U. S. Copyright law: A modest proposal

America’s copyright law has been amended several times over the past few decades, each time increasing the effective term of copyright. As a result, the current “public domain horizon” is 1923 —only a small fraction of works published since then have ever left copyright, and no new items are scheduled to enter the public domain until 2019. This has been largely at the instigation of some large rights-holding companies, most notably the Disney Corporation, who have a very strong reason to want to keep some of their old copyrights active. But the cost to the rest of society has been high; more and more works are going out of print (especially as the publishing industry suffers and cuts down on its backlists), becoming permanently unavailable, or becoming “orphans,” with no clear copyright holder and so no possibility of ever making their contents available to anyone.

I have a modest proposal.

A simple reduction in the term of copyright is, quite simply, never going to pass Congress. The legislative history, and the amount of money being funneled in to lobbying this issue, has ensured that. But consider what the owners of these copyrights really want to protect. Disney wants to protect the copyrights on Mickey Mouse because, frankly, they’re worth a fortune to them — the heart of their corporate identity. But a publisher holding on to a mid-list book or film right from the 1950’s isn’t doing so because it’s worth a fortune; it’s because it’s better to hold on to it than not. The actual value to the publisher of these works is trivial, even negative if one considers the cost of bringing them back into print.

So: I propose that we amend the copyright code so that the duration of copyright is set to 56 years, twice the duration specified for the first copyright term under the old 1909 Copyright Act; and following that, the holder of copyright may extend the copyright annually and without limit on duration — but that each such extension incur a fee which is significant but not exorbitant; say, $500 (to be adjusted for inflation) per year, and that this be applied retroactively (if at all possible; this may be difficult to implement) to all works copyrighted in 1963 or later.

(Why 1963? Because then the first term expires in 2019, exactly like it does under current law)

Any work which is still in “active use” by its publisher is presumably worth far more than this; the cost is trivial and the rights-holder basically gets an indefinite copyright on it. But any work which isn’t – which includes the overwhelming majority of all works – would expire after the 56-year window. The registration fee requirement would eliminate the need to define “active use” by statute (a problem in orphan works law) by simply leaving it up to an individual rights-holder to determine whether they still consider this right to be of value. This is a fairly long window, and I would personally prefer if it were somewhat shorter, but it does achieve the principal purpose of copyrights – to ensure that the creators of works are compensated during their lifetimes – while allowing a steady flow of works to enter our common treasury.

Opinions?

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Published in: on October 11, 2010 at 22:38  Comments (16)  
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16 Comments

  1. I like the old law of copyright being for the lifetime of the creator plus a certain number of years. Although I suppose for corporate copyrights this wouldn’t work out so well.

    I also wonder what the annual fee “sweet spot” would be.

    • That’s a good point. The law actually does make this distinction now; under the current law, copyrights by individuals last for their life plus 70 years, whereas copyrights by corporations (works for hire) last for a fixed term. That would probably make sense under this revision, too, although with shorter numbers — perhaps life plus 20 years for individuals, and then subject to the same renewal policies?

      I’m not sure about the fee sweet spot, either. $500 was just a guess; my goal was really to pick a number so that something like 95-99% of all works don’t get renewed, but all the ones that the holders actually care about do. I suspect that if a publisher put out only 100 titles a year, they wouldn’t be very excited to pay $50k per year to renew all of the rights to 56-year old stuff; at that price, they’d pick and choose the few things which mattered.

  2. I’ve suggested a somewhat similar scheme many times – I like a large number of 14 year renewals. I think an annual renewal and a $500 fee is far too much. Not every copyright holder is Disney. If Robert Heinlein’s widow needed to live off of the proceeds from his books, then she should be able to do that without having to worry about tens of thousands of dollars of renewal costs every year.

    I’m not too worried about the possibility of copyright clearinghouses holding onto IP rights on the off chance that they will be worth something one day. The real problem with copyright is that ownership becomes murky after the original author dies. Then all of the copies of the work disappear after a few decades, and no one can do anything about it, so it is lost to history. If someone actually cares enough to renew the copyright on something, then they are the copyright holder, and the work is unlikely to be lost to future generations.

