February 20, 2006

Fixing Copyright

I've posted several times about copyright law and other intellectual property issues, and I've discussed my concerns about the stagnating public domain here. Rather than just complain about things, I'd like to spend a bit more time on this blog posting some policy proposals to make things better. So here's my proposal for how to fix the copyright system.

The Copyright (and Patent and Trademark) system is intended "to promote the Progress of Science and useful Arts". It is intended to encourage new works by creating a property right (and hence scarcity and value) in those works "for limited Times". But it also is supposed to strike a balance. It must recognize that all works are built on works that came before, all authors modify the stories that they have read, all inventors stand on the shoulders of giants.

Arguably, the current copyright regime has tipped too far towards creating and extending valuable property rights and away from promoting the public good. The consistent lobbying of the primary beneficiaries (the movie and record studios) has managed to capture more and more of the long-term value of the works.... decimating the public domain in the process. (In this way, it is similar to many government programs where benefits are concentrated and costs diffuse.) In fact, while the rent-seekers consolidated their gains with the Digital Millenium Copyright Act (DMCA) and Sonny Bono Copyright Term Extension Act (CTEA), no copyrighted work has entered the public domain since 1963.

The following proposal would replace the current system of life of the author plus 70 years or 90 years for works for hire. The system would include:

  1. Automatic copyright for 10 years from date of publication with no registration or fee required. The only requirement for a valid and enforceable copyright would be that the work be clearly marked with the date of publication (similar to the © Copyright 2006 we have today).
  2. Registration and renewal would be required for terms of 10 years each with the following fee schedule:
           1st Renewal: $            1.00
           2nd Renewal: $           10.00
           3rd Renewal: $          100.00
           4th Renewal: $        1,000.00
           5th Renewal: $       10,000.00
           6th Renewal: $      100,000.00
           7th Renewal: $    1,000,000.00
           8th Renewal: $   10,000,000.00
           9th Renewal: $  100,000,000.00
          10th Renewal: $1,000,000,000.00

    The renewal fee would go up by a factor of ten each term, indefinitely. Arguably, the fees should be indexed to inflation.
  3. The copyright (and renewal right) would be transferrable by sale or bequest, so long as the registry was updated to reflect the new holder. In addition, creators could maintain the copyright and license specific rights (of distribution, publication, etc.) as they do today.
  4. Companies and individuals (or their heirs) could renew indefinitely according to the increasing schedule, as long as it made economic sense.
  5. Renewals would have a six month "grace period" to avoid filing snafus.
  6. The copyright holder could pre-renew as many terms as they wanted in order to minimize the risk of unintentional expiration. (But with the increased risk that they would over-value the work.)
  7. Registration requirements would include a legal contact which would be authorized to license copying of the work or the creation of derivative works. Written approval from the registered contact would limit liability for infringement.
  8. Publicly accessible website would be set up to allow searches of the registrations and expiration dates.

What would we get from all of this:

  • Revenue to run the registration database and enforcement activities, could even contribute to general revenue. Perhaps, rather than general revenue, any surplus should be used for grants for research and/or the arts.
  • A clear mechanism to determine if a work is still covered by copyright. If the date of the notice is less than ten years ago, it is covered. Otherwise, it is only covered if it is registered and actively renewed.
  • For covered works, a clear mechanism to help new artists figure out who they need to talk to in order to create derivative works or license material.
  • Action required to keep works out of the public domain, which will help them default to being available.
  • Fair system that allows individuals to afford reasonable copyright protection periods for little money while allowing companies (or successful individiduals able to commercialize their works) to extend copyright terms of valuable works as long as it makes economic sense.
Anyway, there's the proposal. Most likely, there is very little chance of anything like this happening, given the deep pockets and vested interests of the content owners. But, I tend to think it's still worthwhile to discuss ideal systems, even if they are (currently) politically impossible, because they help frame the issue and bring the true trade-offs to the fore.

Many thanks to Brad for talking it over with me before I posted it. I welcome any comments or suggestions.

Posted by richard at 08:23 AM | Comments (2)