proposal for a new kind of copyright law

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Comment by Silke Ernst on March 31, 2008 at 3:06pm

Thank you, Karl, for submitting what looks to me like a very innovative and interesting strategy for achieving a balanced copyright regime.
I think the mechanism of registry fees depending on the estimated value of a work could be an excellent tool to achieve appropriate user conditions.
There is one thing I would like to ask you, though: Who would actually pay the value to bring a work into the public domain, for example, $100,000 like in your example? If an individual wanted to actually use the work, wouldn't it be more advisable for that person to make a one-to-one license agreement? Such a license agreement would probably be cheaper because the "strain" on the right is less than in the public domain? How could free rider behavior be avoided?

Comment by Sasha Mrkailo on March 31, 2008 at 10:50am

Karl Fogel http://www.questioncopyright.org


Hello. Sasha Mrkailo invited me to submit a position paper to the Communia "Ethical Public Domain" workshop. His invitation is here:

http://www.questioncopyright.org/tools_of_change_2008#comment-3079

I saw http://www.ethicalpublicdomain.org/wiki.cgi?PositionPapers, but I couldn't find a way to submit the position paper. So I'm emailing it to you. I realize this may be too late for you to include -- my apologies, it's been a busy few weeks and I simply didn't have time before this weekend. However, I hope you will have time to read it and perhaps present it.

The paper is a very brief proposal for a new kind of copyright law. See http://www.questioncopyright.org/balanced_buyout for a longer explanation of the same idea.

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The Balanced Buyout Option: How To Turn Monopolies into Markets

The copyright system we have had for the last three hundred years was not designed to support creation. It was designed to support distribution, by guaranteeing certain monopoly rights to printers, in order to make printing an economically viable enterprise.

If we were to design a new copyright law for the age of the Internet, we might simply decide to have no copyright law at all. After all, it is already clear that there is no shortage of creativity, distribution is essentially zero-cost, and accurate attribution is best protected by widespread distribution anyway.

However, we might not want to jump directly from today's system to having no copyright law at all. There is an intermediate step that might be politically more acceptable, at least for now. This intermediate step is a copyright system designed to create a public domain market instead of a monopoly market. It is fairly simple:

A new work (a book, a song, a movie, etc) would first get an automatic three to five years of copyright. The primary purpose of this initial period would be to give the work a chance to establish itself, without interference from competing derivatives.

After this initial period is over, the copyright holder must register the work with the government in order to keep the monopoly. (Registration was formerly required for copyrights in many countries, in fact, so this part is not new.) When the owner registers the work, she must choose a number: the total value of the work. That number can be as low or as high as she wants, but her registration fee will be a percentage of that number, so she has an incentive not to declare too high.

Now comes the key: since the owner has declared a total value for the work, anyone can look up that value in the central copyright registry, and pay the owner that amount to liberate the work into the public domain. This would be a mandatory transaction. The owner must liberate the work for that amount, because she has been paid exactly the amount she declared the monopoly to be worth.

Since the value of a work may change over time, registrations are renewed annually, and the owner may change the declared value each time. The registration fee will, of course, adjust along with it.

Note that liberation is different from purchasing the copyright itself. A copyright could still be rented or sold, just as today, and might be sold for less or more than the registered total value (since the prospective purchaser might prefer to keep the monopoly, rather than liberate the work into the public domain). The new owner would, of course, be responsible for registration upkeep thereafter.

After twenty-five years, there could be no more renewals of registration: the work must pass into the public domain. Twenty five years is long enough for anyone to hold a monopoly on a replicable work.

The exact numbers I have used are not important. The initial period could be longer or shorter; the percentage of total value required for registration upkeep could be 1% or 5% or something in between; the final limit could be twenty years instead of twenty-five. The important point is that keeping something out of the public domain is a privilege, not a right. The owner of that privilege should pay the public for it, and the public should have a meaningful choice about the transaction. This system accomplishes both goals.

(See http://www.questioncopyright.org/balanced_buyout for more.)