No, I’m not talking about the Piracy Deterrence and Education Act. I’m talking about the other PDEA. Way back on June 25, 2003, Representative Zoe Lofgren (D-CA) introduced the Public Domain Enhancement Act (H.R. 2601) – a.k.a. “Eldred Act”, a bill to make it easier for older and endangered copyrighted works to fall into the public domain, by implementing a renewal fee system. As described on the Eldred Act website:
“The [renewal fee] test is a renewal fee proposal that will help shift works no longer being commercially exploited by anyone into the public domain. Here's how: fifty years after a copyrighted work was published, a copyright owner would have to pay a tiny renewal fee, a requirement which serves as a test by the government to see if the copyrighted work is commercially viable or otherwise important to the copyright holder. That renewal fee could be as low as $1. If the copyright owner does not pay that renewal fee for three years in a row, then the copyright would be forfeited to the public domain. If the renewal fee were paid, then the form would require the listing of a copyright agent--a person charged with receiving requests about that copyright. The Copyright Office would then make the listing of renewal fees paid, and copyright agents, available free of charge on their website.”
My first question was why the renewal fee would initially be paid at year 50, as opposed to earlier, but then I read on:
“We believe that most creators would be happy to let others use their works once they are no longer commercially viable. And we know that after 50 years, most works are NOT commercially viable. The problem is that it is really expensive for potential users to find willing creators 50 years after publication. Our proposal would make it easier and cheaper for these two groups to meet. Admittedly, many works lose commercial value much earlier than 50 years, and some never have it at all. We think that one could assign the renewal fee at 5 or 10 years and see just as many works go into the public domain without complaint. But, simply put, 50 years passes the sniff test: that is, the vast majority of people we've talked to seem to think this is an eminently reasonable period of time within which one could assume that most copyrights are likely to have maximized their commercial capacity.”
I think when you look at the whole purpose behind creating the renewal requirement in the first place – to get more works in the public domain a lot sooner – it is contradictory to establish an initial renewal date after such an extensive time period. As conceded above, many works lose their commercial value much earlier than 50 years. So, why not require a renewal after 20? After all, patents, which supposedly get their Constitutional authority from the same clause as copyrights, only last for 20 years from the date of filing the patent application. I understand that 20 probably doesn’t pass the “sniff test”, but from the looks of the amount of attention the PDEA seems to be getting in Congress, I am not quite sure anything less than “infinite” will pass the sniff test. The question of whether a renewal system can be implemented is an issue of debate. In a current case, Kahle v. Ashcroft, the constitutionality of Congress’s removal from the copyright laws of our traditional system of formalities (i.e., registration, notice, renewal), is being challenged by folks from the Stanford Center for Internet and Society. For more about this case, see here.
Speaking about Congress’ inaction, where is the rationale for not acting? Compared to other bills that would have a more profound effect on the copyright gorilla companies, the PDEA will only have an effect on copyrights that lose their commercial value – the ones where it does not make economical sense to pay the $1 renewal fee to extend their copyright protection. Obviously, the big companies will be able to pay the $1 renewal fee, so there will be no harm to their precious copyrights. In other words, the cash will still flow from the copyright gorilla companies to certain Congressional representatives even if the representatives vote for the PDEA!!!
The most current info I can find about the PDEA is that it was referred to the Subcommittee on Courts, the Internet, and Intellectual Property on 9/4/03. If someone has a more recent update, please let me know, so I can begin writing letters and explaining to Congressional representatives that a vote for the PDEA does not mean that Disney will quit paying their child’s college tuition. Additionally, there is a petition to "Reclaim the Public Domain" on the Eldred Act website for those who are interested in helping to get the ball rolling again on this legislation. It is quick and easy to sign. If you haven’t done anything patriotic today, take a minute or two to read it and sign it.
The reason the PDEA kicks in at 50 years is that life plus fifty is the minimum term allowed under the Berne Convention, to which the United States is a signatory.
Posted by: Joe Gratz | November 04, 2004 at 05:56 PM
That makes more sense. Gotta love those international treaties.
Posted by: Ryan Friedl | November 05, 2004 at 12:59 PM