

Lemley: what if you’ve assigned the right to authorize?  Couldn’t I contract it to survive my life?

Drassinower: you don’t own it after your life.

Said: does it matter if copyright contributes to works being lost/suppressed, impeding the author’s communicative function for books out of print?  You’ve privileged one thing (authorization) in a way that hurts the author’s interest. That suggests that people’s works who don’t ever fall out of circulation should get better or different treatment, introducing hierarchy of interests. The interests in communication don’t feel static; if you cast them as static for a theoretical/normative purpose, you have to overcome the empirics/theories that would privilege the readers, or privilege other values such as efficiency.

Drassinower: there could be a distance b/t what is happening and what © doctrine is saying. I’m trying to understand how © is operating.  Seems to him that © says that authorship generates a certain kind of right that lasts at least until death.

Lemley: you’re saying I’m still speaking when it’s reused—it’s a new act of speech by me.  But that’s somehow not true after death.  Compelling me to speak is a fiction—it may be completely clear that it’s a pirate copy.

Drassinower: b/c you can neither authorize nor not authorize after you’re dead. Work is ongoing act; each copy is not a commodity but a representation of the author as speaker. I don’t think you can make sense of independent creation and fair use without this concept.