jon smith

Copyright was never supposed to give people permanent authority over culture. It was supposed to encourage creation by granting temporary exclusive rights, after which the public would receive the freedom to reproduce, preserve, reinterpret, and build upon the work.

That exchange is the foundation of the copyright bargain. The creator receives protection. The public eventually receives the work.

But the bargain has changed.

In the United States, copyrights can now remain enforceable for an author's entire lifetime plus seventy years. Works made for hire can receive ninety-five years of protection after publication, or 120 years after creation, whichever expires first.

A person can be born, grow old, and die while a work that shaped their childhood remains under the exclusive economic control of someone else.

The law calls these limited terms.

A century is a remarkably long time to wait for your side of a bargain.

I. THE ORIGINAL BARGAIN

There are compelling reasons to protect creative works. Writing a book, recording an album, developing a film, or producing original artwork requires labor, investment, and risk. Without some ability to control commercial reproduction, creators could find their work immediately duplicated and sold by competitors who contributed nothing to its production.

Copyright addresses that problem. It grants authors an enforceable period of exclusivity, allowing them to commercialize their work, negotiate licenses, and recover their investment.

That is a legitimate public purpose.

But exclusivity is not the public purpose itself. It is a mechanism intended to encourage the creation and circulation of works that eventually enrich the public domain.

The distinction becomes evident when we examine the history.

The United States' first federal copyright law, enacted in 1790, provided an initial term of fourteen years, renewable for another fourteen. In 1831, the initial term increased to twenty-eight years. The Copyright Act of 1909 permitted twenty-eight years followed by another twenty-eight-year renewal.

Those protections were substantial, but the eventual expiration of copyright remained an ordinary feature of the system.

The twentieth century brought a different arrangement.

The 1976 Copyright Act generally established protection for an author's lifetime plus fifty years. The Sonny Bono Copyright Term Extension Act of 1998 added another twenty years, producing the familiar life-plus-seventy standard.

For many older published works, successive extensions increased the total available term to ninety-five years.

What began as fourteen years, with an optional fourteen-year renewal, had become protection extending well beyond the lives of the people who first encountered the work.

And the public's opportunity to use that work without permission was repeatedly postponed.

In Eldred v. Ashcroft (2003), the Supreme Court upheld the constitutionality of the 1998 extension. The majority deferred to Congress's authority to determine the duration of copyright protection within constitutional limits.

But legality does not settle the underlying question of public benefit.

Extending protection for a work that already exists cannot encourage its original creation. The author cannot travel backward in time and become more motivated to produce something they have already finished.

The extension can preserve future revenue for rightsholders. That is an economic benefit to those rightsholders.

It is not evidence that the public receives a corresponding benefit from waiting another twenty years.

II. NINETY-FIVE YEARS IS NOT A CULTURAL LIFECYCLE

A longer copyright term can support works that continue to generate revenue decades after publication. Some books become classics slowly. Some films find their audiences years after release. Some artists enjoy renewed recognition late in life or after death.

Those realities deserve acknowledgment.

But they do not establish that a century of exclusive control is necessary to encourage artistic creation.

Consider what happened on January 1, 2026.

Thousands of works from 1930 entered the American public domain. They included William Faulkner's As I Lay Dying, Agatha Christie's The Murder at the Vicarage, the first four Nancy Drew novels, and films such as All Quiet on the Western Front.

These works were published before television had become a household fixture, before personal computers, before the internet, before contemporary video games, and before modern generative artificial intelligence.

They survived almost a century of cultural transformation before receiving the broad freedom of reuse that copyright law had promised the public.

A work published in 1930 did not remain culturally static until 2026. Its meaning changed as society changed. New technologies emerged. New artistic conventions developed. New generations brought different experiences and interpretations.

Yet the legal authority to reproduce and adapt much of that material remained concentrated.

This matters because culture is not merely a collection of finished objects.

Culture is an ongoing process in which people encounter existing works, reinterpret them, answer them, criticize them, parody them, and produce something new.

