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.