January 18, 2003  ·  Lessig

Among the hundreds who have written, Kevin Kelly writes “[y]our stand before the court will only be a failure if we fail to follow through with what is next.” Many more ask, “what can we do next.”

Here is something you can do right now. In this NYT op-ed, I describe a proposal that would move more work into the public domain than a total victory in the Supreme Court would have. The basic idea is this: 50 years after a work has been “published,” a copyright owner would be required to pay a copyright tax. That tax should be extremely low–this proposal says $50, but it could be $1. If the copyright holder does not pay the tax for 3 years, then the work is forfeit to the public domain. If the copyright holder does pay the tax, then its contacting agent would be made a matter of public record. Very quickly we would have a cheap, searchable record, of what work is controlled and what work is free.

If Justice Breyer is right that only 2% of the work from the initial period affected by the Sonny Bono Act continues to have any commercial value at all, then this proposal would mean that all but 2% will move into the public domain within three years. And as the proposal applies to all work that is more than 50 years old, it would apply to a much larger range of work than would have been affected had we prevailed in the Supreme Court. This could give us (almost) everything we wante–98% of the public domain that our framers intended. Not bad for government work.

Of course it would not give us everything. Mickey would not be free. Nor would any of the works that led Congress to pass the Sonny Bono Act in the first place be free.

But without an amendment to the Constitution, or a revolution in Congress, there is nothing we can do about that now. The key now, as Kelly wrote, is “to follow through with what is next.” This bridge–between those who want copyright to be forever, and those who want a public domain–should be next.

If enough join this next campaign, then unlike the last, our numbers will matter. Congress counts more votes than five. They race to the reasonable position. Where there is no continuing commercial use of a published copyrighted work at all, then what possible reason could there be for continuing to lock it up?

There is a FAQ about the proposal that will be updated to reflect great questions raised by many.

Read it, and think. And if you agree, then please, do something about it. Write your congressman or congresswoman. Donate via PayPal to free.mickey@foobox.com to help us spread the idea.

And most importantly, write about it in this space. My teacher Dave is right about many things. He is certainly right that the future of begins here.

  • Tim Hare

    I like your idea, but what is to prevent a corporation from budgeting for the copyright tax “just in case” they want to use the content at some future point? For most works that are owned by companies, it would be trivial to factor this into the annual budget and delegate it to be done by some low-level clerk – essentially letting the “subconcious” of the organization take care of it. They wouldn’t have to “think” of it any more than we have to think to breathe.

  • http://www.der.org Eric Rolph

    The copyright tax is an amazing idea.

  • Lessig

    Tim: Nothing. This is no doubt not as good in that respect as a real pubilc domain that gets supported automatically. But it is massively better than where we are now. Over 90% of all work between 1923 and 1952 would be in the public domain within 3 years.

  • http://www.ashleyit.com/blogs/brentashley brent ashley

    The forfeiture would have to be irreversible, and there would need to be a mechanism to follow the ancestry of derivative works to determine the completeness of their forfeiture to the public domain.

    Otherwise you’ll have situations like It’s A Wonderful Life, which became a hot commodity only from the exposure it got for 20 years when it was thought to be in the public domain (because the film company let their copyright lapse). The increased value woke up the owners of the rights to the story and music and they started controlling and restricting its use and distribution.

    If a work were to be forfeited but not the components from which it was derived, it seems from this example that any one of the component owners can claim control over the derivative work.

  • Jim Bauer

    I have an interesting twist to this idea, have the tax double each year. So $1 the first (50th) year, $2 the second, $4 the third, $8 the firth,… This should eliminate the risk of perpetual renewal.

  • http://www.archive.org Brewster Kahle

    A way to frame this argument is to
    Help the Orphaned Works

    The Internet Archive and others can help create a catalog of Orphaned Music and Orphaned Books, publicise the catalog (to help creators take works off if they like), then make them available under non-commercial CC for some years, then they are declared PD. This is analogous to reclaiming fallow land.

    We are up for building this kind of catalog.

