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The Legal Arbitrariness of Copyright

So much discussion of copyright in libertarian circles proceeds on pure abstractions such what can and cannot be property, can a market-based form of copyright exist within contract, what is and isn’t stealing, and so on. In reality, these discussions don’t really touch copyright as it really exists in the world. Once you look at the legal issues, you realize that what is and isn’t declared to be intellectual property is completely arbitrary and based entirely on political contingency. In a true market, this nonsense wouldn’t exist at all.

As an example, consider the retroactive copyright law that came into effect in 1978, one that wiped out accessibility to a vast range of music, literature, and film. For more this great post on the Center for the Study of the Public Domain.

Current US law extends copyright protection for 70 years after the date of the author’s death. (Corporate “works-for-hire” are copyrighted for 95 years after publication.) But prior to the 1976 Copyright Act (which became effective in 1978), the maximum copyright term was 56 years (an initial term of 28 years, renewable for another 28 years). Under those laws, works published in 1955 would be passing into the public domain on January 1, 2012.

What might you be able to read or print online, quote as much as you want, or translate, republish or make a play or a movie from? In this centennial year of the sinking of R.M.S. Titanic (April 15, 1912), how about Walter Lord’s A Night to Remember? Lord first published A Night to Remember in 1955. If we were still under the copyright laws that were in effect until 1978, A Night to Remember would be entering the public domain on January 1, 2012 (even assuming that Lord or his publisher had renewed the copyright). Under current copyright law, we’ll have to wait until 2051. This is because the copyright term for works published between 1950 and 1963 was extended to 95 years from the date of publication, so long as the works were published with a copyright notice and the term renewed (which is generally the case with famous works such as this). All of these works from 1955 won’t enter the public domain until 2051.

There’s much more at the site.

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To the extent possible under law, Stephan Kinsella has waived all copyright and related or neighboring rights to C4SIF. This work is published from: United States. In the event the CC0 license is unenforceable a  Creative Commons License Creative Commons Attribution 3.0 License is hereby granted.