    • Yeah, the numbers will need a little tweaking; $500 is just a first guess. J. A. Konrath was citing some of his own and some friends’ numbers, that after about 10 years a midlist book is earning him about $750/mo in royalties; if that’s on a standard 10% royalty rate, the book would be grossing about $90k/yr, and the publisher’s net would be somewhere in the ballpark of $31k/yr. These numbers obviously decay over time; I’m not sure what the histogram of earning rates looks like for 50-year old works, but it’s probably considerably less than that. The real goal should be to pick a number so that, if people are still actually selling the book, it’s worth paying it, but if it’s just on the backlist, they should give it up. (And potentially, these rates should increase over time, so that all but the most critical IP’s all ultimately enter the public domain…)

      • I’m still not convinced that there is any reason to have a fee that is any greater than administrative processing costs. I don’t see a reason to discourage anyone from maintaining the copyright on a work, if they actually have a vested interest in it.

        In fact, there can actually be a number of benefits from having a copyright owner over the long haul. Disney movies get much better restoration, distribution and maintenance / storage because someone cares about them.

        In the small, I’m also not convinced that the rates should increase over time. I bet Harper Lee makes plenty of money off of her fifty year old book. I would hesitate to charge an 85 year old woman thousands of dollars a year to renew her one valuable copyright.

        If the goal of new rules is to guarantee preservation and availability of older works, then it may make more sense to make someone prove that they are actually doing something with the copyright in order to renew it. For example, you could say that if you don’t make the work available to the public for X years, then you are effectively abandoning it, and can’t renew.

        • I think it can be difficult to define “actually doing something” with a work; consider the analogous situation of “non-practicing operators” in patent law. A fee like this would simply transfer that decision to the copyright holder, with an incentive not to say they’re doing something if they aren’t.

          The case of Harper Lee should be a simple one, especially if we adopt Amy’s suggestion (above) and use life-plus-20 for individual copyright holders. That also would deal with the fact that standard book contracts leave the author as the copyright holder, and so this way they wouldn’t actually be liable for this extra cost during their lifetime.

  3. I like it – makes a great deal of sense! Like many things that make sense, however, there’s the next step of translating this into venue analysis, where you need to 1) figure out who the actual players are – who needs to act in what way to make this reality, and need to 2) identify what incentives can be constructed to get them to act in the desired way. Usually it’s a surprisingly small number of congress critters on the appropriate committee, and the incentives are things that can help them get re-elected: passage will mean more money for their district, less taxes, or give them election advantage on the “education” argument. At that point, you build an intervention strategy, and get to play in the vast scary (and sometimes fun) world of national politics. We’ve got some friends who do this – it’s crazy stuff!

  4. Absolutely!

    I would apply the same principles to trademark and patent law as well, but where patent law fees increase much more aggressively. Say, first ten years are a small filing fee, but starting with year 11 the fee goes up 150% over the previous year. The business could make the decision to keep paying for a few years, with lucrative patents lasting a few more years, but eventually it would become prohibitive and would expire.

    A lot of companies do work for hire and immediately buy copyright – “lifetime” is pretty arbitrary.

    I think this is pretty much the only solution for IP laws that would make more or less everyone happy. Disney keeps Mickey, the clutter is cleaned out.

    I think you should get your corporate folks to put together a coalition to make this happen… 😀

  5. Actually, the patent system has something like this. Maintenance fees are due on patents that have been issued, and these fees dramatically increase over the lifetime of the patent.

    http://www.uspto.gov/web/offices/ac/qs/ope/fee2009september15.htm

    Unfortunately, since the financial barrier to entry to getting a patent issued is very high (unlike copyright), even the ~$4000 maintenance fee due at the 11th year is unlikely to deter most patent holders from renewing their patent to full term.

    I mostly bring this up so that you can argue “hey, this proposal isn’t so crazy… we already do it in the patent system.”

  6. One interesting point: granularity of the work should be taken into account in some way. This is where you have to have some kind of free copyright taken into account – poems vs. long form books should be treated fairly.

    I think the point of “non-practicing operators” is huge, and really cuts to the heart of the matter. Part of the reason the patent system in particular has such a bad rap is the “blindsiding” factor – a patent shows up and whacks you in the side of the head, even though you had absolutely no way to know it exists. I think that is still a factor no matter what the model for IP, but it is VERY important that these dead old patents are cleared out of the system regularly.

