March 13, 2003  ·  Lessig

So I received a copy of the March 31 issue of Forbes with a note from the editor in chief: “You might be interested in one of the editorials on page 28.” On page 27-28, Steve Forbes endorses the idea of the Eldred Act. More good news about progress on that front soon, but I am proud to count Mr. Forbes as someone who gets it. Now if we could only find an equivalently prominent Democrat.

  • Anonymous

    The editorial is now online at (scroll down to the heading “Patently Good Idea”)

  • Karl-Friedrich Lenz

    I note that the editorial and the people taking part in the slashdot discussion about it are all talking about “fees”, not taxes, in contrast to your proposal.

    I think they are right, since you basically propose a registration requirement after fifty years, not something to raise funds for the general budget.

    The Berne treaty rules out all registration requirements, not only those at some time of the copyright duration. But then, recently no one expects the U.S. to respect any treaties anyhow, so that probably won’t be much of a problem. At least the violation of the Berne treaty, if there is one, is not obvious and is not very serious.

  • Lessig

    I don’t think there’s a difference between “fees” and “taxes” except a semantic difference. Both would need to be squared with Berne. The simplest (and absolutely clear) way to square it with Berne is to impose the requirement on American’s only. Berne restricts formalities with respect to foreign copyright holders. That may seem like an unfair difference (foreigners don’t have to register, but American’s do), but it doesn’t seem so unfair the other way around. And if we want to minimize the unfairness, we could also press other countries to impose the same requirements on their citizens.

  • Karl-Friedrich Lenz

    1. I checked Merriam-Webster online and found for

    a) “tax”: a charge usually of money imposed by authority on persons or property for public purposes, and for

    b) “fee”: a sum paid or charged for a service.

    The difference seems to be: “fees” are in connection with a certain service, in this case with that of registering the copyright after 50 years.

    Also, in the cases of patents and trademarks, people use the word “fee”. So I would suggest editing the “Eldred Act” proposal, replacing references to “tax” with the word “fee”.

    2. Restricting the Eldred Act to Americans as a sure-fire way to bypass Berne Convention obligations would seem to be problematic considering that article 3 guarantees all Berne Convention rights to all citizens of all countries of the Union. Not only to foreigners. For example, you can’t join Berne if your copyright term is only ten years, even if you restrict that to your own citizens.

    However, the U.S. is special. In Section 2 of the Berne Convention Implementation Act of 1988 , Congress declares:

    “(1) The Convention for the Protection of Literary and Artistic Works, signed at Berne, Switzerland, on September 9, 1886, and all acts, protocols, and revisions thereto (hereafter in this Act referred to as the “Berne Convention”) are not self-executing under the Constitution and laws of the United States.

    (2) The obligations of the United States under the Berne Convention may be performed only pursuant to appropriate domestic law.

    (3) The amendments made by this Act, together with the law as it exists on the date of the enactment of this Act, satisfy the obligations of the United States in adhering to the Berne Convention and no further rights or interests shall be recognized or created for that purpose.”

    Haimo Schack, writing in his book “Urheber- und Urhebervertragsrecht, 2nd edition 2001, page 379″, says that this is violating international law. However, if you limit your discussion to U.S. legislation, Congress has declared rather clearly that they don’t intend to have their legislative powers limited by the Berne Convention.

    So the short answer seems to be: There might be some problems with the Berne Convention, but these are unlikely to stop your proposal in Congress.