February 04, 2004

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.

Posted by richard at February 4, 2004 04:45 AM