    -brewster

  • http://www.soundcommons.org/blogs/development/ Cindy Bernard

    My immediate response was “great idea!” – but then I thought – wait…there needs to be an exemption for self published works otherwise it favors the aggregate published by a corporation over the self published individual work (on a blog for instance)…

    Here’s an extreme example:
    Say a poet publishes one poem a day on a blog and the work isn’t recognized otherwise for 50 years. Big publisher “Doe Inc.” comes along and wants to do a book…the poet doesn’t like the deal they’re offered – does the poet then have to pay $50 (or even $1) per poem to maintain their copyright and keep “Doe Inc.” from doing the book anyway?

    Which also points to another question – what constitutes the copyrighted work for the purposes of the tax? The blog or the individual poems?

    I think a tax exemption for self-publication would solve many potential issues….

  • http://mind-numbing.com/ Andrew

    The tax is a small step, but a fairly radical idea that will at least get the issues raised by Eldred on the legislative agenda. It doesn’t directly address the problems of perpetual copyrights, but it’s better than the current situation.

    I like the idea raised by Cindy Bernard of some kind of exemption, but anything too broad may defeat the purpose. I also worry about the tax being increased to the point of pushing out the independent content producer. After all, Congress has been known to raise taxes every once in a while.

    Has any consideration been given (or does their exist) some kind of tax incentive towards releasing works into the public domain? Hasn’t a reward in the form of tax breaks for certain kinds of behavior proven to be more successful (or at least popular) than taxing the undesired behavior. (I’m out of my element here, so I could be missing some obvious examples.)

  • http://www.ms.lt Andrius Kulikauskas

    Lawrence, the copyright tax is a very good idea. It strikes at the heart of the problem, which is the notion of “copyright by default”.

    It is not fair that the current law makes no provision for people who want to place their works in the public domain.

    I have therefore started http://www.PrimarilyPublicDomain.org to express that works are “public domain except as noted”. This recognizes (unlike the Creative Commons Licenses) that most creative works (such as websites) involve a complex set of authors (for example, excerpts and exceptions). The intended effect of Primarily Public Domain is to reverse the effect of “copyright by default” so that as much material as possible can enter the public domain. It is compatible with every license imaginable except “copyright by default”.

    Primarily Public Domain is also compatible (unlike the Some Rights Reserved licenses) with “requests” that are not meant to have legal implication. The Creative Commons Licenses currently don’t express non-legally binding concepts such as “I would prefer that you attribute, or compensate, etc.”

    It would be wonderful if the Creative Commons had a version of “public domain except as noted”, and also had non-legally binding counterparts “public domain, with some REQUESTS” to the legally binding ones.

    My interest is that as much fresh material as possible be generated into the public domain. I would like to jumpstart “idea feeds” http://www.ideafeeds.com that would encourage the circulation of ideas between different groups online.

    Such an infrastructure is necessary as part of our laboratory’s plan to organize business ecosystems, as in our paper, “An Economy for Giving Everything Away”, http://www.ms.lt/en/workingopenly/givingaway.html

    Our crucial problem is that we be able to copy information to help refer people to each other without having to paraphrase, and WITHOUT HAVING TO TRACK LICENSES. This is especially important for us because we are dealing with microcontent.

  • http://www.soundcommons.org/blogs/development/ Cindy Bernard

    Yes any exemptions would need to be very specific – another way to look at the same issue is not as an exemption but as a definition on the meaning of “published” for purposes of invoking the tax….

    1 – for commerical purposes by a party other than the author
    2 – self published works that are commerically distributed

    Also, following on Andrius – a quick comment on the Creative Commons license discussion…It would be great if the icon used for the licesnses emphsized the rights not reserved – the current “some rights reserved” isn’t explicit enough about the permitted uses and aren’t those really the point? Would be great to display the “share alike” icon for instance.

