My strawman proposal (was Re: The Eric Eldred Act)

Eric Eldred wrote:

>In response to the stunning decision in Eldred v. Ashcroft, we have come up
>with an idea that we would like discussed here.
>
>It is for a tiny tax on works in the 50th year of copyright. If the tax is
>not paid, the work would enter the public domain. Thus works with no
>commercial value would enter the public domain much as they would earlier when
>the term expired. Works with commercial value would be paid for and would
>enjoy the current copyright term. The tax could go to support the
>registration process.

Well, I've mentioned this idea several times the last few years, both on this mailing list and elsewhere, such as on "The eBook Community". Do a GoogleGroups search and you'll find my proposals, which are little different from the strawman example I propose below. <smile/>

>Maybe 50 years of copyright is too long. The Economist has spoken out for a
>14 year renewable term. But we recognize we have to make significant
>compromises with the strong copyright interests in Hollywood in order to
>persuade Congress about the benefits of this proposed act.

First, I would never compromise on Hollywood's "woody" for mandated hardware requirements or for strengthening the DMCA. That is a very slippery slope leading to profound problems for everyone. I'd rather see perpetual copyrights (without DMCA or hardware controls) than that.

However, if you give Hollywood (and the recording studios and the publishers and the authors) the capability to have very long copyright terms on works which generate significant revenue for them (and they derive this revenue by providing the works to the Public for a fair market price which is an important distinction), then that will make them happy.

I see the issue as follows: Copyright is a government-mandated monopoly (I reject the "natural right" argument.) Since enforcing copyright is paid for by the taxpayers, the cost of this should be born by the copyright holders after a certain free term is granted. The funds would be used not only for registration, but *more importantly* to keep track of copyright ownership (not currently being done, at least in an effective sense) as well as the preservation/archiving of all the works submitted during registration.

One example for the U.S. (a strawman example only!):

The "free" copyright period lasts for, say, 14 years. All works of course will be "born copyrighted" as currently exists today. Registration will be encouraged, but not required. However, in order to be able to get an extension of copyright past the 14 years, as well as full court standing for suing for copyright infringement, will require registration of the work within 90 days of publication, the payment of a $25 fee, and the submission of the original work in an acceptable form (e.g., for movies the whole *digital* source in accessible form must be submitted.) A copyright holder can get two year extensions past the 14 year free period for as long as Congress allows (I'd start off by a total of 200 years and of course Congress will likely get greedy and extend this someday, but that's fine, actually) by paying a fixed amount ($250 or 0.2% of the gross proceeds from sales/rental of the work in the prior two years to the *public*, whichever is greater -- a lower minimum fee can be granted under certain situations.) When the copyright holder fails to pay the renewal fee at the end of any two year extension, the work will automatically revert to the Public Domain. The Library of Congress will make available the originals of these Public Domain works (as submitted for registration) to the Public on demand for the cost to solely cover the expenses of filling the requests. Of course, I would enact in the legislation a COLA increase in the fees due to inflation so those who now register works will understand that the fees in 14 years will likely be higher, and increase thereafter, than at present.

(What to do with existing works when the new system is started is certainly open to a lot of discussion. I'd give current copyright owners the choice of either following the old system, or register their works with the new system, with the new "registration" essentially being like a new copyright and resetting the clock, thus giving them 14 years for free with the possibility for many two-year extensions. Btw, I'd also allow granting much longer renewal terms for convenience sake, but then the fees would be much higher on a "per-year" basis. E.g., the minimum would be $2500 for a ten-year extension, $10000 for a twenty-year extension, $2,000,000 for the full extension to the maximum 200 years, etc.)

It will be argued that such a change in copyright law has to be done internationally, and that it conflicts with current agreements. Of course it does. However, I would argue that the *allure* of all that registration and renewal money will be too much for governments to pass up (especially European governments which have expensive social welfare programs.) And once enacted, this system will have a built-in resistance to increasing the free copyright term since that means less money for government coffers! There'd also be much less need for lobbying by the big media producers since they have gotten what they really want (and thus the big media producers save lobbying expenses, which are probably more than what they would pay into the system to renew copyrights on the works they wish to retain copyright on.)

This system also provides funding for the preservation of works, especially digital works, and the value of this to the Public Domain is critical. No good is served when certain ephemeral digital works (such as television programming) are lost and no one copied them when they were presented to the Public. We can't rely on the producers of such ephemeral works to preserve them for the Public (look at the example of the recording companies and the state of their early 20th century masters), especially since they are likely not to renew copyrights for a whole lot of them -- it's just not worth it to them when the minimum 2-year renewal fee is set at $250.

Just my $0.02 worth.

Jon Noring Received on Mon Jan 27 2003 - 18:18:47 GMT