DISCIPLINING THE DEAD HAND OF COPYRIGHT: DURATIONAL LIMITS ON REMOTE CONTROL PROPERTY.

• Author: Van Houweling, Molly S.
• Position: Symposium: Intellectual Property and the New Private Law

TABLE OF CONTENTS I. INTRODUCTION 53 II. PROPERTY, "INTELLECTUAL PROPERTY," AND TIME 55 III. COPYRIGHT DURATION AND ITS DISCONTENTS 57 IV. REMOTE CONTROL PROPERTY AND THE DEAD HAND 60 V. LIMITING THE DURATION OF REMOTE CONTROL PROPERTY 63 A. The Rule Against Perpetuities 63 B. Ex Ante Durational Limits 65 C. Recording Requirements 68 D. Ex Post Termination of Obsolete Interests 71 VI. CONCLUSION: DISCIPLINING THE DEAD HAND OF COPYRIGHT 73 I. INTRODUCTION

This Article considers copyright as intellectual property. It focuses specifically on how copyright compares to other types of property on the dimension of time--that is, how long the exclusive rights associated with copyrights last compared with the exclusive rights associated with property rights in land and other tangible objects. Scholars and advocates exploring this comparison have noted that tangible property rights are potentially infinite in duration, while copyrights are constitutionally required to be for "limited times." (1) This characterization is ripe for refinement.

While the duration of copyright is theoretically limited, for many works it might as well be infinite. This is true, for example, for some so-called "orphan works" whose owners cannot be located. These works may be underused during their long copyrights. (2) If such underuse includes failure to preserve properly or duplicate existing copies of the works (fragile books or films, for example) then their use will also be effectively restricted even after the copyrights have expired. (3) Thus the duration of copyright's restrictions can be practically infinite, and yet tragically worthless in the long run to both lost copyright owners and society at large. (4) The possibility of infinitely frustrating copyrights should be particularly troubling to authors, for it is their intellectual legacies that stand to be lost when copyright dooms works to perpetual underuse.

The unintended consequences of ever-longer copyright terms are well documented. (5) A wide variety of proposals has been offered to address them--including ex ante durational limits, (6) more comprehensive recording to help keep track of copyright owners, (7) and time-sensitive application of doctrines like fair use. (8) But these proposals are often met with objections framed in terms of property rights, based on the assertion that tangible property rights are infinite and copyrights should be infinite as well (or at least as close to infinite as the Constitution's "limited times" language will bear). (9)

This logic is faulty (10) and its underlying premise is false. While the duration of rights to land and other tangible objects may be theoretically infinite, I will demonstrate below that a variety of limiting doctrines operate to terminate property rights when they threaten to prevent societally beneficial use of valuable resources. These doctrines offer models for grappling with the problems caused by copyrights that keep getting longer on the books, and even longer on the ground. They also help us think about the legacies left by the authors who are at the heart of copyright law. Ironically, long copyrights that produce dynasties for a few lucky copyright owners could destroy the intellectual legacies of the vast majority of authors.

2. PROPERTY, "INTELLECTUAL PROPERTY," AND TIME

   The U.S. Constitution authorizes Congress 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." (11) This constitutional authorization for our federal copyright and patent laws is often referred to as the "Intellectual Property Clause." (12) Indeed, the term "intellectual property" is now ubiquitous in discussions about patent, copyright, and related fields of law. But the term is controversial. (13) Some scholars and advocates object to the term and to the notion it reflects--that the bodies of law that give authors and inventors rights in their intellectual works share core characteristics with the bodies of law that give owners rights to land and physical objects. (14)

