From the start of this course we noted the difficulties involved in applying copyright law to the digital age. Computers, the internet, and technology have created challenges and dilemmas that go far beyond what the writers of copyright laws could have envisioned. These laws were created in a pre-digital era before notions of remix culture or Google Book searches. Additionally, there are some 20 amendments to the 1976 Act which have added to the complexities and ambiguities of copyright law. As such, the most controversial topics have been dealt with largely based upon the view of each individual court; in this sense there is a big gap in the legal text in which an individual is subject to the whims of each court’s interpretation of the law. Paul Samuelson views the need for copyright reform as a continuous task: “If one considers, as I do, that the 1976 Act was the product of 1950/1960’s thinking, then a copyright reform process should be well underway, for copyright revision projects have occurred roughly every 40 years in the U.S.” Yet Samuelson correctly acknowledges the difficulty of arriving at this reform in practice.
A bigger debate within copyright law is the issue of duration of copyrights. Earlier in the semester we read Mark Helprin’s article A Great Idea Lives Forever: Shouldn’t Its Copyright in which Helprin argues for preventing copyright works from ever entering the public domain. Yet as we discussed, Helprin’s viewpoint is in the extreme and contradicts the very essence of copyright and intellectual property law. As James Boyle explained: “Intellectual property is also supposed to create a feedback mechanism that dictates the contours of information and innovation production.” Thus, when interpreting or considering reform of copyright law one must recall the Framer’s intent “to promote the Progress of Science and useful Arts.”
Now with this background, it is easier to analyze potential modifications of the duration aspect of copyright. Certain studies have revealed that a meager 2 percent of works 55 to 75 years old retain any commercial value–yet these works are prohibited from the public domain. This system appears to be in direct contradiction of framer’s intent in which a potential individual/artist is prevented from developing the work further without any loss to the initial creator.
The Public Domain Enhancement Act seeks to remedy this problem. In short, this bill attempts to place more works into the public domain, allowing more people to further innovation and create new works. Under the PDEA, copyright holders must pay a $1 renewal fee fifty works after the work is published and every ten years thereafter until expiration.
Personally, I find it hard to believe that such a tiny fee will deter copyright holders from extending their copyright. Even with no commercial value evident, I would think that a copyright holder would hold on to the rights with hopes of the small chance of an unforeseen future licensing project, or simply out of a desire to retain the rights. Yet, the PDEA maintains that history proves that a great majority of owners will actually pass up on holding the rights and that this nominal fee will do the job. Therefore, the PDEA would thereby pass more works into the public domain. A more important and practical consequence of the PDEA is that it will make it easier to identify and contact copyright owners of works. In the current state, one is liable for infringement for unintentionally violating another’s copyright; yet, it is increasingly difficult to even identify copyright holders without any registry. This aspect of the PDEA seems essential for ensuring that one can locate what works have protected status. Though, I am not sure how useful the works will be fifty years after publication, I believe that they may provide some benefit for innovators. An informative site on the PDEA can be found here.
While the PDEA seems to keep the framer’s intent intact, there are those who argue against passing the bill, particularly companies in the entertainment business. Wikipedia lays out the core argument of the Motion Picture Association of America (MPAA):
- “Congress had already “firmly rejected” the concept of copyright renewal in the Copyright Act of 1976, which eliminated the need for registration and renewal of copyrighted works.
- The $1 fee would harm copyright owners, particularly those with large numbers of active and potentially commercially viable works.
- The extension fee would encourage copyright restoration, a process that re-asserts copyright over a public domain work that originated outside the US and for which US copyright was not renewed.
- The benefits would fail to justify the administrative costs needed to set up and fund a registration system.
- The MPAA argues that current law already allows for the creation of derivative works via licensing and release of rights.”
In my opinion, many of these claims lack any real validity. Here’s how I see it:
1-Congress may have “firmly rejected” copyright renewal in 1976, but that was 34 years ago and things have changed. Different times call for different measures.
2- A $1 fee would “harm” copyright holders? Seriously? Even if someone has 1,000 copyrights would $1,000 really “harm” them? Moreover, if they are being harmed they must be losing out on some aspect of retaining the copyright. If they want to keep it, they will likely still be collecting revenue on the work and a $1 payment should not make a difference. At the same time, at least according to the PDEA, $1 may be enough to prevent copyright holding for purposes that harm society and are against the reason for the law itself.
4- The benefits of this system to society will likely outweigh any of the costs of registration. Additionally, a system identifying what copyrights are in place is crucial for viewing what works are copyrighted and helping one contact a copyright holder for licensing purposes. The benefits are enormous; the costs of organizing such a system will be paid off pretty quickly.
5- Sure the law allows for licensing; but with the PDEA, identifying a copyright holder will be much easier. Additionally, the whole point of the PDEA is to increase ability to create derivative works and place works in the public domain at that point. Yes there is the ability to use copyrighted works at the moment, but the PDEA wants to increase those works so as to promote the progress of the arts and sciences.
At the same time, I would hope that the PDEA is just the first step in opening up works to the public domain. It may be more effective, and likely more controversial, if the fee is increased and the fifty year renewal is decreased as well. Either way, the petition to members of Congress can be signed here.