By Dixon Kinqade
"The monopoly granted to authors is for the benefit of the public, not for the benefit of the authors."
- Justice Stephen Breyer, dissenting in Eldred v. Ashcroft (2003)
The Founding Fathers had a simple and elegant vision when they penned Article I, Section 8, Clause 8 of the U.S. Constitution. Congress could grant authors and inventors exclusive rights to their work "for a limited Time" with one explicit purpose, "to promote the Progress of Science and useful Arts".
Not to enrich corporations in perpetuity. Not to lock away culture behind paywalls for a century. To promote progress.
They understood something we have forgotten. Intellectual property was meant to be a bargain, not a birthright.
Do you know that the original copyright term was fourteen years, with the option to renew for another fourteen if the author was still alive? After that, the work entered the public domain and became part of the cultural commons, where anyone could build upon it, remix it, and learn from it. Twenty-eight years maximum. Then your creation belonged to everyone.
Do you know that today copyright lasts for the life of the author plus seventy years? For corporate works, ninety-five years from publication. Mickey Mouse, created in 1928, should have entered the public domain in 1984. Instead, Disney lobbied successfully to extend copyright terms twice, in what critics sardonically call the "Mickey Mouse Protection Act".
This is not what the system was originally intended to do!
The Original Bargain
Copyright was never meant to establish absolute ownership over ideas. The Framers explicitly rejected perpetual intellectual property rights, recognizing that all creative work builds on what came before. You cannot write a novel without language, without narrative structures developed over millennia, without archetypes and tropes refined by countless storytellers whose names are lost to history.
As "A Question of Plagiarism" observes, every story draws from an ocean of prior art. The hero's journey. The love triangle. The murder mystery. These are not owned. They cannot be owned, because they are the vocabulary of storytelling itself.
Copyright was meant to protect specific expressions while keeping the building blocks of culture free for all to use.
The bargain was simple. We grant you a temporary monopoly to profit from your specific expression. In exchange, after a reasonable time, your work enriches the commons.
Everyone benefits. Progress happens.
How We Lost the Plot
Something went catastrophically wrong in the 20th century. Copyright transformed from a limited incentive into a perpetual stranglehold. The reasons are depressingly predictable. Corporate lobbying, the commodification of culture, and the rise of entertainment as a trillion-dollar industry have all played a part.
Here we must name the chief architects of this shift. They are the publishing houses. Copyright was championed by publishers, not out of altruism toward writers but out of a straightforward desire to protect their revenue and profit. They had the most to gain from longer terms, broader rights, and stricter enforcement. They controlled the distribution channels and the back catalogs.
Yet the same interests sold the regime to authors as if it were a gift. We're fighting for your rights, the message went. We're protecting your work. In reality, authors were enlisted as moral cover for a system that primarily protected publishers' balance sheets. The bargain was twisted. What was framed as doing authors a favor was, in large part, securing publisher control over content for as long as the law would allow.
Authors were the face of the campaign. Publishers were the principal beneficiaries.
That said, authors are not blameless victims. Many have been just as greedy and self-serving, eager for longer terms, tighter control, and a larger slice of the pie. That is the problem with business. The bottom line is always the bottom line.
It is the corrupting force of greed, a lust for money, that drives both sides. Publishers and authors alike have had a hand in building a regime that treats culture as private property in perpetuity.
When copyright terms were extended in 1976 and again in 1998, it was not to help struggling authors. The Copyright Term Extension Act was pushed by media conglomerates and publishing interests desperate to retain control over lucrative properties. Dead authors do not need incentives to create. They are dead. Yet their copyrights march on.
The abuse has reached a point where corporations, legal estates, and heirs who did nothing to contribute to the creative work feel entitled to reap the profits of someone else's labor indefinitely. The creator is gone. The rentiers remain.
Consider this. Virtually nothing published after 1928 has entered the U.S. public domain until very recently. We have had a century-long drought. Generations have grown up in a world where culture is something you license, not something you inherit.
This is not promoting progress. It is creating artificial scarcity of ideas.
The Fiction Writer's Dilemma
For authors of fiction, the situation borders on absurd. As that same piece notes, there are only so many plots, only so many character archetypes, only so many ways to structure conflict and resolution. We all draw from the same well. Mythology, folklore, classical literature, and yes, each other's work.
Yet modern copyright doctrine has expanded to dangerous territory. It is not enough that specific prose is protected. Now, "substantial similarity" in plot, character, or setting can trigger infringement claims. Writers are sued for using common tropes.
The idea/expression dichotomy (the legal principle that ideas cannot be copyrighted and only their specific expression can be protected) erodes in practice.
This creates a chilling effect. Authors must navigate a minefield of potential infringement, hiring lawyers to review work, and avoiding anything that might resemble existing properties held by litigious corporations. The irony is thick.
Copyright, sold to writers as protection and as a favor, now constrains the very creativity it was supposed to encourage, while the publishers who championed that narrative continue to hold the keys.
The Public Domain Famine
Perhaps the greatest tragedy is what we have lost. A vibrant public domain. When copyright terms were reasonable, culture recycled naturally. Shakespeare freely adapted existing plays and stories. The Brothers Grimm collected folk tales that had circulated for centuries.
Disney built an empire on public domain works (Cinderella, Snow White, Sleeping Beauty), then lobbied to ensure no one could do to them what they did to those stories.
The public domain should be a renewable resource, constantly replenished with new material for each generation to reimagine. Instead, it is a museum of antiquities, frozen in the early 20th century. Want to write a sequel to The Great Gatsby? That book, published in 1925, only entered the public domain in 2021.
F. Scott Fitzgerald died in 1940. His estate controlled the work for eighty-one years after his death.
This is not protecting authors. It is protecting inheritance and entitlement. Corporations, estates, and heirs who added nothing to the work now expect to collect from it in perpetuity. The law has been bent until it legitimizes that expectation.
That expectation is indefinite profit for those who did not create, at the expense of the public domain and the next generation of creators. Stories are treated like real estate to be passed down and monetized forever, rather than cultural artifacts meant to enrich society.
What Should Be Done
The solution is not to abolish copyright. Creators deserve compensation for their work. But we must return to the original bargain. Reasonable terms. Robust fair use protections.
Recognition that all creativity is derivative. That is not just acceptable. It is how culture progresses.
Imagine a world where copyright once again lasted twenty-eight years. Works from 1996 would now be free for anyone to adapt, build upon, and learn from. Young writers could legally write fan fiction set in those worlds without fear of cease-and-desist letters. Scholars could digitize and share. Remix culture could flourish without legal paranoia.
"A Question of Plagiarism" puts it plainly. We are all plagiarists in the sense that we all draw from the same cultural wellspring. That is not a bug. It is a feature.
The question is whether we will maintain a legal system that pretends otherwise, one that treats stories as private property rather than shared inheritance, that values publisher and corporate profit over cultural vitality, and that still asks authors to believe they were done a favor.
The Founders knew better. It's time we remembered why.
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