R. Anthony Reese, What Copyright Owes the Future, 50 Hous. L. Rev. 287 (2012).
Copyright law makes a promise to future generations. The law says that if an author today creates a work — a book, a song, a film, a play, a photograph, a painting — then sometime, a long way down the road, that work will pass out of copyright protection. And at that point in time, the inhabitants of the future will be able to copy the work freely, or adapt it, or sell it, or use it in any other way that copyright had restricted until then.
But that promise is at best illusory, and at worst fraudulent, if, by the time a work’s copyright expires, the work itself no longer exists. Copyright’s restraints on what can legally be done with a work may come to an end, but the copyright expiration will have no practical effect. On the day after the copyright expires, no citizen of the future will in fact be able to use the now-public-domain work in any of the ways that the law would then allow.So at a minimum, copyright law and the copyright system owe the future an obligation to do whatever they can to help ensure that many works of authorship survive for future audiences to read, to listen to, to watch.
This Lecture explores the subject of preserving copyrighted works for the future in four steps. First, I look at why preserving creative works is important and valuable. Next, I examine the ways in which copyright law has traditionally encouraged — or not encouraged — the preservation of copyrighted works. Third, I explore how digital technology and computer networks, such as the Internet, pose new challenges for preserving creative works. And finally, I consider briefly how we might rethink and revise copyright law to respond to the challenges of preserving works of authorship for future audiences.