Public Domain Enhancement Act
Encyclopedia
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....
which, if passed, would have added a tax
Tax
To tax is to impose a financial charge or other levy upon a taxpayer by a state or the functional equivalent of a state such that failure to pay is punishable by law. Taxes are also imposed by many subnational entities...
for copyright
Copyright
Copyright is a legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time...
ed works to retain their copyright status. The purpose of the bill was to make it easier to determine who holds a copyright (by determining the identity of the person who paid the tax), and to allow copyrighted works which have been abandoned by their owners, also known as orphan works, to pass into the public domain
Public domain
Works are in the public domain if the intellectual property rights have expired, if the intellectual property rights are forfeited, or if they are not covered by intellectual property rights at all...
.
Impact
In the bill's latest form, the tax would have been a multiple-time affair, a sum of US$1 per work charged 50 years after the date of first publication or on December 31, 2006, whichever occurs later, and every 10 years thereafter until the end of the copyright termCopyright term
Copyright term is the length of time copyright subsists in a work before it passes into the public domain.- Length of copyright:Copyright subsists for a variety of lengths in different jurisdictions. The length of the term can depend on several factors, including the type of work Copyright term is...
, only on works first published within the United States (as charging it from foreigners would violate the Berne convention
Berne Convention for the Protection of Literary and Artistic Works
The Berne Convention for the Protection of Literary and Artistic Works, usually known as the Berne Convention, is an international agreement governing copyright, which was first accepted in Berne, Switzerland in 1886.- Content :...
except in some interpretations of the Berne three-step test
Berne three-step test
The Berne three-step test is a clause that is included in several international treaties on intellectual property. It imposes on signatories to the treaties constraints on the possible limitations and exceptions to exclusive rights under national copyright laws.- Berne Convention :The three-step...
). Failure to pay the Copyright Office
United States Copyright Office
The United States Copyright Office, a part of the Library of Congress, is the official U.S. government body that maintains records of copyright registration in the United States. It is used by copyright title searchers who are attempting to clear a chain of title for copyrighted works.The head of...
the copyright renewal fee on or before the date the fee is due or within a grace period of 6 months thereafter would allow the work to irreversibly lapse into the public domain in the USA and other countries and areas applying the rule of the shorter term
Rule of the shorter term
The rule of the shorter term, also called the comparison of terms, is a provision in international copyright treaties. The provision allows that signatory countries can limit the duration of copyright they grant to foreign works under national treatment, to at most the copyright term granted in the...
of the Berne Convention. However, if payments are made in time, the copyright may extended to the end of the normal maximum term, currently 95 years for a work made for hire. In practice, this would resemble copyright renewal under the Copyright Act of 1909
Copyright Act of 1909
The Copyright Act of 1909 was a landmark statute in United States statutory copyright law. It became Public Law number 60-349 on March 4, 1909 by the 60th United States Congress, and it went into effect on July 1, 1909...
, but the bill will create a 50-year term renewable five times for 45 years.
The problem that the law attempts to solve is that the cost of locating the owner of a work is often prohibitive. For works that are still in print, this is usually not a problem, but otherwise there is typically not a clear record of whether the original creator transferred the rights, died, or had a clear successor to its rights. The PDEA solves this problem by requiring a small tax to maintain copyright on a work. For works that the copyright owner no longer cares about, the copyright will lapse, and so copies and derivatives can be made freely. The Act would also require the Copyright Office to maintain an easily searchable database, so that for works that the original publisher still wishes to maintain copyright on, potential derivative creators can find out who paid the US$1 tax and negotiate with them for permission.
Legislative history
This bill was first introduced in the House on June 25, 2003 by representatives Zoe LofgrenZoe Lofgren
Zoe Lofgren is the U.S. Representative for , serving since 1995. She is a member of the Democratic Party. The district is based in San Jose.-Early life, education, and early career:...
(D
Democratic Party (United States)
The Democratic Party is one of two major contemporary political parties in the United States, along with the Republican Party. The party's socially liberal and progressive platform is largely considered center-left in the U.S. political spectrum. The party has the lengthiest record of continuous...
-CA
California
California is a state located on the West Coast of the United States. It is by far the most populous U.S. state, and the third-largest by land area...
) and John T. Doolittle (R
Republican Party (United States)
The Republican Party is one of the two major contemporary political parties in the United States, along with the Democratic Party. Founded by anti-slavery expansion activists in 1854, it is often called the GOP . The party's platform generally reflects American conservatism in the U.S...
-CA) where it went to the House Committee on the Judiciary. On September 4, 2003, it moved to the House Subcommittee on Courts, the Internet, and Intellectual Property. On May 17, 2005 it was reintroduced by Lofgren as H.R. 2408, and was once again referred to the House Judiciary Committee.
Opposition to PDEA
Opposition to the Public Domain Enhancement Act comes from the entertainment industry sphere, particularly the Motion Picture Association of AmericaMotion Picture Association of America
The Motion Picture Association of America, Inc. , originally the Motion Picture Producers and Distributors of America , was founded in 1922 and is designed to advance the business interests of its members...
(MPAA) and its lobbyists. In his book Free Culture, Lawrence Lessig
Lawrence Lessig
Lawrence "Larry" Lessig is an American academic and political activist. He is best known as a proponent of reduced legal restrictions on copyright, trademark, and radio frequency spectrum, particularly in technology applications, and he has called for state-based activism to promote substantive...
lays out the reason for the MPAA opposition to the bill:
- Congress had already "firmly rejected" the concept of copyright renewal in the Copyright Act of 1976Copyright Act of 1976The Copyright Act of 1976 is a United States copyright law and remains the primary basis of copyright law in the United States, as amended by several later enacted copyright provisions...
, which eliminated the need for registration and renewal of copyrighted works. - The $1 fee would harm copyright owners, particularly those with large numbers of active and potentially commercially viable works.
- The extension fee would encourage copyright restoration, a process that re-asserts copyright over a public domain work that originated outside the US and for which US copyright was not renewed.
- The benefits would fail to justify the administrative costs needed to set up and fund a registration system.
- The MPAA expressed concern about the effects of a story that underlies a currently copyrighted film moving into the public domain (although this would not invalidate the copyright of the film).
- The MPAA argues that current law already allows for the creation of derivative works via licensing and release of rights.
Proponents such as Lessig have suggested that copyright holders may be motivated to oppose the PDEA by a competitive threat: a huge wave of abandoned works would spill into the public domain which could form the basis of new derived works that would compete commercially with established copyrighted works.
See also
- List of intellectual property legislation pending in the United States Congress
- BALANCE ActBALANCE ActThe Benefit Authors without Limiting Advancement or Net Consumer Expectations Act of 2003 is a bill that would amend Title 17 of the United States Code, "to safeguard the rights and expectations of consumers who lawfully obtain digital entertainment." The bill was proposed in the 108th Congress...
- FAIR USE ActFAIR USE ActThe "Freedom and Innovation Revitalizing United States Entrepreneurship Act of 2007" was a proposed United States copyright law that would have amended Title 17 of the U.S...
- Eldred v. AshcroftEldred v. AshcroftEldred v. Ashcroft, was a court case in the United States challenging the constitutionality of the 1998 Sonny Bono Copyright Term Extension Act...
- Free CultureFree Culture movementThe free culture movement is a social movement that promotes the freedom to distribute and modify creative works in the form of free content by using the Internet and other forms of media....
- United States copyright lawUnited States copyright lawThe copyright law of the United States governs the legally enforceable rights of creative and artistic works under the laws of the United States.Copyright law in the United States is part of federal law, and is authorized by the U.S. Constitution...