Phoenix from the ashes

by Michael Alderete on 1/19/2003

If you’re familiar with the ongoing debate over copyrights, you probably know that the Supreme Court ruled, in Eldred vs. Ashcroft, that Congress could extend copyrights essentially indefinitely. This is a case that a lot of people wanted to win.

The lawyer who lead the case, Lawrence Lessig, appears to be taking the defeat and turning it towards victory, with a proposal that would move the great majority of material affected into the public domain, while still allowing copyright holders who are actively using their rights to publish commercially valuable works to keep those copyrights:

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 wanted—98% of the public domain that our framers intended. Not bad for government work.

It’s a great proposal, and one that deserves broad support, even from the giant media companies that fought so hard to extend their copyrights. There’s a FAQ about the proposal. I’m exceptionally proud to have suggested question #3 to Prof. Lessig. (I do not know if I was the only one with that suggestion, but it’s exciting to have made a contribution, no matter how small.)

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