Professor Eva Subotnik’s article, Copyright and the Living Dead?: An Estates Law View
Eva Subotnik
of the Post-Mortem Term, will be published in the fall by the Harvard Journal of Law & Technology. Here is the abstract:
Is there any good reason why the term of copyright, which was once a scant fourteen years long, should now last decades beyond the death of the author? Proponents of copyright as a form of property have generally welcomed this expansion. By contrast, recent scholarship has cast doubt on the soundness of any post-mortem period of protection, citing anti-social behavior by well-known authors’ successors that threatens our cultural heritage. Absent from the literature thus far, however, has been a systematic study of how estates law principles, which govern the general succession of property, bear on the justifications for and scope of copyright’s post-mortem term. Undertaking that task, this article makes two principal points. First, estates law theories and doctrines provide discrete support—beyond what general property principles provide—for a post-mortem term that should be taken into account in any debate over copyright duration. Second, while there are costs associated with the post-mortem term, they should be viewed primarily through the prism not of dead-hand control but of suboptimal stewardship by the living. Together, these points begin to suggest changes that should be implemented, including the shortening of the post-mortem term and the instantiation of better stewardship practices among authors’ successors.
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