When copyright lasts longer than the ordinary period of generational cultural change, it can prevent people from freely participating in the transformation of works that helped define their own lives.

A person who encounters a film at ten years old might not be able to freely adapt it at sixty.

That is not simply protection for the original creator.

It is an allocation of authority over cultural participation.

III. THE ECONOMICS OF FIFTEEN YEARS

How long should exclusivity last?

A serious proposal must confront the economic problem rather than select an arbitrary number. Shorter protection could reduce expected earnings, especially for works whose commercial value develops slowly. Different creative industries also have different production costs and revenue patterns.

But longer protection also imposes costs.

It restricts reproduction, adaptation, preservation, competition, and access. Those costs continue accumulating after the period in which exclusivity meaningfully influences whether the original work gets created.

Economist Rufus Pollock investigated this balance in Forever Minus a Day? Calculating Optimal Copyright Term, published in 2009.

Using economic modeling and data concerning books and sound recordings, Pollock estimated an optimal copyright duration of approximately fifteen years. His model's 99 percent confidence interval extended as far as thirty-eight years.

The estimate is not a universal mathematical law. It depends on assumptions about economic behavior, production incentives, discount rates, and the value of access. It also does not establish that every form of creative production would respond identically to a fifteen-year term.

Nevertheless, the result is consequential.

A serious economic model estimated an optimum measured in years, while contemporary copyright law grants exclusivity measured in lifetimes and generations.

The difference is not marginal.

It is an entirely different conception of the relationship between creators and the public.

Fifteen years provides an opportunity to sell, license, distribute, and commercially exploit a new work while its original market is developing.

After fifteen years, the work becomes available for unrestricted copyright-based reuse.

Others can publish editions, create adaptations, translate books, preserve abandoned media, develop new interpretations, and incorporate elements of the original work into subsequent creations.

The original author can continue selling the original work, too.

Public-domain entry does not prohibit the original creator from participating in the market. It removes their exclusive authority to prevent others from participating.

That is how a temporary monopoly should end.

IV. THE PRICE OF LEARNING

The most consequential effects of copyright duration become apparent when access to culture also becomes access to knowledge.

In June 2025, a federal court considered Anthropic's use of copyrighted books to train artificial intelligence.

In Bartz v. Anthropic, Judge William Alsup found that the use of books for language-model training constituted transformative fair use. The court also accepted, on the facts before it, Anthropic's conversion of legitimately purchased print books into searchable digital copies.

But the court distinguished those activities from Anthropic's acquisition and indefinite retention of millions of books downloaded from unauthorized sources to build a permanent library.

The court rejected the argument that a transformative training purpose automatically justified acquiring and retaining pirated library copies.

The distinction rested on recognizable copyright principles. Training a model and assembling an unauthorized permanent collection were different uses of the works.

The dispute ultimately concluded through a $1.5 billion class-action settlement approved in July 2026.

But the ruling raises a question that remains unresolved by its legal reasoning.

What happens to someone who cannot afford the books?

Consider two researchers.

One has access to institutional funding, a substantial library, and the ability to purchase the materials required for computational research.

The other has comparable technical ability, but almost no money.

Both wish to investigate the same subject. Both intend to produce original results rather than distribute substitutes for the books they study.

The first researcher can assemble a lawfully acquired corpus.

The second may be unable to assemble an equivalent corpus at all.

Their intellectual capabilities need not differ. Their research goals need not differ. Their intended contributions need not differ.

Their access to capital differs.

This is not an argument that Anthropic's permanent unauthorized library was legally indistinguishable from borrowing a book. Nor does it require denying that unauthorized copying can damage legitimate markets.

It is an argument about the consequences of a system in which the practical capacity to conduct research increasingly depends on purchasing access to information accumulated over generations.

Copyright protects expression, not facts, ideas, or methods. In Feist Publications v. Rural Telephone Service (1991), the Supreme Court reaffirmed that principle.

