Thursday, February 20, 2020
Paul R. Gugliuzza, Boston University School of Law, has published Death of a Copyright at 99 Boston University Law Review 2581 (2019). Here is the abstract.
A well-established feature of modern copyright law is that the term of a copyright extends beyond—far beyond—the author’s death. In his article, Death in Copyright: Remarks on Duration, Abraham Drassinower boldly challenges that settled rule, arguing that, because of the deeply personal link between an author’s creativity and the grant of a copyright, the term of that right should end when the author dies. Extending the argument of his recent book, What’s Wrong with Copying?, Drassinower draws on the thinking of Immanuel Kant to conceive of authorship not as a “thing” but as a “communicative act” connecting the author and the audience. This essay, prepared for a symposium celebrating the work of Wendy Gordon, responds to Drassinower’s engaging article by making two main points. First, it goes beyond Kantian theory and sketches how other justifications for copyright, including personhood theory and economic utilitarianism, could be used to critique (or to justify) the long, post-death duration of modern copyright. Second, it explores the implications of Drassinower’s theory of authorship for works-made-for-hire, where the personal link between author and copyright is more tenuous, and for works published only posthumously, which would not receive any copyright protection at all under Drassinower’s model.
Download the article from SSRN at the link.