Re: [dvd-discuss] Petition for rational copyright law

[microlenz(at)earthlink.net]

On 4 Jun 2003 at 9:30, John Zulauf wrote:

Date sent:      	Wed, 04 Jun 2003 09:30:19 -0600
From:           	"John Zulauf" <johnzu@ia.nsc.com>
To:             	dvd-discuss@eon.law.harvard.edu
Subject:        	Re: [dvd-discuss] Petition for rational copyright law
Send reply to:  	dvd-discuss@eon.law.harvard.edu

> 
> 
> Wendy Seltzer wrote:
> > 
> > At 20:38 -0400 6/3/03, Jim Bauer wrote:
> > >I have trouble seeing how this will work.  Of course, I have
> > >trouble seeing how the current system works too.
> > 
> > So movement from very broken to slightly-less broken is progress.
> 
> This is more than slightly less broken IMHO.  Three problems (at least)
> are actually solved by this proposal
> 
> * Copyright status determination
> * Copyright hoarding
> * Copyright abandonment.  
> 
> There are improvements I'd like to see
> 
> * Fees based on class of works:
> * Earlier renewal times, progressive fees:
> * Abandonment Registry and Rights Foreclosure for abandoned works:
> 
> but more on that below.
> 
> Problems the proposal solves:
> 
> Copyright Status Determination:
> 
> For works over 50 years old, these would have an easily definable
> status.  No more wondering when the artist died (young like Glenn
> Miller, or old like Benny Goodman).  If the work is older than 50 years,
> just check the registry, period.  As for searchability, a copyright
> registry number (like a patent number) would help greatly.  These (like
> IP addresses) could even be assigned in blocks to large rights holders.

Or just require the seemingly hopelessly old fashioned requirment for having 
every work have a copyright notice with a date attached. Add XX years to the 
date and anyone can figure out when the copyright expires. While accountants 
and some intellectual property lawyers may proclaim life + n years a superior 
system, it fails the KISS test.

The Berne Convention is a bad idea. The USA spent 100 years avoiding it and the 
wisdom of that is evident to anyone without a vested interest.ANY copyright 
scheme which requires a registry system will become hopelessly complicated to 
the point that noone can possibly know when copyright ends.

> 
> Copyright Hoarding:
> 
> Currently there is no motivation to release any work early to the public
> domain -- even when the work is out of print (as it is not profitable
> enough).  With even a nominal rate, hoarding becomes a
> return-on-investment proposition.  I think $1 may be too low a fee but
> it is a non-zero number.  Any non-zero cost, multiplied by the large
> number of rights held by publishers, does result in the need to either
> release works from copyright, or keep them in print to pay their own
> freight.  So either we get more works in print, or more in the public
> domain.  In either case, the result is less copyright hoarding.
> 

I'm not adverse to using this to provide a tax base for works well into their 
term  with increasing fees (exponentially) as time gets extremly large. Maybe 
the higher fees will increase creativity and progress in the science and arts 
before they go bankrupt? Faced with that proposition some may elect to start 
over and that's good too.


> Abandonment:
> 
> Works are sometimes abandoned. No one has any commercial interest in
> them.  However, with the current long terms, the work also unavailable
> to the public until the end of the copyright term.  A renewal
> requirement means that abandoned works lapse at the renewal requirement
> date.  In the case of the current proposal that is roughly in half the
> time of the current system.  That is a major improvement.  Shorter
> "first renewal" time lines would be better, but half is a very good
> start.
> 

This is one area where a registry system is really needed. Without it, the 
process becomes subjective. One must be able to objectively assess when the 
copyright has been abandoned.


It almost seems as if we are working towards a compromise system:

Don't register- fine you don't get the full term (LIMIT that too) but only get 
a small number of years. After that If you claim copyright infringement, you 
must demonstrate registration OR else you are committing a fraud against the 
person you claim copyright infringement (civil damages) and a crime against the 
state (criminal sanctions)

Register - So much for practically nothing....and it gets more expensive as you 
go on.

Maybe as a practical matter they should be given the option: N years for 
nothing (registration) and if you don't want that well you pay more and more 
each year until you either are so productive or bankruptsy. BTW after N years, 
copyright cannot be transferred.
> Improvements to this idea I'd like to see:
> 
> Fees based on class of works:
> 
> I would like to see a different fees for different classes of works. 
> The fee could be tied to the mandatory licensing terms -- if any. 
> Clearly the renewal fee for an individual photograph or poem shouldn't
> be the same as for a novel or feature-length film.  Somehow the renewal
> fee needs to be proportional to the nominal value for an example of a
> class of work.  Charging a photographer for 7 photographs the same
> amount as a studio for "Land Before Time" I-VII seems to violate
> fairness, and acts to support "major media" over individual artists.
> 

Agreed. Time and fees must be worked out. No need to have the Pentium II design 
copyrighted for a 125 yrs..but poems can be bundled together into works. So can 
photographs. The pieces get as much copyright protection as the whole. I think 
that the fee being based upon the nominal value is too subjective. Make it a 
flat rate and let the subjective aspect come into play in the renewal phase 
with an objectively increasing fee scale!

> Earlier renewal times, progressive fees:
> 
> Also, I think the starting term for registration and renewal should be
> earlier (20-30 years), and progressive.  The earlier term might be
> contingent on "in-print" vs. "out-of-print" or "abandonment" status. 
> Annual increases in the registration fee would also be helpful.  This
> causes the rights holder to constantly cull "less commercially viable"
> works over the N->95 or Life+N term.
> 


Or make the fee contingent upon demonstrating progress. A work which is out of 
print may be given a notice that the renewal is void in 5 years if not in print 
or general distribution...the carrot and stick aspect need to be re-introduced 
into copyright. Right now it's nearly perpetual and one need do NOTHING to get 
it. 


> Abandonment Registry and Rights Foreclosure for abandoned works:
> 
> Finally, "abandonment" needs to accelerate the registration
> requirement.  There should be a public registry of "abandonment" Public
> Notices.  These should of of two types.  First there should be
> "Declaration of abandonment" notices which would declare works to be in
> the public domain.  Tax incentives for voluntary abandonment could be
> provided (diminishing to zero as the renewal fee year approaches). 
> Second, there should be "Notice of Rights Foreclosure" where individual
> could file (under penalty for false filings of course) declarations that
> a given work has been abandoned. (Is out of print for N years, no rights
> holder or successor exists or can be determined... IANAL (L ==
> legislator in this context).  After a "notice period" of 1 year the work
> would be declared abandoned.
> 

The stick is needed.  Tax incentive are one approach but a good financial kick 
in the pants it even better. But the idea that copyright should be a thing 
which requires positive work to maintain rather than nothing to have is what is 
needed. THe copyright holder becomes an aristocrat awaiting poacher upon his 
intellectual property rather than a landholder required to assert his rights or 
lose them.

> The "Notice" provision would create a whole new industry of abandoned
> works finders (for commercial enterprises who want to exploit those
> works) and right holder finders (who would search for the rights holder
> of a "Notice" pending work and (for a modest fee) let them know they are
> about to lose a work.

Yeah..that's another issue to be dealt with...vultures and parasites...look at 
Disney and the Winny the Pooh case....

> 
> .002
>