Why Eldred Reform Won't Work

Recently, Larry Lessig and Eric Eldred put up a proposal to counter the harm done by the excessively long copyright terms enacted in the Sonny Bono Copyright Term Extension Act (CTEA). It seems that even Steve Forbes -- the billionare and former candidate for President -- endorses this proposal. I very much support Professor Lessig, and have had the pleasure of seeing him give a presentation at Usenix 2002; he's an amazing speaker and probably the best advocate we've got in the work to restore balance to copyright. However, I suspect that this proposal won't gain support for a few key reasons.

The last century of copyright law has seen a trend that is best described the "an-artist-isn't-a-lawyer" line of reasoning. For the large part of the 1900's, copyright law in the United States was defined by the 1909 Copyright Act. This act forced an artist to follow several requirements in order to obtain and maintain copyright on their works. These included

publication of the work with appropriate copyright notice; the notice had to conform exactly to the form and format set forth in the law.

deposit of a copy of the work with the register of copyrights, and pay a nominal fee.

one renewal of the copyright by explicitly requesting renewal within one year of the original expiration data.

If the artist complied with the first two provisions, they obtained a copyright for a term of twenty-eight years. If the artist registered for renewal at the appropriate time and place, they received another twenty-eight years.

These requirements lead to a large percentage of copyrighted works entering the public domain due to legal technicalities. For example, if you placed the copyright notice on the second page of your autobiography instead of the first, or used the wrong year ("Did I start work on this novel in 1926 or 1928?"), and further failed to fully comply with the corrective procedures outlined in the law, poof, your life's work was in the public domain. Oops.

Some may argue that this process of registration, notice, and renewal was and is entirely appropriate. Congress agreed with this sentiment in the early half of this century (obviously), but the courts were innundated with case after case of a copyright being forefeit for legal technicalities. And, indeed, this was unfair to the artists; an independent artist, working on a novel or painting or sculpture, was more likely to be hurt by these provisions than large, corporate-financed works that were backed by an army of lawyers. This was not how copyright law was intended to work.

The 1976 Copyright Act -- the one on the books today -- removed several of these provisions. Amendments in 1989 and 1996 further removed these requirements, bringing the United States in line with the international treaty for copyrights, Berne. The removal of all formalities and legal burdens on the artist is such a central part of Berne that it is specifically set forth in the early parts of the treaty.

The Eldred proposal is based on the claims that

Berne constraints only cover the minimum duration of copyright set forth by the treaty.

These durations are life-of-creator-plus-fifty, or seventy-five years for corporate works (works-for-hire).

The United States has a copyright term of life-plus-seventy, or ninety-five years for works-for-hire.

And therefore the Berne constraints do not cover the last twenty years of copyright protection in the U.S.

However, given the (IMHO reasonable) trend to free the artist of formalities and legal obligations on copyrighted works, I find it highly unlikely that this proposal stands any chance of gaining large congressional support. I could also forsee a situation in which this proposal could backfire and cause the pendulum to swing back the other way; the Berne convention could be amended to a) extend international minimums to the current U.S. minimums, and/or b) extend the terms of Berne protections to the entire duration of copyright in the member country.

My own (modest, half-assed) counter-proposal is more of an idea plus a challenge. It has been an acceptable cornerstone of copyright that different classes of works receive different degrees of protection. Databases and directories (traditionally) only get protection in the selection and arrangement of their contents, but not automatic protection for the contents themselves; a database of authors and short stories gives you protection for how you present the data, but no protection for the short stories themselves (presumably that remains with their authors). However, works of art, books, etc, get much stronger protection and afford the creator with more control over their work.

Why not implement a sui generis copyright/trademark-like hybrid that covers copyrights past the end of their Berne terms, a "use it or lose it" law? If a creator does not exploit their work -- for commercial, non-profit, academic, etc, or any other use -- that work could enter the public domain. I know there exists at least one ruling that states there is no obligation for a creator to actually use their work: they can let it rot, essentially. There is the added complication of obtaining the physical medium on which an older work may be stored; for example, I can't see Universal, Time-Warner, or other movie companies being too eager to hand over the old, dying celluloid on which the last copy of an unreleased movie remains. However, it seems (to me, at least) more likely that this kind of proposal would be more likely to gain acceptance.

The challenge part is that I don't know enough about the legal background and history of copyright law to put forth a full-fledged proposal; thus I challenge people more knowledgeable than I in this field to fill in the gaps, point out unworkable parts, and just comment on this idea in general.

Well ... I'm waiting.