  • Anonymous

    Rather than a tax, how about free “renewal filing”, that’s to basically acknowledge that “hey, this work is being maintained by me”

  • humina

    I’m torn here. I hate everything about the Disney corporation (not least, Mickey Mouse). Doesn’t putting Mickey Mouse into the public domain (assuming we could get there) just encourage people to use the Mouse and therefore spread the evil which is the Mouse? Or would the (apparent) proper result here — a limitation on terms — allow us to have more subversive stuff like the Disney equivalent of the “Dysfunctional Family Circus”?

  • http://www.telepath.com/~hrothgar/telae_tabulae.html Timothy Phillips

    This is, as has been noted, a proposal to revive copyright renewal. For this reason, it should be part of the copyright code, not part of the internal revenue code.

    A registered copyright would be easy to renew; just send a check with the number of the copyright certificate in the “memo” line. Copyrights that were never registered would be tricky. If I write a hundred songs and never register their copyrights, then lump them all together at renewal time as a “song book”, then no one will be able to determine the copyright status of any individual song without a copy of my “song book” (which may not even exist in bound copies, unless the renewal process includes a deposit requirement).

  • http://epeus.blogspot.com Kevin Marks

    This is neat – less punitive than my original doubling idea, and thus more likely to pass.

    Howver, I still think the idea of making derivative works easier by a digital extension of the doctrine of first sale has potential.

    The idea is that you can make a derivative work of any existing work, provided that your customers have bought a copy of the source work. The legal precedents here are not completely clear, and the pending cases about bowdlerised movies on sale in Utah may help resolve it. It could certainly begin on a voluntary basis.

    My mediAgora proposal has more details on how this could be effected.

  • http://k.lenz.name/LB Karl-Friedrich Lenz

    As has been pointed out above, your proposal would be a “formality” under Art. 5 (2) of the Berne Convention, which reads:

    ” The enjoyment and the exercise of these rights shall not be subject to any formality; “

    Calling your formality a tax while it is in fact a registration is not enough to work around that Article. At the least, Number 7 in your FAQ would seem to need to address this issue in more detail.

    The other point is that you don’t need this law for works without commercial value. If the commercial value is zero anyway, anybody can just go ahead and use the work right now. There will be no one to sue. So if you get your law passed you get only what you already have.

    The easier and faster strategy would seem to be to set up servers in a free country (for example Japan) with a protection term of 50 years after death of author.

  • James Day

    The proposal should prohibit paying the fee except within a year or five of expiration of copyright. If it doesn’t, it is likely to become habitual to pay the fee at the time of original publication of the work and that would cause it to serve no useful purpose. It may even be necesary to prohibit contracts entered into prior to that time limit which require a third party to make the payment on time.

    May I and anyone else who chooses to do so reproduce your NY Times Op-Ed piece or the proposal it contains? While I can make the necessary fair use arguments to do so, not all parties are able to comprehend those arguments well enough to understand them and not all people are sufficiently familiar with copyright law to know that those arguments are valid. In at least one place I’m contractually required to enforce copyright law and made liable for all legal costs and decisions if I make a mistake and the NY Times sues. I can do without the risk. If the answer is no, please supply a version which can be feely distributed, preferably one placed in the public domain.

  • Alan-a-Dale

    (part eight of eight; the rest can be found elsewhere)

    The public good’s bad, our rights now all wrongs
    And Justice sings the big companies’ songs.
    But we don’t like the tune, want to do as we please
    As we write and we think and we make MP3s.
    The time has come to kill Justice’s vulture
    And finally to set free our own culture.
    Stand up and be counted, put our rights on the map
    And together we’ll build us a working mousetrap.

    (ends)

  • http://braxtonian.com ry rivard

    It’s a decent idea, but I don’t understand why you’ve done this?

    Professor Lessig, I have great respect for your work and as someone in the upcoming generation I understand how my creativity will be limited by the current system, but doesn’t the Eric Eldred Act just provided a conviniant way out for Congress to pretend solve the problem?

    For one thing this turns all of the momentum around and moves it in the wrong direction. Originally it was: get all these works in the public domain! Free Mickey!

    Now’s it the almost banal, “Get 98% of the works freed!”

