The New York Times has declared that the "grand experiment" of the public domain is over. The Supreme Court has taken the first step towards "Copyright Perpetuity." Maybe not.
This FAQ is intended to explain a proposal to help move work that has no continuing commercial value into the public domain. The proposal was first proposed in an op-ed in the New York Times. If you'd like to see other questions answered, click here.
We have proposed a tiny tax designed to move unused copyrighted work into the public domain.
Fifty years after a copyrighted work was published, a copyright owner would have to pay a tiny tax. That tax could be as low as $1. If the copyright owner does not pay that tax for three years in a row, then the copyright would be forfeited to the public domain. If the tax is paid, then the form would require the listing of a copyright agent--a person charged with receiving requests about that copyright. The Copyright Office would then make the listing of taxes paid, and copyright agents, available free of charge on their website.
Great question. The public domain refers to that creative content which anyone can use without the permission of the content's creator. It is where, for example, all the works of Shakespeare are, and essentially where all work pubished before 1923 is. Anyone is free to use that work without asking the permission of anyone.
The public domain is important because it frees creators to build upon and cultivate our past without unnecessary or harmful restrictions. When work is protected by copyright law, anyone desiring to distribute or build upon that work must get the permission of the copyright holder. That usually means hiring a lawyer to locate and secure permission. Lawyers are expensive, and depending upon the use, permission is often not granted.
The public domain, from this perspective, is a lawyers-free zone. You have the right to perform a Shakespeare play however you want. You don't need special permission from the heirs of Shakespeare. You don't have the right to perform Porgy and Bess however you want. For that right, you need the permission of the Gershwin estate.
We believe that it is completely appropriate that a copyright owner have the right to control his or her work for a limited time. But when there is no continuing need or desire to control that work, it should be free for others to build upon however they wish.
Lots. We estimate that of all the work copyrighted between 1923 and 1942 (the first twenty years affected by the Sonny Bono Act), only 2% has any continuing commercial value. If a work has no commercial value, then there would be little reason for the copyright owner to pay the tax. That work would therefore quickly pass into the public domain. If the proposal were adopted as outlined, then within three years, over 90% of the copyrighted between 1923 and 1952 would be in the public domain. This would be massive increase of material into the public domain, through a mechanism that would create a cheap and useable record of the material that remains under copyright.
Copyright reaches both published and unpublished works. It protects unpublished works primarily for reasons of privacy. There's no good reason to force people to take affirmative steps to protect work they have not published to others. So this proposal would only apply to work that people initially intended to make available publicly. The alternative (50 years after creation) creates very difficult problems of timing. I can know without asking you when a work was published. I can't easily know when the work was created.
Copyright owners who earn revenue from their work already pay a tax to the government--an income tax. This tax should not be a punitive measure added on top. Its purpose is only to help identify which copyrights should be continued, and which should be passed into the public domain.
It need not be. If a copyright holder is making money from his or her copyright, then he or she is already paying a tax. The IRS could simply add a form to the packet that would allow the copyright owner to itemize the copyrights for which the tax is being paid. For large companies holding many copyrights, of course this could be a hassle--unless the government thought creatively about ways to simplify the burden. We'd be happy to identify the coders who could produce a simple system for one-click tax payments.
Great question. But see the next question and its answer.
No. Berne forbids registration or other related formalities as a condition of getting or enjoying a copyright—at least during the minimum term required by Berne (which is life of the author plus 50 years). But we believe that a tax is not a "formality"; a tax is a tax.
It is possible that those charged with enforcing Berne would take a different view. They might see this tax as a simple way around the "formality" requirement. But as John Mark Ockerbloom nicely points out, Berne only imposes its requirements for the minimum term. If there is a formality problem with structuring this as a tax, then the proposal could be structured to apply only beyond Berne's minimum term.
That would be a great result that we would wholly support. It would impose the same burden on copyright holders, but it might be politically easier to sell. "Tax" is a bad word, whatever the good. "Registration" is the sort of thing we have to do with all sorts of property. If I must register my car and my land, why not my copyright?
The only argument that favors the tax idea over the registration requirement is that it would at least give us the opportunity to experiment with shorter terms later on. If, after 10 years, we learn that the tax on 99% of the work is not paid after 50 years, then Congress could move the line back. We'd rather Congress had that freedom than locking ourselves into the structure of Berne. But as for this moment, save for the slight difference between 50 years post publication and 50 years after death, a registration requirement after the limits of Berne would be great.
Obviously, we believe that would be better. But let's start with something that seems reasonable to all. It will make shorter terms seem more reasonable later on.
Every tax is a burden, no doubt. And every tax should be as low as possible for both efficiency and fairness reasons. But it is hard to see how this tax would burden the poor. This tax would only apply to people either receiving income from copyrighted works, or who want to keep the copyright of a work that is no longer earning income. An alternative to lessen the burden on the first class might be a credit for any taxes paid (so you could deduct the income tax paid on a royalty from the Eldred tax). And the solution to lessen the burden on the second class would be to keep the tax low.
When Congress chooses. As Jack Valenti said, summarizing the Supreme Court opinion in Eldred, Congress has an "absolute right" to choose whether and when copyrights expire. Congress has chosen 95 years for corporate work, giving copyright owners, as Justice Breyer showed, at least 99.8% of the value of a perpetual term. We'll see if Congress lets the terms of copyrighted works expire in 2019.
Three things: First, you should write your Congressman or Congresswoman about it now. Second, you should send money to organizations that support the idea. Check here for a list, or paypal to free.mickey@foobox.com. And third, you should talk about it, best in weblog space, but anywhere would be great. This will only happen if people push Congress to do something about it.
Send any questions here. The Lessig News web log will carry updates. And watch eldred.cc for more news.