For some time now, former congressional staffer Derek Khanna has purported to speak for “the conservative movement” on its views about copyright. His latest offering is a piece published by the R Street Institute and titled “Guarding Against Abuse: Restoring Constitutional Copyright,” which sets out his views about copyright, the creators who earn it, and his version of copyright utopia.
It’s hard to see how his vision is “conservative” at all: It’s one of dramatic tax increases, invasive government, and hostility to private rights in favor of communal property.
From Khanna’s very first paragraph, copyright, a recognized property right
, is described pejoratively as a “monopoly,” which he argues should exist only “to solve potential market failures.” Indeed, this is one of the piece’s primary arguments as to why copyright should be disfavored.
In the narrowest, most formalistic sense, all property rights are monopolies, as they are a legal authority to exclude others from certain acts. In this way, one could equally argue that people have a monopoly over the use of a shirt in their closet and the car in their driveway.
The more important understanding of monopolies is based on market power, not merely legal formalisms. An author has a certain scope of legal exclusivity with regard to his or her particular book, but that does not necessarily equate to market power. Readers may choose other books in that genre, or may choose a movie, television show, or live theater — it is well established that the existence of copyright does not equate to market power.
Khanna’s assault on private property also plays out in the piece’s other main theme, contrasting the duration of copyright to the benefits of the absence of copyright, known as the “public domain,” and advocating for shortening that duration so that creative works can become “public property.”
In the 1970s, Congress overhauled the entire Copyright Act, including changing the method of calculating the duration of copyright. This would set the stage for the United States during the Reagan administration to join the dominant global copyright agreement, the Berne Convention. This, in turn, created reciprocal protections abroad, and thus increased dramatically the protections allotted to American creators in foreign countries.
Later, in the 1990s, the European Union provided its authors with 20 years more copyright than what that U.S. provided, but denied this additional 20 years to American authors. Congress responded by extending the U.S. term so that U.S. creators and creative industries wouldn’t be at a competitive disadvantage.
The R Street piece describes this history as a theft from the proletariat (emphasis added):
The recapture of works that otherwise would be in the public domain represents one of the biggest thefts of public property in history.
Conservatives have a different view. Twice in recent years, the Supreme Court has addressed the issue of copyright term and the public domain. In both cases, the conservative justices on the Court overwhelmingly sided with private property.