The Copyright Registry - How It Could Work

I. Introduction

Even though P2P has been a huge subject of discussion in class this semester, I choose not to focus on this in my last post. The reason is, that it is very uncertain how P2P is going to affect the future of copyright, and even if it is going to affect the future of copyright. In stead, I choose to focus on an idea, that I actually believe could work, that I believe could help improve copyright law.

P2P isn’t the only problem in copyright law today. It is also a problem, that tracing and transaction costs are way too high. If someone wants to make a movie where pieces of, for instance, old movies are used, tracking down the copyright owners of that piece of movie can be extremely difficult and costly. Or if someone has a good idea for something new, like Eldred, who wanted to make a website with non-commercial publications of public domain works, the current system is also a problem. Because of very long copyright terms, a lot of works that doesn’t even have any commercial value, doesn’t fall into the public domain until many, many years after they have been forgotten.

In this post I will recap and elaborate on two earlier posts I wrote about the copyright registry judge Posner has suggested (read the posts here and here). Judge Posner suggests that we bring back the copyright registry, where an owner registers his rights, and has the possibility of renewing the copyright term, perhaps for an unlimited number of times. You can read the post Posner wrote that I first commented on by clicking here and the paper that he wrote together with William M. Landes on the subject by clicking here.

Having to renew your copyright means that a lot of works of no commercial value would fall into the public domain after the first term.

I believe that Posners idea of the copyright registry is fundamentally a good one. But I also believe that it needs a few adjustments in order to work most efficiently and to not conflict with current law.

II. Avoiding Conflict with the U.S. Constitution

In their paper, Posner and Landes argues, that it makes most sense economically to have indefinite renewal terms, where the owner can renew his copyright for as many times as he wants. This does, however, create constitutional problems. Article 1, section 8, clause 8 of the U.S. constitution says:

"Congress has the power to promote the Progress of Science and useful Arts, by securing for limited times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

They keyword here is "limited". Limited doesn’t mean limited until next time you renew you rights, it means that Congress has to make sure that your right ends at some point.

Furthermore, unlimited copyright does not promote the progress of science and useful arts, and it might even be a violation of the 1^st amendment.

Therefore, there has to be a maximum as to how many times you can renew your copyright.

III. The Number and Length of Terms

Posner isn’t very specific as to how long the terms should be. In his conclusion, however, he mentions that the initial term should be around 20 years or so. 20 years is of course a lot shorter than today, and it would make a lot of works fall into the public domain much faster.

But as Professor Solum told us in class, studies show that most new movies, has no commercial value after 3 years of their release. After that, their owners really have no interest in them anymore. Wouldn’t it make more sense to make the initial term 3 years then? 3 years seems a bit short, but 5 years could be a reasonable term. The only problem with the 5 year term is, that it might be difficult to get the RIAA, MPAA and APA to go along with it. However, if they have the possibility of renewing their copyright for several terms, they might not put up much of a fight.

The next term could be longer, for since you have gone to the trouble, and spent the money, of renewing your copyright, your work must be of some commercial value. The renewal terms could be 10 years each.

Since the number of times, where you can renew your copyright has to be limited, it has to be decided how many times we’re talking about. If a proposal of a copyright registry has to have any chance of being passed by Congress, the maximum duration can’t be very much shorter than today. I would like to see a maximum duration of 50 years, but if it has to be passed by Congress, 100 years seems more likely.

IV. The Registration and Renewal Fees

I discussed this in details in a previous post so I will just go over this briefly. To avoid that new artists cannot afford to have their work copyrighted, there shouldn't be a registration fee. But a renewal fee of about $100 seems reasonable, for if someone wants to renew their copyright, it must be because it has some kind of commercial value.

V. Who Should Manage the Registry?

The argument has been made against the copyright registry, that there is no one to manage it, and no money to finance it.

But today, there already is the possibility of having your copyright registered in the U.S. Copyright Office. It just isn’t mandatory. A lot of people (and companies) register their copyright with the U.S. Copyright Office, and they could manage the copyright registry as well.

The financing would come from renewal fees, and if necessary, from the government. But if the registry is computerized, which is the most logical thing to do in today’s modern world, it wouldn’t require much funds.

VI. Conclusion

The copyright registry could actually solve some of the problems with copyright today, and help promote the progress of science and arts.

This is how it would work: Authors (painters, movie makers etc.) would go to the U.S. Copyright Office and register the copyright to their work for free. For 5 years, they would have the exclusive right to their work.

If they wish to renew their copyright after the 5 years are up, they contact the U.S. Copyright Office again, and pay the $100 to get the copyright for their work renewed for another 10 years.

If they don't wish to renew their copyright, they don't contact the Copyright Office, and the copyright is deleted from the registry. The work then falls into the public domain, where others may use it to create new works.

If a person wants to use a piece of a movie for a new work of art, he or she contacts the U.S. Copyright Office and asks, if they have the movie in their copyright registry. If not, he or she is free to use it. If it is in the registry, the Copyright Office can tell the artist exactly who has copyright to the work, and the artist then has the opportunity to contact the owners and ask to use the movie.

Comments

[Randy Zagar]

Copyright registrations need to be automated.

More importantly, those registrations need to be on-line so that applications can know whether or not a work is re-distributable...

[Tommy O'Reardon]

This seems like a good idea, but i dont agree necessarily that unlimited renewals conflicts with the "limited times" provision in the copyright clause. I'm sure there's some con law argument that I dont know about, but this clause secures this exclusive right to "authors and inventors." As far as I can see it, there's an inherent limitation - you die, you cant renew. This obviously isnt a perfect answer, and i realize that the RIAA/MPAA wouldnt want to take on this risk (there's an increased risk to signing someone, i.e. 50 Cent if copyright terms were reduced to 5 years). It just seems that the critics of Posner's proposal focus on the precise wording, "indefinite" while ignoring the reality. Indefinite does conflict with "limited", but truth be told there is a limit that nobody can get around.

[Trine Jensen]

Tommy - I don't agree with you. As I wrote in one of my earlier posts:

"The most famous and lucrative works are mainly owned by multimillion dollar corporations, and their owners will undoubtedly continue to give notice of their rights. As long as the work is of considerable commercial value, someone will claim their copyright, if it is possible to continue to do so."

A work is not necessarily owned by a person. Most of the very lucrative works are owned by large corporations that don't "die". If they make money, they can go on for a lot longer than a lifetime - maybe hundreds of years. That can hardly be called a "limited time".

[Tommy O'Reardon]

Trine, I agree that companies purchase the exclusive rights to authors works. However, if anyone is going to interpret the copyright clause from a literal standpoint it cannot be ignored that the right is granted to "authors and inventors." This isnt to say that the transferability of the rights afforded by copyrights should be eliminated, but perhaps the workable position to take is that this transferred right should coincide with the life of the author/inventor and not exist in perpetuity. I realize there are still problems with this (i.e. situation where "inventor" applies to several different people), but its just a thought.