According to Mark Helprin's incendiary opinion in yesterday's Sunday Times, copyright shouldn't last until 70 years after the death of a work's creator — it should last forever. Forget the fact that the framers of the Constitution specifically required that Congress make copyright's term "limited" in order to encourage original innovation without stifling subsequent innovations. What's important is that no one can ever make a T-shirt with Mickey on it without paying Walt, no matter how long he's been dead (the Copyright Term Extension Act is also known as the "Mickey Mouse Protection Act," due to the tendency of Congress to extend copyright terms every time Mickey Mouse's likeness is supposed to fall into the public domain).
As Mike Masnick of Techdirt points out, Helprin's error here is to conflate intellectual and non-intellectual property. That he does so intentionally makes it no less of an mistake. The distinction is an old one, and it goes like this: if I steal your car, you are deprived of it; if I steal your idea, both of us have it. Or, to use a more apt analogy, if a thousand of us stand there holding candles, the flame of one candle can be used to light the rest without diminishing itself. Intellectual and real property also differ in that the creator continues to hold copyrights after a work is sold, but when you sell a car, you lose all claims to it.
The framers of our Constitution understood these differences, and saw the need to incentivize creators by offering them limited-time monopolies. But they also recognizing the eventual need to share the resulting ideas in order to foster further creation. Congress has repeatedly and consistently extended copyright law to subsidize corporations who understandably want to continue capitalizing on the work of the long-dead. Helprin's contrarian, anti-Constitutional proposal that copyright be extended in perpetuity fails due to a misunderstanding of the term "intellectual property." Ideas are not and cannot be the same as property.