    I think the point about “Heinlein’s widow” is an excellent starting point for firing up a spreadsheet to understand the financial impacts. At some point you move from talking about the widow and into the fourth generation shareholders…

  7. Thing is, the copyrights nobody is willing to pay to renew are overwhelmingly for the stuff that extremely few people want access to anyway. If it’s making any money at all, it’ll be renewed. In the future of electronic distribution, if it’s not making money even indirectly via ads it’s because very few people are accessing it.

    I think your proposal is a little too modest. You get a world where instead of ~100% of modern information access going to material that is copyrighted forever, you cut that down to 95% or some such number. With the 5% not being the cream of the crop, even if the accesses are scattered across an enormous database of old stuff.

    Personally I think copyright is a lost battle (I’d prefer 20 years max), the huge problem is the sledgehammer being enthusiastically applied to the fair use of copyrighted material.

  8. Lawrence Lessig and crew already tried passing something similar several years back. It got some traction but failed to get through congress. His proposal was more modest than yours–it simply stated that after 50 years of copyrighted protected work, you are required to register your copyright (and pay some nominal administrative fee) if you wish to extend it. This would have made it very easy to find out if a 50+ year old work is covered by copyright or in the public domain, since any work of that age would either be in this registry or in the public domain.

    Details: http://www.lessig.org/blog/2007/02/copyright_policy_orphan_works.html

    Unfortunately copyright laws fall under a major failure area of today’s special-interest-dominated political landscape. Even a change as small as this one failed to get anywhere in Congress. Large scale benefits like the public domain can’t bribe politicians as effectively as special interest groups.

    If I ran things, I might do something crazy like this:
    – You own your copyright for free for 10 years.
    – After that, you need to register it for another 10 year term and assign a value to the copyright.
    – You pay a fee to register it of 1% of the value assigned.
    – Anyone can purchase your copyright by paying you the value you assigned to it; they become the sole owner of the copyright on the work.

    • What purpose does the registration fee serve to the public, though? Simply as a revenue source? From the POV of the public interest, allowing someone to buy out a copyright when a low renewal fee is paid still results in it being copyrighted.

      • What purpose do income taxes serve to the public? They are a source of revenue to fund the various government activities.

        The fee is to assure that those who desire extended copyright protection, preventing work from entering the public domain, instead compensate the public through the fee.

        Anyone could buy out a copyright, including people and organizations who want to bring things into the public domain. The real purpose of the price is to assure that you properly value your copyright and pay a fee that is similar to the amount that you are depriving the public of by maintaining a monopoly over the work.

        A fee on copyright would be a “less bad” tax vs income tax. With income tax you disincentivize people from earning money. With my copyright proposal you disincentivize people from asserting copyright unnecessarily.

        I’ll admit that i made up those numbers without much thought, and they could certainly be optimized, but i think the principle is sound.

      • Yes, I think I see where Andrew’s going with this… the purpose of the fee is to create an incentive not to hold copyrights unnecessarily; the purpose of the valuation is so that you can effectively have a sliding scale, with short works being cheaper than long works; the purpose of the open purchase is to force people to give an honest valuation.

        It’s definitely theoretically cleaner than my original proposal, although I worry that the administrative overhead would become prohibitive; someone who holds a lot of rights (and that can be the “Heinlein’s Widow” case as much as a major publisher) would have to do a lot of calculation of value, and because of things like sentimental value, advertising plans, etc., it’s quite likely that some stranger will always value an individual work highly enough that it’s impractical to outprice them. (e.g., if someone wants to use your creative work for a political ad directly contrary to your interests? Or even as an attack against you?)

        • This is one of those things where the idea sounds good but the side effects are pretty wacky.

          Yony pointed out one, which is especially bad for people producing stuff that is not intended to make money but could be gold to a political enemy (blogs, for example). It’s worse than using your stuff in a political attack ad – public domain is enough for that. They could actually buy your blog, post a hostile edit, and prevent you from putting the original up for comparison.

          Letting someone else take over copyright is evil, but there’s a bigger economic issue.

          Basically, you’re forcing people to bet money on something that is difficult to quantify and whose prospects are highly uncertain. In year 10 of a copyright, what will its value be in years 11-20? Both financially and personally?

          People are generally going to get that bet wrong even if they try hard. Many will massively overpay, many will get a nearly free copyright renewal. Uncertainty is a nasty enough factor in business that the government probably shouldn’t introduce more of it. You can look at one of the major functions of government as reducing uncertainty, I think.


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