Fixing Copyright

I've posted several times about copyright law and other intellectual property issues, and I've discussed my concerns about the stagnating public domain here. Rather than just complain about things, I'd like to spend a bit more time on this blog posting some policy proposals to make things better. So here's my proposal for how to fix the copyright system.

The Copyright (and Patent and Trademark) system is intended "to promote the Progress of Science and useful Arts". It is intended to encourage new works by creating a property right (and hence scarcity and value) in those works "for limited Times". But it also is supposed to strike a balance. It must recognize that all works are built on works that came before, all authors modify the stories that they have read, all inventors stand on the shoulders of giants.

Arguably, the current copyright regime has tipped too far towards creating and extending valuable property rights and away from promoting the public good. The consistent lobbying of the primary beneficiaries (the movie and record studios) has managed to capture more and more of the long-term value of the works.... decimating the public domain in the process. (In this way, it is similar to many government programs where benefits are concentrated and costs diffuse.) In fact, while the rent-seekers consolidated their gains with the Digital Millenium Copyright Act (DMCA) and Sonny Bono Copyright Term Extension Act (CTEA), no copyrighted work has entered the public domain since 1963.

The following proposal would replace the current system of life of the author plus 70 years or 90 years for works for hire. The system would include:

1. Automatic copyright for 10 years from date of publication with no registration or fee required. The only requirement for a valid and enforceable copyright would be that the work be clearly marked with the date of publication (similar to the © Copyright 2006 we have today).
2. Registration and renewal would be required for terms of 10 years each with the following fee schedule:
   

          1st Renewal: $            1.00
          2nd Renewal: $           10.00
          3rd Renewal: $          100.00
          4th Renewal: $        1,000.00
          5th Renewal: $       10,000.00
          6th Renewal: $      100,000.00
          7th Renewal: $    1,000,000.00
          8th Renewal: $   10,000,000.00
          9th Renewal: $  100,000,000.00
         10th Renewal: $1,000,000,000.00
           ...
           etc.
   

   
   The renewal fee would go up by a factor of ten each term, indefinitely. Arguably, the fees should be indexed to inflation.
3. The copyright (and renewal right) would be transferrable by sale or bequest, so long as the registry was updated to reflect the new holder. In addition, creators could maintain the copyright and license specific rights (of distribution, publication, etc.) as they do today.
4. Companies and individuals (or their heirs) could renew indefinitely according to the increasing schedule, as long as it made economic sense.
5. Renewals would have a six month "grace period" to avoid filing snafus.
6. The copyright holder could pre-renew as many terms as they wanted in order to minimize the risk of unintentional expiration. (But with the increased risk that they would over-value the work.)
7. Registration requirements would include a legal contact which would be authorized to license copying of the work or the creation of derivative works. Written approval from the registered contact would limit liability for infringement.
8. Publicly accessible website would be set up to allow searches of the registrations and expiration dates.

What would we get from all of this:

• Revenue to run the registration database and enforcement activities, could even contribute to general revenue. Perhaps, rather than general revenue, any surplus should be used for grants for research and/or the arts.
• A clear mechanism to determine if a work is still covered by copyright. If the date of the notice is less than ten years ago, it is covered. Otherwise, it is only covered if it is registered and actively renewed.
• For covered works, a clear mechanism to help new artists figure out who they need to talk to in order to create derivative works or license material.
• Action required to keep works out of the public domain, which will help them default to being available.
• Fair system that allows individuals to afford reasonable copyright protection periods for little money while allowing companies (or successful individiduals able to commercialize their works) to extend copyright terms of valuable works as long as it makes economic sense.

Anyway, there's the proposal. Most likely, there is very little chance of anything like this happening, given the deep pockets and vested interests of the content owners. But, I tend to think it's still worthwhile to discuss ideal systems, even if they are (currently) politically impossible, because they help frame the issue and bring the true trade-offs to the fore.

Many thanks to Brad for talking it over with me before I posted it. I welcome any comments or suggestions.

Public Domain

Many of you know that copyright law and intellectual property rights are an interest of mine. I've got a few excellent books about it on my bookshelf, including Digital Copyright by Jessica Litman and Code and Other Laws of Cyberspace by Lawrence Lessig. I've also posted some of my concerns about the "property metaphor" on Larry Solum's Legal Theory Blog.

So by now, you should know what side of the debate I'm on. The ever-increasing length of copyright terms and the criminalization of "anti-circumvention" devices threaten to simultaneously keep works out of the public domain forever and seal them away where Fair Use can't reach. In fact, as I argued in this post, I'm more concerned with copyright extension (and hence content concentration) than I am about media consolidation — technology will always work to challenge conventional means of distribution, but state-mandated monopolies on content are hard to break.

The balance sought by the Framers has been lost. They were all too familiar with the rent-seeking and influence-peddling that accompanied the state-granted monopolies in England. The "limited times" that were originally 14 years have been turned into life of the author plus 70 years or 90 years for works-for-hire. The balance with the First Amendment is being eaten away by encryption technology (code in Lessig's words) and laws to criminalize tampering. The concept of copying and performing have been expanded far beyond their original meanings, such that in our digital age, use is copying. And the First Sale doctrine which was protected in physical media has been eroded by shrink-wrap licenses and universal commercial codes (like UCITA) being rammed through the states.

Eldred v. Ashcroft was a huge loss and makes another term extension likely when the next wave of Disney properties gets close to expiration. And in the mean time, nothing is entering the public domain — not a single work in the last 5 years. See this graph for some sobering numbers.

So what can be done? Well, everyone who reads this blog should donate to the EFF. It's quick and easy. Also, you should go to their action center and support a bill that's being circulated in Congress right now: the Public Domain Enhancement Act (PDEA). It's a small step, but given the string of losses that have occured when big steps are attempted, it's probably the right move.

The PDEA would require content owners to pay a small registration fee to keep their works protected after an initial 50 year period. The fee would be as small as $1 in order to make sure that small-time authors won't be adversely affected. The fee would have to be paid every ten years until the copyright expires (at today's current terms). While small, the registration fee will have two important effects:

1. The vast majority of works that are still protected are not commercially viable. Yet they still cannot be used for derivative works because the default is that they are protected. By forcing authors to pony up cash (even a small amount) a huge number of unsuccessful or short-lived titles will join the public domain.


2. The registration will help people creating derivative works find the copyright holder of works that are still protected. Many works cannot be used simply because it is unclear who currently holds the rights to the work and there currently is no place to go to be sure. The registry would act as a list of rights holders for the use of current artists.

The act currently has 8 sponsors, but needs more. Go to the site. Send an e-mail, a fax, or print out a letter to send to your congress(wo)man — they make it really easy. Do it.

This is why

I love the blogosphere. An impromptu debate by some really smart guys. You can learn something everyday.

Lawrence Solum has an amazing post on intellectual property (actually on property rights in general). This follows Eugene Volokh's sortie and follow up.

And to think, I played a small part in the first iteration of the debate. Nothing to add this time.... yet.