MTed, I too have used the mortgage analogy myself more than once, for example here and here; it is a way of expressing the how unfair I feel the extension was. The law currently doesn't allow the licensing syndicates to charge us for singing in the shower, but one sometimes suspects that if they could put such a provision into the law, they would. The Clinton Administrations "White Paper", for example, tended in the direction of transforming the World Wide Web into a chiefly pay-per-view environment.

I don't object to the mere existence of a public performance right in music. I do think that some of the exemptions of 17 U.S.C. 110 may need to be broadened, and that the music licensing system needs to be modified in some ways. The irony of the Bono Act is that it actually reduced the amount of performance royalties that will be collected by the licensing syndicates from some smaller bars and taverns: living songwriters were theoretically (I say theoretically because an individual ASCAP member may in practice have been paid very little, even under the old rules) sacrificed to the heirs of dead songwriters. This was the legislative quid pro quo for the extension. The movie studios and estates were getting a windfall, and the tavernkeepers wanted their cut. I sympathize with the small tavernkeepers wanting to get out of the flawed licensing system altogether, but for those that don't qualify for the new exemption, some of the old problems remain.

Whether copyrights should be inheritable is a question purely of policy, subject to constitutional limits. The Constitution says that copyrights may be granted only to "authors". It doesn't say "authors and their heirs". It doesn't say that they must be classified legally as a form of property (Adam Smith classified them as exclusive privileges, not as property rights). It may seem harsh not to allow copyrights to serve as a legacy a widowed spouse or surviving minor children, but to do so is already a stretch of the constitutional phrase "for authors". Then suddenly in 1993, the estates began saying, on the basis of no American tradition whatever, that copyrights were supposed to cover two full generations of heirs. I am willing to tolerate stretching the constitutional wording enough to make copyrights last until the author's children, born when the author is 20-40 years old, reach their majority. But if the legacy is to last longer than this, the author, or author's managers or executors, should be required to do as all the rest of us must do if we wish to build an endowment, and convert the copyright income into long-term investments such as stocks, bonds, and bank deposits.

T.