The Public Domain Enhancement Act FAQ

v1.02

The New York Times has declared that the "grand experiment" of the public domain is over. The Supreme Court has taken the first step towards "Copyright Perpetuity." Maybe not.

This FAQ is intended to explain a proposal to help move work that has no continuing commercial value into the public domain. The proposal was first proposed in an op-ed in the New York Times. If you'd like to see other questions answered, click here.

  1. What have you proposed?

    We have proposed a tiny fee designed to move unused copyrighted work into the public domain.

  2. How would it the [renewal fee] test work?

    The [renewal fee] test is a renewal fee proposal that will help shift works no longer being commercially exploited by anyone into the public domain. Here's how: fifty years after a copyrighted work was published, a copyright owner would have to pay a tiny renewal fee, a requirement which serves as a test by the government to see if the copyrighted work is commercially viable or otherwise important to the copyright holder. That renewal fee could be as low as $1. If the copyright owner does not pay that renewal fee for three years in a row, then the copyright would be forfeited to the public domain. If the renewal fee were paid, then the form would require the listing of a copyright agent--a person charged with receiving requests about that copyright. The Copyright Office would then make the listing of renewal fees paid, and copyright agents, available free of charge on their website.

  3. I hear about "the public domain" a lot in connection with the Public Domain Enhancement Act and copyright law in general. What is "the public domain" and why is it important?

    Great question. The public domain refers to that creative content which anyone can use without the permission of the content's creator. It is where, for example, all the works of Shakespeare are, and essentially where all work published before 1923 is. Anyone is free to use that work without asking the permission of anyone.

    The public domain is important because it frees creators to build upon and cultivate our past without unnecessary or harmful restrictions. When a work is protected by copyright law, anyone desiring to distribute or build upon that work must get the permission of the copyright holder. That usually means hiring a lawyer to locate and secure permission. Lawyers are expensive, and depending upon the use, permission is often not granted.

    The public domain, from this perspective, is a lawyers-free zone. You have the right to perform a Shakespeare play however you want. You don't need special permission from the heirs of Shakespeare. You don't have the right to perform Porgy and Bess however you want. For that right, you need the permission of the Gershwin estate.

    We believe that it is completely appropriate that a copyright owner have the right to control his or her work for a limited time. But when there is no continuing need or desire to control that work, it should be free for others to build upon however they wish.

  4. What good would the Public Domain Enhancement Act do for the public domain?

    Lots. We estimate that of all the work copyrighted between 1923 and 1942 (the first twenty years affected by the Sonny Bono Act), only 2% has any continuing commercial value. If a work has no commercial value, then there would be little reason for the copyright owner to pay the renewal fee. That work would therefore quickly pass into the public domain. If the proposal were adopted as outlined, then within three years, over 90% of the copyrighted between 1923 and 1952 would be in the public domain. This would be massive increase of material into the public domain, through a mechanism that would create a cheap and useable record of the material that remains under copyright.

    The library assistance provisions of the Public Domain Enhancement Act then serve to allow libraries to effectively preserve and promote the growing public domain, as well as adapt to digital collection management. Lastly, the reaffirmation that what enters the public domain stays in the public domain will deter future attempts to loot from our common creative heritage.

  5. I'm a copyright holder. What does the Public Domain Enhancement Act do to my copyrights?

    The good news is, this bill doesn't alter your copyright one bit. You still retain it and every right to exercise and enjoy it. You're not losing anything you already have. The Public Domain Enhancement Act will allow you to abandon your copyright to the public domain at fifty years, but more importantly, will also provide for a simple and comprehensive registry that will make it easier for potential users to identify copyright holders. Thus we believe that the Public Domain Enhancement Act gives you even greater options for the protection and use of your copyright.

  6. Why is the renewal fee so low? Isn't this a good way to raise money for the government?

    Copyright owners who earn revenue from their work already pay some fees to the government--an income tax. This renewal fee should not be a punitive measure added on top. Its purpose is only to help identify which copyrights should be continued, and which should be passed into the public domain.

  7. When can the copyright holders pay their $1? Can they "pre-pay" at the time they register the copyright?

    Copyright holders must pay their $1 renewal fee no earlier than 50 years after the work was published. They cannot pre-pay their renewal fee at the time they register their copyright. To allow pre-payment would defeat the idea that the renewal fee is a test of the copyright's usefulness after fifty years (for more discussion of the 50 year requirement, see below.) We believe that the test is functioning as it should ONLY if it is able to separate those 50-year-old works in which the copyright holders want to retain active rights from those whose owners have abandoned the work to the public domain. The public domain will be enriched when works whose copyrights serve no useful function can become available for common creative use.