    It seems to me that freedom of expression and freedom of choice are not only essential to the human endevor but are moral absolutes for mind of a species that craves creation.

    The Eric Eldred Act turns it back on that and lets Congress and corporate America get away from their responsibilities as creators to recontribute, and keeps the wool pulled down over the minds of the intrepid creators of mine and every generation.

  • http://www.beeth.com Carl Beeth

    Am I the only one that thinks this is a horrible idea! The initial problem is that copyright is being extended into perpetuity. Copyright law is there to encourage creativity in a way that benefits society.

    To take example on patent law imagine for a minute that it was also 90 years and growing don’t you think the IBMs and Bayers of the world would file blanket extensions for all the patents they hold. We the end user would have to pay enormous sums for our drugs and gadgets many would not be made because the it would almost be impossible to make things that did not infringe on some patent somewhere. The patent holders would have very little incentive to invest in new research as they could milk their old ideas into perpetuity. I think this has already started in the copyright space, Disney is a prime example of a company mainly recycling their old ideas (and ironically public domain works).

    The problem with current copyright law is that it no longer encourages creativity. In the patent space companies know full well that they need to reinvest their profits into new ideas because the old ones will expire. Where is the equivalent motivation in the copyright space. How does society benefit from perpetual copyright even under a renewal process?

  • doogieh

    Of course, a simple change of one word turns this from the Eric Eldred Act to the Jack Valenti Act.

    Instead of a fifty year renewal at the end of the fifty year term, just make it a fifty year renewal at the end of each fifty year term. That way, at no time is the copyright ever unlimited in time, but copyrights of corporations (the only ones finicky enough to comply after fifty years to keep their rights going) would never expire and they would no longer have to shovel millions of dollars to congress every generation or so!

  • Neil Sluman

    I think the basic principle is a good idea, but I really feel that a tax is the wrong way to go. It would not substantially increase availability of works, since – As Tim Hare mentioned – the big publishers would simply renew all copyrights in one go.

    Perhaps instead, the publisher should be obliged to publish. Simply by making copies available to the public, the author can extend the copyright by a number of years, up to a specified maximum. This would result in less popular works entering the public domain before they are forgotten completely, while those that were kept out, would at least be kept availble for those that wish to have access.

  • http://www.troutworks.com/Joycelog/ Troutgirl

    I admire your positive attitude, but as a Machiavellian matter wouldn’t it be better to let the people suffer as much as possible for some period of time? I was gobsmacked how little notice was given to the harm caused by copyright extension in the majority opinion; Breyer’s arguments about the harm to education and cultural preservation apparently hit no nerves in his colleagues. Justice Ginsburg’s blithe comment about the “traditional contours” of First Amendment protection in current copyright law also made me gasp at the apparent out-of-itness of the Court. I just wonder if 20 years with no additions to public domain, and the steady reduction of fair use — 20 more years of having your CDs not play in your computer, having Ebay cancel your auctions, having your child receive a cease and desist for using someone’s photo in an award-winning science-fair project, etc. — isn’t the only thing that will get the American people into the right mindset for the showdown which is sure to come in 2018.

  • J.B. Nicholson-Owens

    I am curious to know what would be the amount of time a corporation would be able to have uninterrupted copyright power over its works before the tax kicked in. Berne’s minimum term sounds like something that would definately cause a problem for this tax to start at 50 years after first publication (I don’t completely understand the legalese behind “formality” or “tax” but it sounds to my lay ears like the Eric Eldred Act would be a formality). Assuming it is a problem that causes some revision of the time before the tax begins, it doesn’t make sense to talk about corporate copyright powers in terms of “life of the author”.

    I’d like to respond to a couple responses I’ve seen so far:

    Lenz writes: “Calling your formality a tax while it is in fact a registration…” I don’t think this is a registration. Typically one registers something to begin a process, not to continue it. In this scheme I don’t have to register with anyone to gain copyright powers, I have to do something special to maintain them after 50 years. But this might be a small point of language more than anything. Lenz also writes “The other point is that you don�t need this law for works without commercial value.” and I don’t think that’s right. As I understand copyright law copyright powers are independant of (though often related to) commercial value. It is entirely possible to write a book, say, to which you hold copyright but which has no commercial value.

