Into the fray jumps this collection of essays, arguing that copyright is hopelessly broken. The libertarian right has grown increasingly skeptical of the institution, arguing that media corporations have perverted the Constitution’s Copyright Clause into a tool used not to “promote the Progress of Science and useful Arts” but to swell their coffers. Many libertarians see the endless extension of copyright terms, the retroactive granting of such extensions, and the increasing number of instruments that can be copyrighted as crony capitalism.
There is certainly a case to be made for copyright reform. Whereas the Copyright Act originally provided that copyrightable items—limited to books, maps, and charts—could be protected for one 14-year term, and extended for another 14-year term (if the author wished), we now have, in essence, unending, unlimited copyright: the life of the author, plus 70 years. Gone is the requirement that copyright holders actively pursue their copyright or its extensions. The effect is rather to grant copyright protection to everything created, in perpetuity. The public domain is no more.
Bunch does have one critique, however:
Were copyright protections simply a question of economic utility—a quest to discover which economic regime inspires content creators to make the most stuff—Copyright Unbalanced would be on more solid footing. But there is a moral dimension that must be accounted for. Libertarian opponents of copyright are not necessarily wrong to dodge the question; it has been a tricky one in American legal discourse. But the moral dimension of copyright has been a part of the general conversation since the days of the Founders—and before.
Guilty as charged. We did indeed dodge the moral question in the book, but that’s because we felt that there is so much patently bad policy in the current system—before even getting to the moral questions—that conservatives and libertarians should be able to agree needs reform. I believe one can take a pretty strict Randian or Lockean approach to copyright and still find lots of cronyist malfeasance in copyright.
That said, we won’t be dodging the moral question for long. Mercatus will later this year publish another book, Intellectual Privilege by Tom W. Bell, which in part refutes some of Adam Mossoff’s claims about the significance of Locke’s and Adam’s writings. While I don’t agree with everything Tom says in his forthcoming book, I think it will be an important contribution to conservative and libertarian thinking on what should be the proper bounds of a copyright system.