Yet the distinction between protected expression and unprotected knowledge becomes less useful when the material needed to extract that knowledge remains inaccessible.

A researcher cannot analyze a book they cannot obtain.

A computational system cannot learn from a corpus it is forbidden or unable to access.

A legal system can recognize that learning is transformative while still establishing conditions that reserve the most comprehensive forms of learning for institutions with substantial financial resources.

That is an access problem.

It becomes more serious as copyright terms increase, because the accumulated quantity of material requiring permission continues to grow.

The immediate question in Bartz was whether particular acts of copying were lawful.

The larger question is whether the underlying system distributes access to knowledge fairly.

As the Director of Phi Labs Research put it:

“I'm not disagreeing with the ruling. I'm stating that the ruling is incorrect.”

A court can apply an existing statute accurately while exposing a structural defect in the system the statute creates.

Understanding the legal reasoning does not oblige the public to accept its consequences as desirable.

V. THE PUBLIC DOMAIN IS NOT A GRAVEYARD

One argument for extended copyright is that rightsholders are better positioned to preserve, distribute, and commercially develop their works. Exclusive ownership can support coordinated investment and prevent competitors from exploiting established material without compensating those responsible for its creation.

Sometimes that is true.

But continued ownership does not guarantee continued availability.

Works can become commercially unavailable while remaining protected. Publishers discontinue books. Distributors abandon recordings. Software becomes incompatible with contemporary systems. Films fall out of circulation. The rightsholder may no longer exist, may be difficult to identify, or may have little commercial incentive to make the work available.

In such circumstances, copyright can obstruct the people most willing to preserve and redistribute the work.

Legal scholar Paul J. Heald examined this problem in How Copyright Keeps Works Disappeared, published in the Journal of Empirical Legal Studies in 2014.

His analysis found that copyright status correlated strongly with the absence of books from commercial availability in the markets studied. The research challenged the assumption that extended protection necessarily promotes continued public access.

The implication is extraordinary.

A work can be too old to generate meaningful revenue for its owner, but still too new to be freely preserved or republished by anyone else.

It exists.

It is protected.

And it is effectively unavailable.

The public domain reverses that condition.

When exclusivity expires, libraries can make materials accessible. Independent publishers can produce new editions. Artists can reinterpret existing characters and stories. Researchers can preserve and analyze material without negotiating permission from every rightsholder.

Creators can compete through the quality of their new contributions rather than their exclusive control over old ones.

The public domain is not a storage facility for cultural remains.

It is an active production environment.

VI. ENFORCE COPYRIGHT. THEN LET IT EXPIRE.

The strongest objection to a fifteen-year term is that some creators and industries genuinely rely on revenue beyond that period. A novelist may earn modest royalties over decades. An independent filmmaker may take years to repay production costs. A musician may depend on a catalog that remains commercially meaningful well after its original release.

A shorter term would change those economics, and not every creator would benefit equally.

That is a legitimate reason to investigate financing models, compensation mechanisms, and the transition from the existing system. It is not sufficient justification for granting every rightsholder exclusive control for the better part of a century.

The reform proposed here is straightforward.

Fifteen years of copyright protection measured from first authorized publication. Strong, equal enforcement during that period. Automatic public-domain entry afterward.

No discretionary renewals. No repeated legislative extensions that move existing expiration dates into the future. No ability to restart protection over an original work merely by issuing a new edition containing minor additions.

New creative contributions would receive protection for their genuinely original expression. The underlying material would remain free once its term expired.

Unpublished manuscripts and confidential material would require appropriate protections against unauthorized disclosure and appropriation, but those protections should not become a mechanism for indefinitely postponing public-domain access to works that have already been made public.

Most importantly, the rules would apply equally.

A struggling independent author and a multinational entertainment corporation would receive the same term of protection.

The corporation would not receive a longer monopoly because its legal department is larger.

The independent author would not lose protection because their work was inexpensive to produce.