   One oft-cited distinction between copyright and patent law on the one hand and the laws governing property in tangible things like land and chattels on the other is that copyright and patent law are subject to constitutional language constraining the duration of authors' and inventors' rights to only "limited Times." (15) To those skeptical of the notion of copyright and patent as forms of "property," this finite duration of authors' and inventors' rights is one of many ways in which those rights do not and should not operate like property. These skeptics point to the expansion in the duration of copyright as a way in which copyright is becoming more like tangible property and violating the spirit--if not the letter--of the constitutional limitation. (16) Conversely, some of those who most fully embrace the concept of intellectual property argue that copyrights and patents should--like other forms of property--last forever. (17) Indeed, congressional testimony leading up to the passage of the most recent extension of copyright duration made frequent reference to the perceived unfairness of copyright owners suffering from expiration of their rights when other property owners do not. (18)

   On the debate about whether "intellectual property" is a useful category, my own view is that the law of tangible property can be an important source of insights about the benefits and costs of granting people rights to control the use of valuable resources, and about the various ways those rights and corresponding remedies can be structured. Copyright law, and the rest of the field that has come to be known as intellectual property, stands to gain from these insights. Some of the benefits and costs that characterize the in rem rights of tangible property also characterize rights that attach to works of authorship and invention; some of the techniques that property law has developed over centuries to balance those costs and benefits may usefully be tailored for use in the IP context. Too often, though, what are offered as property lessons are no more than crude caricatures of property law and theory. (19) The debate about copyright duration is a case in point. Although some types of tangible property rights can, in theory, last forever, they can also be subject to durational limits that operate to cut short property interests against the wishes of their owners. And some property rights that attach to tangible resources cannot last forever--even in theory--because they are subject to mandatory, ex ante durational limits just as copyrights are.

   This Article aims to document some of tangible property's durational limits, to explore the rationales for these limits, and to extract lessons to help us assess and improve copyright law on the important dimension of time.

3. COPYRIGHT DURATION AND ITS DISCONTENTS

   Before turning to tangible property, this Part will briefly review the history of copyright duration under U.S. law, emphasizing how proponents of expanding copyright duration have used comparisons with tangible property to press their case.

   Under England's 1710 Statute of Anne, (20) the first modern copyright statute, copyrights expired after fourteen years unless they were renewed by their authors for an additional fourteen-year term. (21) The U.S. Congress borrowed this (and much else) from the Statute of Anne in the Copyright Act of 1790, setting the initial term of copyright at fourteen years, with renewal possible if the author was still alive at the end of the initial term and complied with renewal formalities. (22) The 1831 revision of the Copyright Act extended the initial term from fourteen to twenty-eight years, following reform debates that enlisted analogies to tangible property. (23) The 1831 Act also eliminated the requirement that the author survive the initial term in order for a fourteen-year renewal term to be possible; under the 1831 Act, the author's surviving widow and children were eligible to renew if the author was no longer living. (24)

   Although the renewal provision was criticized starting in the 1890s (25) (and the dual-term system had already been abandoned in England and elsewhere in the 1800s (26)), Congress ultimately retained the dual-term structure in the 1909 Act, albeit with duration extended in several ways. The renewal term was lengthened from fourteen to twenty-eight years. (27) The Act also expanded the list of people who were eligible to renew if the author did not survive the initial term to include "the widow, widower, or children of the author, if the author be not living, or if such author, widow, widower, or children be not living, then the author's executors, or in the absence of a will, his next of kin." (28) This provision was adopted over objections by publishers, who argued that expanding the renewal beneficiaries beyond widows and children would make it too difficult for publishers to negotiate--potentially with numerous and indeterminate next of kin--over rights to the renewal term. (29) As the Copyright Office later explained in its analysis of this history, "[i]f the deceased author had no surviving widow and children, Congress wanted the renewal to go to close relations or others who might have been dependent on the author for support or assistance...." (30)

   In 1976, the critiques of the renewal system (and pressure to comply with international practice under the Berne Convention) finally came to a head, and the dual-term system of protection was replaced with a unitary term lasting from creation of the work to the life of the author plus fifty years. (31) Representatives of authors advocated for this change, which both eliminated the necessity of renewal registration and lengthened the total term of protection available in most cases. (32) In 1998, Congress again extended the duration of copyright to last for...