    One thing that isn’t clear in the description I’ve read so far: is this tax a one-time fee or an ongoing (say, annual?) fee? I don’t think it matters at all for the Berne convention problem (if one payment is allowed, I don’t see anything in Berne that would prevent multiple periodic payments to retain copyright powers). But at first glance of the FAQ I thought this was a periodic payment and then I re-read the description in the FAQ and noticed it didn’t say explicitly that the tax repeats. If we are to really continue calling this a tax that could be worth clearing up since some taxes repeat and some don’t.

    Finally, I am troubled by the comparisons to property in the FAQ (see the answer to question 10). What I have learned about copyright from various places suggests it is a bad mistake to think of copyright as property instead of policy (to paraphrase Siva Vaidhyanathan). Maybe the Supreme Court decision changes things in some way I’m unaware of but I was under the impression it’s a mistake to argue for a shorter term of copyright by talking about property (which people generally think they own forever and should control even after they are dead).

  • http://www.livejournal.com/users/rlmrdl/ Earl Mardle

    There has been much wailing and gnashing of teeth on the outcome of this legal challenge to the extension of copyright by the US Congress. Of course Eldred should have taken the case and of course Lessig should have prosecuted it and of course we should be aghast at their failure, but we should also stand back and consider what this is about. I have tried to do that and started an essay called Eldred v Ashcroft � Corporate America Pulls Its Memes Out of the Pool and dealing with the Fork in the Cultural Code

  • http://www.livejournal.com/users/rlmrdl/ Earl Mardle

    looks like the html link isn’t working, here’s the URL http://www.livejournal.com/talkread.bml?journal=rlmrdl&itemid=18913#cutid2

  • http://epeus.blogspot.com Kevin Marks

    On precedent noted on the pho list was that of rights reversion. You could recast this such that ‘out of print’ unavailable works would revert to the original author from the publisher after 5 years of unavailability, and to the public domain after a further five years.
    Defintions of availability are tricky here, obviously, but with the growing feasibility of publication on demand, this could achieve one of the ends by a differnt menas.

  • Jim Penny

    Look, it is indisputable that property can be taxed, right?

    So, if the believers in “intellectual property” are to be consistent, it is certainly
    reasonable that “intellectual property” be taxed, just as physical property is.

    The only hard part is valuating the “property”.

    So, why not allow the owner of the “property” to self-declare its worth, with the
    following provisos. 1) Compulsory sale — if anyone offers 200% of the registered
    value, the property is put up for auction, and the highest bidder receives it. High bidder
    cannot reduce the properties valuation for 5 years. Original owner receives the full
    200% value. 2) non-payment of taxes — if taxes remain unpaid for some number of
    years, say five, the property reverts to the public domain. 3) a copyright holder can
    avoid paying taxes at anytime, by valuing the “property” at zero. He continues to own
    the copyright, but may not collect anything beyond treble damages.

  • Curtis

    The only problem I have with this is the potential for perpetual copyrights. There should be a limit to the number of times you can re-register–say, 25 so you have 50 years free, and then 25 years for a buck apiece. After the 25 pay years, your work is PD automatically.

  • http://www.pointrel.org Paul Fernhout

    Jim Penny-

    I like your bigger tax proposal.

    I have made a similar one here in the “doc’s diagnoses” blog entry comments: http://cyberlaw.stanford.edu/mt/mt-comments.cgi?entry_id=889
    and elsewhere but with the option that anyone at any time may pay the self-assessed value to the rights holder and the work is immediately put into the public domain. Then essentially the value being self-assessed is the worth to the rights holder of the work being kept out of the public domain. The rights holder would then pay a 3% or so tax annually on this self assessed amount (for each country using this process — a nice revenue stream for developing countries, who otherwise mainly just lose out from enforcing broad copyrights).

