Man Without Qualities

Saturday, January 18, 2003


Professor Lessig writes today (Saturday) in the New York Times on behalf of his clients to promote a proposal that once copyrights get old (he suggests 50 years) copyright owners be required to pay a small fee each year or risk the passage of their copyright into the public domain. The scheme is intended to address the problems supposedly created by difficulties in finding the owners of old copyrights which are no longer being exploited commercially. One might wonder how serious a problem this is for the nation, since the copyrights which are the focus of the scheme are by assumption not being exploited commercially - although his proposal seems to go beyond that class.

It is refreshing to see Professor Lessig abandon the Olympian heights of his prior assertions that the Constitution already gives his clients what Congress will not. But there is still a disturbing element of excess in what Professor Lessig proposes here - even if all of his assumptions are accepted on his own terms.

Specifically: why should the consequence for repeated failure to pay Professor Lessig's proposed fee be forfeiture of copyright to the public domain? For example, why should someone who finds an unknown, unpublished manuscript by, say, F. Scott Fitzgerald, have the right to publish it just because the author's heirs haven't paid the fee? A homeowner who doesn't pay real property taxes doesn't risk forfeiture of an old house - although the house may be seized and sold at auction with the excess of the sale price over the taxes returned to the homeowner. Anyone proposing that a non-taxpaying homeowner forfeit his home would be universally considered to be advocating a wildly excessive idea. And that is also true of Professor Lessig's proposal. Indeed, even a public auction of the copyright would be a nasty, excessive and inconsistent with the customary reliance on licenses - not sales - for rights exploitation in the field of copyright.

Assume all of Professor Lessig's assertions and concerns are true and valid, and further assume the copyright owner's repeated failure to pay the proposed fee. Why isn't it enough for the law to deem the copyright subject to a license at the option of a would-be user (Professor Lessig's client) on terms stipulated in the statute and for a statutory royalty payable on demand to the copyright holder? The user/licensee/client could be required to pay the royalty to the Copyright Office on behalf of the copyright owner, or to provide contact information to the Copyright Office and maybe in some publications or on the internet so that the copyright holder could demand the royalty.

And why should the copyright owner not be able to cut off the license with respect to future actions by the licensee just by paying the fee arrearage and notifying the licensee? That is, if one of Professor Lessig clients has already created something (say, a book) using the copyrighted material while the statutory license is in place, it is perhaps reasonable that the law would allow all existing copies of the book to be sold - and perhaps allow an already-contracted run of the book to be printed for some period of time specified in the statute. Other than those and similar considerations that could be dealt with in the statute, why should the copyright owner not be allowed to terminate a third party's right to use the copyright through notice and perhaps bringing the fee arrearage current?

Professor Lessig analogizes his scheme to one already existing for patents. But a copyright automatically arises upon the mere creation of every original work by its author - where one obtains patent rights from the government through a long, specialized, expensive process. Unlike the patent case, the scheme Professor Lessig proposes in the copyright field would be an invitation to technical, absent-minded, unjustified forfeiture - and not consistent with the means by which copyrights are created. In short, it would be a nasty, excessive "gotcha!"

It's not just equity that abhors forfeiture. Most reasonable people are wary of them. Making this scheme less excessive might make it or something like it more likely to be adopted.

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