Incentives to Create Under a 'Lifetime-Plus-Years' Copyright Duration : Lessons from a Behavioral Economic Analysis for Eldred V. Ashcroft

In this Article, we highlight for the first time some of the significant but hitherto unrecognized behavioral effects of copyright law on individuals' incentives to create and then examine the implications of our findings for the constitutional analysis of Eldred v. Ashcroft. We show that behavioral biases - namely, individuals' optimistic bias regarding their future longevity and their subadditive judgments in circumstances resembling the extant rule of copyright duration - explain the otherwise puzzling lifetime-plus-years basis for copyright protection given to individual authors, and reveal how this regime provides superior incentives to create. Thus, insofar as the provision of increased incentives to individual authors is socially desirable, a lifetime-plus-years rule is a more effective legal means of accomplishing this goal than a rule based on a fixed term of years of a comparable expected duration. We also find, however, that the behavioral efficacy of a lifetime-plus-years regime does not apply to the Copyright Term Extension Act (CTEA), which merely extends the "years" component of an already existing lifetime-plus-years rule. Drawing on empirical findings on intertemporal choice, as well as our preceding analysis of the lifetime-plus-years regime and our own experimental tests, we determine that the CTEA's prospective extension provides negligible additional incentives to individual authors. We conclude the extension is unjustified on incentive-provision grounds, a finding of relevance to the Court's determination in Eldred v. Ashcroft of the constitutionality of the CTEA under the Copyright Clause