Selling Off the Public Domain?
My friend Robert has shared his disbelief and disdain regarding a petition endorsed by Lawrence Lessig that attempts to deal with the serious problem of "orphaned" works. Robert has labelled this as "selling off the public domain for cheap." Let’s look at what Lessig and others were proposing… because it was a good idea five years ago and still is.
Under current copyright terms, anything published since 1977 won’t enter the public domain until 2047 at the earliest. Writing, published or or not, is protected for the life of the author plus an additional 70 years. Personally, I believe these terms to be egregious in scope and length, but for now I just want to consider the length of the term that works are kept out of the public domain.
Lessig’s proposal takes a very incremental step towards changing the terms of copyright by proposing that after 50 years, a copyright holder would need to pay $1 (yes, one dollar) to extend their copyright for the rest of the mandated term. If they don’t, then the work goes into the public domain at that point. This isn’t selling anything of cheap because at "worst" the original copyright term is maintained while, at "best" the material goes into the public domain at least 25 years earlier than it would have.
Regardless of one’s belief about intellectual property, I’d hazard that there’s pretty widespread agreement that if there is no party left that has an interest in a work’s copyright– whether because the person or company no longer exists, or because they simply don’t feel there’s any business value in continued ownership– then there is no reason that work shouldn’t move into the public domain. But this simple idea is constantly thwarted by current copyright law, which has no provision for such "orphan" works. Trying to find the copyright holder of works even a decade or two old is an exercise in frustration. Even 20 years out a significant number of copyright holding interests don’t exist at all, and if they do they have no further active interest in the work.
Here’s how Lessig’s proposal would work in practice. Let’s say I published a book of poems 20 years go. In 2038, if I– or whoever owns the copyright at that point, which could be the publisher, could be me– don’t pay the buck, then the work goes into the public domain. If I (or the company) do, the copyright is maintained for the full term (the date of my death + 70 years, or at least 2078 since I am presumably alive right now). The payment of a dollar– which is meant to be a token amount– not only keeps the copyright in effect, but it also has the effect of making visible who owns the copyright, making it much easier for those seeking to secure the use of a work to do so.
I don’t see a prohibitive downside. This isn’t selling the rights to anyone, the extension is only available to the current copyright holder. If the copyright holder has a continued interest in the work, the token payment isn’t going to prevent them from taking it, and they presumably would be keeping track of copyright duration as is their obligation.
The only objection I have to the idea is that it isn’t nearly enough. Waiting 50 years might make it more palatable to media interests, but as a strong supporter of Creative Commons and other open licensing– and, in some cases, the Founder’s Copyright terms– I would think 20 years before requiring an act indicating interest would be a good start… in conjunction with working to get the length of copyright reduced to a much more reasonable term in the first place.
I can see where Robert is coming from if his objection is simply that the proposal doesn’t go far enough– or even that there should be no copyright at all– but I don’t see how it’s anything but an improvement over the current situation. Robert’s implicit position that "IP is a fiction" and that, presumably, there should be no copyright will have to be the topic of a different post.