Deriving a Limit on Copyright Term from the Fixation Requirement in the U.S. Constitution

Abstract

This paper presents a new legal theory for an outer limit on the duration of a copyright term. A legal argument can be made that there is an inherent limit on copyright length based on interaction between the lifespan of physical media and the fixation requirement under the United States (U.S.) Constitution. A limit in duration based on the lifespan of the physical media in which a creative work is stored is desirable from a policy perspective. Such a limit harmonizes with moral rights rationale from French copyright law which has become accepted in the U.S. copyright landscape. An inherent limit to copyright term based on media preservation is also easier for politicians and courts to grasp than are arguments based on economics. Therefore avenues of argument based on media lifespan should be explored by the copyleft movement.