After the disastrous failure of Eldred v. Ashcroft in the Supreme Court, Eric Eldred, Lawrence Lessig and many of the other people responsible for the ill-fated case are now attempting to balance copyright law by taking a different tack: lobbying a bill in the United States Congress to provide for much-needed copyright reform. This is not as good as their original goal of curbing Congress' power to retroactively extend copyright, but will nevertheless be a big deal.
The idea for the Eric Eldred Act came from a New York Times Op-Ed piece written by Lessig in the aftermath of Eldred v. Ashcroft (which, unfortunately I can't read because it's something I have to pay for, but fortunately Lessig speaks about it in great detail elsewhere). The idea, if accepted, would quite likely move far more work into the public domain than a total victory in the Supreme Court for Eldred v. Ashcroft would have. The proposal involves having the copyright holder pay a yearly nominal tax of say, US$1, for every published work 50 years old or more to maintain its copyright. As part of the registration process, the copyright holder would be required to identify a copyright agent, a person charged with receiving requests regarding that copyright, such as for licensing. If a copyright holder fails to comply with these requirements for three straight years, the work automatically reverts to the public domain.
This could be a big deal. Justice Stephen G. Breyer pointed out during the case that less than 2% of the work from the initial period covered by the Sonny Bono Copyright Extension Act continues to have any commercial value (this presumably includes Mickey Mouse). The other 98% of works from 1923 to 1942 apparently no longer have any significant commercial value, and there would be little reason for the copyright holders (if they can even be identified!) to pay the tax. Within three years, the proponents of this proposal project, over 90% of works from 1923 to 1952 could enter the public domain under this system.
The registration of a copyright agent is also important, as it ensures that creative work thus copyrighted can be licensed and maintained. This prevents the infamous problem of old films from the 1920's and 1930's rotting in archives because their copyright holders cannot be identified, and restoration work (which requires licensing) cannot legally be done. The proposal requires that every year after the fifty-year mark that a copyright agent be registered along with the nominal tax, so that doing things like, say, reprinting mouldering books or restoring fading film can always be properly done. No registration, it's in the public domain, do what you like. Registered, you know who to talk to to do what needs to be done legally.
The reason for the nominal tax is the Berne Convention, which forbids registration or any other formalities as a precondition for enjoying the ability to impose restrictions with copyright. A tax is not a mere formality, it is a tax. It is however possible that those charged with implementing Berne could see this tax as a way to get around the no formality requirement, and object accordingly. Fortunately, the Berne Convention only imposes its requirements on the minimum term, so the Eric Eldred Act could be structured so that the tax would only apply beyond Berne's minimum term, which is still far shorter than Sonny Bono's term.
Of course, it would not give everything. It would not free Mickey Mouse, or any of the other copyrights on whose behalf the Sonny Bono Act was passed in the first place, which should ensure that this effort is uncontroversial to the big media conglomerates that want copyright to last forever. More than Eldred v. Ashcroft, this requires mass support as it involves appealing to Congress. Hopefully they can be persuaded to see the reasonability of this proposal. "When there is no continuing commercial use of a published copyrighted work at all," Lessig asks in his blog, "then what possible reason could there be for continuing to lock it up?"
The project is still in its embryonic stages at this point, and more will be said about it as Lessig and his compatriots flesh out the ideas further.
Update: June 8, 2003
Lessig has created an online petition for the Eric Eldred Act, which has received the more formal name Public Domain Enhancement Act. If you think it's a good idea, sign the petition at:
http://www.petitiononline.com/eldred/petition.html
The petition has, in less than a week, received more than 10,000 signatures already.
Update: July 31, 2003
The Public Domain Enhancement Act was introduced into the House of Representatives last June 25, by Rep. Zoe Lofgren (D-CA) and co-sponsored by Rep. John T. Doolittle (R-CA), as House Resolution 2601. The bill more or less is the idea that is described in this node, with the slight exception is that the $1 tax is only paid every decade, not every year. In the press statement following introduction of the bill, Lofgren said, “Our Founding Fathers recognized that society has an interest in the free flow of ideas, information and commerce. That is why copyright protection does not last forever. This bill will breathe life into older works whose long-forgotten stories, songs, pictures and movies are no longer published, read, heard or seen. It is time to give these treasures back to the public.” Doolittle also further stated: "Opening access to historical works for restoration and rehabilitation is essential toward ensuring that classics will be appreciated and cherished for future generations to come. I am proud to join my colleague Zoe Lofgren in sponsoring this common-sense legislation and greatly appreciate the broad base of support it has received."
If you like this bill, you folks in the United States know what to do!
References:
Eric Eldred Act: FAQ, http://www.eldred.cc/ea_faq.html
Lawrence Lessig, "On Building Rather Than Suing: The Eric Eldred Act", http://cyberlaw.stanford.edu/lessig/blog/archives/2003_01.shtml#000882
The text of the proposed Public Domain Enhancement Act: http://zoelofgren.house.gov/news/2003/1%20-%20Public_Domain_Enhancement_Act.PDF
Rep. Zoe Lofgren's press release: http://www.house.gov/apps/list/press/ca16_lofgren/pr_030625_PublicDomain.html