More Eldred - and Lessig's New York Times Proposal

Doc Searles' analysis of Eldred, here, is very good (and, golly gosh, approved by the man Lessig himself...). His basic point - that there is an issue of metaphor - the repositioning of copyright as property, not just some limited monopoly or the like - is a good one, and has been a source of argument for years in the IP community; Peter Drahos wrote a whole book about this ("A Philosophy of Intellectual Property" (1996) (book review of this book here (pdf).)

More interesting - Lessig's proposal post-Eldred, put forward in an op-ed piece in the New York Times. The basic proposal: after 50 yars, make people pay a fee - a small one, even as low as $1 according to Lessig's FAQ - each year to keep a work in copyright. The idea would be (a) works not being commercially exploited or that people didn't care about would fall in the public domain, (b) the really valuable works that are the justification for the Copyright Term Extension would continue to be protected, (c) the state would get some revenue, and (d) the government could keep a record of who paid the tax so it would be easier to check if something was still in copyright, and find the copyright owner.

The idea's prompted quite a lot of discussion - on /. (Slashdot, for the unitiated) and on the weblogs - guess we can expect something from Copyfight; watch this space.

OK, in some respects I like the idea. I'm still thinking about it. And if the tax only comes in after the minimum copyright term in the Berne Convention, I can see how this would not conflict with international treaty obligations. I can see a couple of quibbles however: (a) what about foreign copyright owners - are they suddenly going to have to worry about whether they've paid the tax, or how to do it? Not sure how it would accord with national treatment. Now, in relation to Australian copyright owners you could say - well, you only get the minimum Berne term in Australia, so why worry about what you do/don't get in the States? But that's not equal treatment with the copyright owners in the United States, so there might be some real issues. (b) what if a work isn't being commercially exploited for a while, but then is, and at some stage that 3 year period has elapsed. Will there be any appeal or provision for flexibility? I can answer that one myself though, I guess - the situation is unlikely. Works are unlikely to be suddenly "discovered" after 50 years. If they are, it's likely because someone has started to use them - probably because they are in the public domain. So there's not much of an argument there.