    It’s important to recognize the new justification for taxing copyrights now that the Supreme Court have effectively said they can be perpetual. Perpetual copyrights break the historic copyright bargain that the public is paid for the external costs of the copyright monopoly by having the work in a short time enter the Public Domain. These external costs include courts, police, prisons for those who share, the information superhighway, researching rights holders, negotiations, chilling effect, deprival, etc. I feel the period for non-payment of taxes should be one year or less before the work enters the public domain.

    Note that an implicit issue is distinguishing between economic rights to benefit from distribution and “moral rights” such as in European copyright law regarding creative control of works. Without explicit moral rights, in the U.S. it seems authors expect the economic control of their work to be what gives them moral leverage. It might be worth distinguishing these — that is, authors might retain some moral rights over original works whether in the PD or not (such as rights of attribution).

    I think that a much more agressive tax on copyright might have a better chance of passing than a small one because it might bring in real revenue to balance th U.S. budget. Also, it may be more succesful to get such an approach passed first in a country that has not subscribed to the Berne convention, or alternatively to have all Berne convention signers agree to implement it together.

  • jam

    Why start at the 50 year point?

    We tax real property now. In Virginia (and other states, too, I think) personal property is taxed. We tax at least realized capital gains on investment property. Why not tax intellectual property-all intellectual property? With escheat to the Government (thence to the public domain) on non-payment, as with real property taxes.

    Ad valorem of course. Which probably amounts to a near exemption for self-publication.

    Patents, too.

    There might be some problem valuing IP, but there are equivalent problems valuing land in low-demand locations, which doesn’t derail real property taxation.

    I don’t think this violates Berne. This isn’t an obstacle to acquiring copyright. You still acquire copyright by default. You would simply have to declare what copyrights you’ve acquired in a tax return, and pay taxes on them. That European Union countries impose income taxes is not regarded as infringing on their treaty obligations to permit free mobility of labor between them.

  • Tim Connors

    Please add to your collection of kudos my own thanks for a noble effort, despite the outcome.

    My reaction to your op-ed proposal was similar to that of Neil Sluman above. Unlike Neil, I like your proposal as far as it goes, but like Neil I would propose in addition a publication requirement — a use-it-or-lose-it provision — if such a provision could be constructed without running afoul of Berne. As John Mark Ockerbloom points out, compulsory licenses rather than loss of copyright registration might be a good work-around. My premise is that the next best thing to having works in the public domain is to have them readily available in the marketplace. Accordingly, some of these notions resemble your Commons mechanism, but applied outside the context of the public domain.

    Suppose that after some point in the life of a copyright, say 50 years (say 10 if you think we could persuade Congress!), the owner is required not to let publication lapse for more than some reasonable amount of time — say five years. If the owner prefers not to fund the publication, it deposits the work with a repository that posts the material on the net and charges a compulsory license for access.

    The repository, which could be part of the Copyright Office, or a private entity licensed by the government, takes a cut to fund itself (and maybe the board that sets the compulsory licenses) and remits the difference to the copyright owner. The owner gets to control presentation, attribution and notice. Those who would like to commercially exploit a work in the repository could always contact the owner through the repository. The owner can have the work removed from repository by conventional publication elsewhere. Thus, an owner would be incented to put its work in the marketplace even if its worth is perceived as low.

    If the owner fails to post to the repository within five years of last publication after the 50 (or 10!) year point, anyone may freely post the work to the repository. Users would still pay the compulsory license, which would sit in a fund until claimed by the owner. (Interest on that fund could also help fund the endeavor.) Owner can only claim its license fee by posting to the repository, or publishing, and providing notice.

    Once the copyright on a work expires, the work could be routed directly to your commons or something like it, to help promote a vibrant public domain. (Links could also be added to promote a dedication to the public domain before the expiry of the copyright term.)

    For the owner that exploits its work diligently, nothing changes. For the derelict owner, an eminently fair bargain. For the public, many more works available in the marketplace, and some marginal improvement of the public domain as well.