And when the term expired, the public would receive the same freedom regardless of the original rightsholder's wealth or influence.

Such a reform would require substantial legal change. The Berne Convention generally requires protection through an author's lifetime plus fifty years, and other international obligations reinforce long copyright terms. A fifteen-year model would therefore require international reform rather than a simple unilateral adjustment.

That is a political and institutional obstacle, not an answer to the underlying economic question.

We should evaluate copyright duration according to its public benefits and costs, not treat the age of an international agreement as proof that its requirements are optimal.

Protect the creator. Enforce the law. Set a reasonable expiration date. Honor it.

VII. PARTICIPATION OR EXTRACTION

The case for copyright begins with the creator.

The creator makes something worth experiencing, studying, sharing, or preserving. Society grants exclusive rights so that the creator can receive an economic benefit from that contribution.

But the value of a published work does not arise from the creator alone.

An audience receives it. Readers interpret it. Critics discuss it. Teachers introduce it to new generations. Other artists learn from it. Communities preserve its relevance long after the original marketing campaign ends.

Over time, a work becomes part of a larger cultural conversation.

Its author remains responsible for creating it. That contribution deserves recognition.

But ownership of the original expression should not become perpetual ownership of the conversation surrounding it.

This is where the structure of copyright begins to resemble other systems of institutional control.

A temporary right granted to encourage productive participation can become a mechanism for extracting value from continued public dependence.

A company that controls a cultural catalog for a century need not produce anything new to continue exercising authority over what other people are permitted to create from it.

It can collect licensing revenue, reject adaptations, restrict publication, and delay new uses.

Some of those decisions may be economically rational for the rightsholder.

That does not make them beneficial to the public.

Nor does it establish that those powers should remain enforceable for generations.

The question is not whether creators should be paid.

They should.

The question is whether payment requires society to surrender control over its own cultural development long after the original work has entered public consciousness.

Fifteen years is a defensible period of exclusive commercial opportunity. It provides protection while acknowledging that the public's right to participate must eventually become more than an indefinitely postponed promise.

The public domain should not be something our descendants inherit from people who died before we were born.

It should be something we experience, contribute to, and expand during our own lifetimes.

That is the bargain copyright should honor.

And the final argument requires very little legal terminology.

As the Director of Phi Labs Research put it:

“If you want exclusive control over something then don't make it public. Retaining exclusive access for a century makes you an extractor in society, not a participant in it. End of discussion.”

FIFTEEN YEARS TO EXERCISE EXCLUSIVE RIGHTS.

THE REST OF HISTORY TO BUILD UPON THE WORK.

THE PUBLIC DOMAIN IS NOT A GRAVEYARD.

IT IS WHERE CULTURE CONTINUES.

Sources

  1. Duke Law School — Public Domain Day 2026 — Contemporary examples of the ninety-five-year copyright term and the public-domain entry of works from 1930.
  2. Cornell Law School — 17 U.S.C. § 302 — Current copyright duration for individual authors and works made for hire.
  3. UC Berkeley Law — Eldred v. Ashcroft and the Copyright Term Extension Act — Constitutional challenge and arguments concerning retroactive extension.
  4. Rufus Pollock — Forever Minus a Day? Calculating Optimal Copyright Term (2009) — Economic model estimating an optimal term of approximately fifteen years.
  5. Bartz v. Anthropic — June 23, 2025 fair-use ruling — Primary judicial decision distinguishing training, purchased-book digitization, and unauthorized library acquisition.
  6. Bartz v. Anthropic — July 20, 2026 final settlement approval — Final court order approving the settlement.
  7. Cornell Law School — Feist Publications v. Rural Telephone Service (1991) — Copyright's protection of original expression rather than facts or ideas.
  8. Paul J. Heald — How Copyright Keeps Works Disappeared (2014) — Empirical investigation into copyright and the availability of books and recordings.
  9. Cornell Law School — Berne Convention, Article 7 — International minimum terms of copyright protection.