Deven R. Desai of the Thomas Jefferson School of Law has made "Copyright's Hidden Assumption: A Critical Analysis of the Foundations of Descendible Copyright" available on SSRN.
Here's an excerpt:
Copyright operates under a hidden, erroneous assumption: heirs matter in copyright. This Article examines the possible historical and theoretical bases for the heirs assumption and finds that neither supports it. In short, the assumption is a myth that harms copyright policy and ignores a less obvious, but quite important, heir: society in general. An examination of the historical debates shows that the idea of providing for heirs through copyright has played a minor role in U.S. copyright history. Instead, heirs have been props to advance an agenda of furthering term extensions, advancing rent-seeking opportunities, and allowing authors to exert power against publishers. In addition, although copyright policy makers point to Europe and the Berne Convention as a key source for the heirs assumption, European debates that serve as the basis for the Berne Convention offer surprising and almost prescient sensitivity to ideas that are found today in the access to knowledge movement. One figure in particular, Victor Hugo, made an impassioned speech arguing that literary property protection must be operate as a way to found the public domain and asserting that when choosing between authors' rights and the public domain, the public domain must win.