    This proposal would help restore the bargain in the copyright clause without actually reducing the term of copyright. It would recognize that publication is a comparatively trivial burden now (unlike in 1789), and a small one to exact in exchange for the government-granted monopoly of a copyright — the justification for which has always been to make more works available to the public. Finally, it would be difficult for an opponent to justify its opposition, when all it has to do to avoid this system is exploit its copyright diligently.

    Sorry for the length, but I’ve been giving this a lot of thought since the decision. Thanks for providing this forum and thanks again for your hard work and that of the rest of your team.

  • http://www.brockerhoff.net/bb/viewtopic.php Rainer Brockerhoff

    It seems that some of the problems with copyright lengths and extensions stem from the fact that current law assigns comparative rights and timespans to individual and corporate copyright holders. What is just for an individual creator and his family will certainly give too much power to a corporation.
    Spider Robinson wrote an editorial arguing that his descendants deserve to profit from his works for nearly a century – especially in light of increasing lifespans – and I sympathize with him there. However, if he licensed his rights to (say) Disney, humanitarian considerations fall away, and the span should certainly be much shorter; or even revert to his spouse or descendants upon his death.
    Shouldn’t there be some re-examination of this issue? The Eldred Act might try to introduce some differential treatment between individuals and corporations…

  • Anonymous

    Is the FAQ about the Eldred Act licensed under a CreativeCommons license? Is it possible to freely copy and distribute it? If so, could the FAQ site be marked with the appropriate CreativeCommons tag? Thanks!

  • Nathanael Nerode

    1. Karl Lenz missed the point, which is that you can’t guarantee that *after* you use the copyrighted-but-abandoned work, someone will come back and sue *then*. It’s not *safe* to make yourself sueable, even if you don’t think anyone will sue. Corporations and Non-Profit Organizations certainly wouldn’t want to put themselves in any danger.

    The mere possibility of a suit has a massive chilling effect.

    2. Use-it-or-lose-it is the *best* option. No copyright holder could claim that copyright was established to allow them to suppress works (the Constitution denies that), so it would be very hard to argue against.

    The law should state that if a work remains generally unavailable (e.g. out of print) for (say) five consecutive years, it loses copyright protection and rises into the public domain. That is obviously not a formality. If a work was available to order on a copy-by-copy basis from the copyright holder directly via his or her website (for a reasonable amount, of course. $1000/page would be unreasonable), that should qualify as generally available.

    This achieves the primary goal of restoring the thousands of abandoned, suppressed works to the public.

    3. According to Rainer Brockerhoof, Spider Robinson thinks that his descendants “deserve” to profit from his works for a century. Why? Why should the children of authors get a free ride from copyright profits for their whole lives? The original life+X system in Europe was designed to cover the life of the author and the *minority* of his/her children, until they grew up — not for their whole lives. If the author saves money made during his lifetime, he still has an inheritance to give them. And most importantly, under the *US* justification for copyright, it must ‘promote the progress of science’. Do the years *beyond* life+50 really give authors a significant incentive to create more works? The economic analysis says no.

  • http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html#P109_16834 Javier Groshaus

    Those mentioning Art. 5 (2) of the Berne Convention [1] omit mentioning the SECOND part of the sentence:

    “such enjoyment and such exercise shall be independent of the existence of protection in the country of origin of the work”

    This is relevant because the supporters of the MIckey Mouse Law claim that they need to harmonize with EU copyright terms of author life + 70 years because otherwise, the EU would “deny this longer term to the works of any non-EU country whose laws did not secure the same extended term” [2]

    Wouldn’t it be against Berne Convention for the EU to “deny” protection according to the origin of the work?
    If the EU does not respect Art. 5 (2), then the USA should also not comply. Therefore, it would be beneficial to have formalities in order to avoid copyrighted orphan works (not necessarily a tax).

    [1] http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html#P109_16834
    [2] http://www.law.cornell.edu/supct/html/01-618.ZS.html