Revision of A Modest Proposal: Proportional Registration of Copyrights from Thu, 2007-05-24 17:24

"Question copyright" doesn't necessarily mean "abolish copyright", it just means we should ask the right questions, starting from the premise that whatever system we have, it should be designed to serve all of society.

So here's a proposal: proportional registration fees for copyrights.

Here's how it works...

First, let's start from the premise that it might be good to give new works a "clear landing space" for a few years after they're created. That is, a default exclusive copyright, much like today's, but lasting a shorter time, and mainly meant to give the work time to establish its own identity. Like today's copyright, it would not require the owner to register the work with any agency — the copyright would be in effect by default.

This is a balancing act. We want the original work time to become known on its own terms, before derivatives appear that capitalize on the momentum of the original work's initial appearance might but that might also eclipse it before it has a chance to make an impression. On the other hand, we also want derivatives to become possible during the "reaction cycle" of the original work, that is, during the time when the original work is still relevant, so that the derivative has the chance to be a meaningful response. (This corresponds to the right to fork in open source software; see The Wind Done Gone for an example of why this right is important).

So what's an appropriate amount of time for the original work to make its splash, before having to contend with derivatives? I won't pretend to know for sure, but for the purposes of discussion, let's say three years. Instinctively, I feel that anything over five would be too long, and less than a year would be too short. It doesn't matter here what the exact number is; three will do for now.

So what happens when that three year period expires? Does the work just enter the public domain (with laws protecting proper attribution, of course)?

Although I think a good case can be made for total expiration of monopoly after three years, there is an alternative that would serve society well while still giving publishers and authors a longer copyright term when they really want it.

Instead of expiring the monopoly completely, require explicit yearly registration after three years, and make the registration fee proportional to the self-declared value of the work. That is, the copyright owner picks a number of dollars that she claims the work is worth. The yearly registration fee will be, say, 5% of this number. (The exact proportions don't matter here: registration could be semi-yearly instead of yearly, the percentage could be 2% or 10% instead of 5%. The idea is the same, regardless of the details.)

Here's the trick: that declared value is now a matter of public record, and anyone can pay it to the copyright owner to liberate the work. It's a mandatory transaction: the copyright holder has declared what the work is worth (and has an incentive not to declare too high, because she'll have to pay a percentage of that value in registration upkeep every year), and anyone willing to pay that amount can cause the work to go into the public domain.

So say I write my great American novel, "The Helprin Affair". For three years, I have a regular copyright. (That's a period of time within which most royalty-generating works, though not all, make the majority of their revenue anyway.) After the three years are up, I decide to register to keep my copyright. I decide my novel is worth US $100,000 and therefore pay $5000 to the copyright office, which I can afford, because the novel has been selling strongly and I'm sure I'll make that back in royalties this year too. The next year, I make the same decision... But eventually, there will come a time when it's no longer worth it to me, and I'll either reduce the declared value (so as to pay a smaller fee), or release the work entirely.

But any time after the initial registration, some third party can look up "The Helprin Affair"'s declared value in the copyright office's records, and pay me $100,000 to liberate it (or perhaps less, if I've reduced the declared value in later years).

Note that this would not be a purchase of the copyright itself, but rather a liberation of the work from copyright entirely. People are still free to sell their copyrights as before, for whatever price they can get (which, interestingly, may be higher or lower than the declared value — the market dynamics behind that decision are, in their own way, as complex as those behind determining a work's value under today's copyright regime). Whoever the owner is, whether the author or some other party, they're responsible for keeping up the registration. But since paying the declared value is a way of making the work available to everyone, that's the justification for making it a mandatory transaction, unlike a regular sale.

This system would go a long way toward alleviating the orphan works problem, because it would ensure that the copyright owner of a work could be found (someone must be paying the fee over at the registry), and the ghost works problem, because it would at least set a maximum amount of money that, for the vast majority of works, would probably still be affordable for a party wanting to see that work in the public domain.

Thoughts?