Julian Sanchez wonders why copyright terms are so long, and
offers a retromaniacal speculative theory: it's a form of "protectionism against the past":
"
Insanely long copyright terms
are how the culture industries avoid competing with their own back
catalogs. Imagine that we still had a copyright term that maxed out at
28 years, the regime the first Americans lived under. The shorter term
wouldn’t in itself have much effect on output or incentives to create.
But it would mean that, today, every book, song, image, and movie
produced before 1984 was freely available to anyone with an Internet
connection. Under those conditions, would we be anywhere near as willing
to pay a premium for the latest release? In some cases, no doubt. But
when the baseline is that we already have free, completely legal access
to every great album, film, or novel produced before the mid-80s—more
than any human being could realistically watch, read, or listen to in a
lifetime—I wouldn’t be surprised if our consumption patterns became a
good deal less neophilic, or at the very least, prices on new releases
had to drop substantially to remain competitive.
If that’s right, there’s a perverse sense in which retroactive
extensions for absurd lengths of time might actually, obliquely, serve
copyright’s constitutional imperative to “promote the progress of
science and useful arts”: Not by directly increasing the
present value of newly produced works, but by shrinking the pool of free
alternatives to the newest works... If that’s true, though, it’s not enough in itself to
justify the longer terms: The question is whether the marginal new
content is actually worth losing universal free access to the older
material. For reasons unclear to me, there often seems to be an
undefended assumption that more newer stuff, whatever the quality,
outweighs wider access to existing content at any conceivable margin.
I’m not sure how you’d go about quantifying that, but it strikes me as
wildly implausible on face."
