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.