Revision of A Modest Proposal: Proportional Registration for Copyrights from Fri, 2007-05-25 00:28

"Question copyright" doesn't necessarily mean "abolish copyright", it just means ask the right questions, so we can come up with a system that will serve society best.

So here's a proposal: proportional registration fees for copyrights. Here's how it works...

First, for discussion's sake, let's assume that by default works would enter the public domain much sooner than they do today. A bit later we'll look at this initial term length in more detail. For now, let's consider the moment when a work is about to enter the public domain, under the new system.

Assuming the copyright owner does nothing, the work just enters the public domain (though with laws to protect proper attribution, whose coverage never expires). But there's an alternative: instead of letting the monopoly expire completely, the copyright owner can choose to register the work each year for continuation of copyright, with a 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 catch: since that declared value is now a matter of public record, anyone can pay it to the copyright owner to liberate the work into the public domain. This would be 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 renewal 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 a brief period of time, I have a regular copyright (again, we'll discuss that in more detail later). After this initial period is up, I decide to register to keep my copyright. Calculating that my novel is worth US $100,000, I 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. (There should be an upper limit on renewals, however; no work should be kept out of the public domain permanently.)

At any time after my initial registration, some third party can look up the declared value of "The Helprin Affair" in the copyright office's records, and pay me $100,000 to liberate it on the spot, or in later years perhaps less or more, if I've changed the declared value in subsequent registrations.

Note that this is not be a purchase of the copyright itself, but rather a liberation of the work from copyright entirely. People would still be free to sell their copyrights as always, 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). But whoever the owner is, whether the author or someone else, they're responsible for keeping up the registration. And while the work is still under registration, anyone can come along and pay the declared value to liberate it. The justification for making this a mandatory transaction, unlike a regular sale, is that it would make the work available to everyone, and so bring a public benefit.

So why have that initial term, for which no registration is required?

For a couple of reasons. First, requiring explicit registration from the very beginning would penalize small-scale artists disproportionately: they are likely to be short of resources and to either forget to register, or not know how. They would thus be unfairly disadvantaged in comparison to those working with publishers, who have a legal staff to remind them of registration requirements. But after an artist has a chance to see a work succeed, they're not likely to forget to register it (true, a few may still forget — no system is perfect).

The other reason to grant a free initial period of copyright is conservatism. Although I'm not convinced that copyright is truly necessary at all in the Internet age, there is at least an argument for giving new works a "clear landing space" for a few years after they're created. In other words, a default exclusive copyright, much like today's, but lasting a shorter time, and intended primarily to give the work time to establish its own identity. For the reasons given above, the owner would not be required to register the work with any agency at first — the copyright would be in effect by default. I'm not sure it's really necessary, but it wouldn't be excessively harmful, and it might make a lot of people more comfortable with reform.

There's a balancing act going on here. The idea is for 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 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 is like 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, anything over five years feels too long to me, and less than a year feels too short. But it doesn't matter here what the exact number is; three will do for now. That's a period of time within which most royalty-generating works, though not all, make the majority of their revenue anyway. With registration, perhaps it could go up to ten or even fifteen years (though I think the latter number still too high, because it's so punishing to independent derivative works).

While this proposal is a compromise, it's at least a compromise tilted toward the public interest. By analogy, think of a homeowner who cuts a driveway opening onto a public street, in order to gain access to a private garage. When you take a streetside parking space away from the public, you normally have to pay the city (that is, the public) a fee, and usually annually, too, not just a one-time fee. Similarly, a copyright owner who wants to keep a work out of the public domain should pay for that privilege. But unlike a garage, this privilege need not be permanent, because losing monopoly control over a work after roughly a decade is not as serious as losing your parking space.

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.