  8. Why pay at 50 years?

    We believe that most creators would be happy to let others use their works once they are no longer commercially viable. And we know that after 50 years, most works are NOT commercially viable. The problem is that it is really expensive for potential users to find willing creators 50 years after publication. Our proposal would make it easier and cheaper for these two groups to meet.

    Admittedly, many works lose commercial value much earlier than 50 years, and some never have it at all. We think that one could assign the renewal fee at 5 or 10 years and see just as many works go into the public domain without complaint. But, simply put, 50 years passes the sniff test: that is, the vast majority of people we've talked to seem to think this is an eminently reasonable period of time within which one could assume that most copyrights are likely to have maximized their commercial capacity.

  9. Will only owners of money-making copyrights be able to pay this renewal fee? What if my copyright isn't used by anyone anymore? Will I be able to preserve my copyright too?

    Your copyright doesn't need to be making money for you in order to keep it out of the public domain. Any reason for which you choose not to abandon your copyright, regardless of whether the work is currently being commercially exploited, will do. All you have to do is pay the $1 renewal fee, and you will retain the benefits of your copyright for its entire term.

  10. Won't it be a hassle for copyright holders to have to pay this renewal fee?

    It need not be. If a copyright holder is making money from his or her copyright, then he or she is already paying a tax. The IRS could simply add a form to the packet that would allow the copyright owner to itemize the copyrights for which the renewal fee is being paid. For large companies holding many copyrights, of course this could be a hassle--unless the government thought creatively about ways to simplify the burden. We'd be happy to identify the coders who could produce a simple system for one-click renewal fee payments.

  11. Doesn't this proposal conflict with our obligations under the Berne treaty?

    Not when limited to works created in the United States. The Berne Convention prohibits the requirement of "formalities" in order for a creator to enjoy and exercise their creative rights. However the terms only bar the imposition of formalities on foreign authors. Domestic "formalities"--like this tiny renewal fee--are not prohibited in the nation of origin. Countries that agree to the Berne Convention remain free to control the existence or exercise of creative rights as a matter of domestic law. Nations are free to tailor their copyright law with respect to their own authors.

  12. Would this proposal "burden the poor"?

    Every fee is a burden, no doubt. And every fee should be as low as possible for both efficiency and fairness reasons. But it is hard to see how this renewal fee would burden the poor. This renewal fee would only apply to people either receiving income from copyrighted works, or who want to keep the copyright of a work that is no longer earning income. An alternative to lessen the burden on the first class might be a credit for any taxes paid (so you could deduct the income tax paid on a royalty from the Public Domain Enhancement Act renewal fee). And the solution to lessen the burden on the second class would be to keep the renewal fee low.

  13. But what about copyrighted works that duly have their renewal fee paid after 50 years? When will they enter the public domain?

    When Congress chooses. As Jack Valenti said, summarizing the Supreme Court opinion in Eldred, Congress has an "absolute right" to choose whether and when copyrights expire. Congress has chosen 95 years for corporate work, giving copyright owners, as Justice Breyer showed, at least 99.8% of the value of a perpetual term. We'll see if Congress lets the terms of copyrighted works expire in 2019..

  14. What about bulk registration for charitable organizations or other large copyright repositories? Shouldn't there be some sort of searchable, online registry of the public domain?

    We think the easier it is to pay the renewal fee, the better. As we mentioned above, we can help identify the coders who can make one-click payments fast and easy. These same people can help with bulk payment software to help charitable or corporate copyright holders.

    If while we're creating this easy renewal fee application we can simultaneously encourage people to become part of a project to digitally catalogue all of the works currently in the public domain, we will have hit the jackpot. It can be just as easy. Those works for which their renewal fee has been paid go into a directory of still-copyrighted works, and shift over to the public domain directory when their copyright expires.

    The rest of the public domain catalogue could be a project to which the government contributes, or a voluntary network of interested parties, or both. We'd love to hear your feedback on the best way to order a registry of the public domain.

  15. Why limit this to "published" works?

    Copyright reaches both published and unpublished works. It protects unpublished works primarily for reasons of privacy. There's no good reason to force people to take affirmative steps to protect work they have not published to others. So this proposal would only apply to work that people initially intended to make available publicly. The alternative (50 years after creation) creates very difficult problems of timing. I can know without asking you when a work was published. I can't easily know when the work was created.