Re: The Eric Eldred Act

Concerning the possibility of new copyright legislation Eric Eldred wrote (Sun, 26 Jan 2003) about an idea for discussion:

>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.
>[...]
>What do you think?

I like this idea a lot. I think folks on both sides of the issue could actually (with some probability) arrive at compromises both in terms of the size of the tax and the duration.

It is not really that public domain advocates want seek to grab Mickey Mouse -- there is far more interesting stuff that was done in the 1920's. Most would be happy if they could restore old films, scan old pictures, and subject old texts to lexicographic analysis: doing art, science, history, .... that sort of stuff. So the public domain and private domain folks probably could sit at the same table without flinging soup.

The film, music and print industries might actually benefit from scholarly access to some of the old stuff -- good solid free labor, busy resurrecting, cleansing, and upwebbing quirky old forgotten stuff which might actually make for nice inclusions in new film, music or print projects. "Can't hurt, long as you don't mess with my toot-toot."

What bothers me in the equation is Congress.

The 50 year tax should be small enough that some poor coal mining family can preserve granddad's little limited circulation book about the early days of mining long enough to see if those Hollywood fellows really are interested in using it as the basis of a screenplay. Maybe $10 in 1923 dollars?

It should be big enough to pay for most of the bureaucracy it would create. Congress doesn't seem to like to put out money to help folks unless they are the sort of folks who contribute megadollars to reelections. The bureacracy ought to provide a mechanism so that people could find out quickly whether or not a copyright has been renewed: "If it's not on the list and it's more than x years old then it's public domain." Maintaining that list costs about $10K/year (1/10 of a salaried full time employee with benefits). Collecting the money costs about $10M/year (the minimum cost of anything Congress can do).

  It should not be based on the appraised value of the work, nor on the revenues it generates, since either would require a larger bureaucracy to actually assess those numbers.

So if we assume (as I think it was argued in one of the amicus briefs in the Eldred case -- at any rate it was discussed on this list) that y is the proportion of the z literary (and other) works dating from the period 1920-1950 that are still earning money for the copyright holders, then $10M/z*y would be the annual cost to be borne by the registrants. I don't remember the numbers, but let's assume y=0.1 and z=100K. Then we have 10,000 stakeholders who have to bear the cost of $10M/year. That works out to around $1000 per year per copyright.

That's a bit pricey, it seems -- at least for the coal mining family -- unless Congress would like to help out with some subsidies to the program. Why would they want to? Well maybe the public domain folks can convince the IP industry (to whom Congress listens) that the public is a lot less likely to ignore copyright law if the Congress begins to act sensibly about the topic. For example, perhaps civil disobedience (vis a vis illegal copying) is less likely to happen in those worlds in which lawmaking is enlightened. This seems a bit farfetched though. The people who are driving RIAA nuts by using Kazaa and similar P2P are probably not the ones who care about dusty old stuff from the 1920's and they probably don't care if the laws they break are good ones or not. I suspect illegality is currently viewed by many as a minor inconvenience to one's listening and viewing pleasure when it comes to MPEG's for music and film.

Having fewer professors of IP law aggravated with Congress might have a small ancillary effect on some of their reelection campaigns, but that's a very small constituency and it is not clear to me that their collective clout extends far into the congressional psyche, despite the recent mobilization of sentiment that some bad IP lawmaking has spawned.

So I guess my question would be: why would Congress care enough to think about it? Though there is that one guy down in Carolina who seems to think ahead.

David Dailey Received on Mon Jan 27 2003 - 19:38:49 GMT