The Public Domain Enhancement ActHow I Lost the Big One
March 02, 2004
In this article adapted from his upcoming book, Eldred v. Ashcroft lead counsel Larry Lessig explains how the decision how to argue Eldred was made, and what he believes went wrong.
In the lines quoted below, he explains how the commercial life of a work ends, and why digital technologies can give these works new life, if only the works entered the public domain or people could find their original authors to get permission.
Of all the creative work produced by humans anywhere, a tiny fraction has continuing commercial value. For that tiny fraction, the copyright is a crucially important legal device. But even for that tiny fraction, the actual time during which the creative work has a commercial life is extremely short. Most books go out of print within one year. The same is true of music and film. Commercial culture is sharklike. It must keep moving. And when a creative work falls out of favor with the commercial distributors, the commercial life ends. Copyrights in this context do no good.
Yet for most of our history, they also did little harm. When a work ended its commercial life, there was no copyright-related use that would be inhibited by an exclusive right. When a book went out of print, you could not buy it from a publisher. But you could still buy it from a used bookstore, and when a used bookstore sells it, at least in the United States, there is no need to pay the copyright owner anything. Thus, the ordinary use of a book after its commercial life ended was a use that was independent of copyright law. The same was effectively true of film. Because the costs of restoring a film—the real economic costs, not the attorneys' fees—were so high, it was never at all feasible to preserve or restore film.
Digital technologies have changed that. It is now possible to preserve and offer access to all sorts of knowledge. Digital technologies give new life to copyrighted material after it passes out of its commercial life.
And now copyright law does get in the way. Every step of producing this digital archive of our culture infringes on the exclusive right of copyright. To digitize a book is to copy it. To do that requires permission of the copyright owner. The same holds for music, film, and every other artifact of our culture protected by copyright. The effort to make these things available to history, or to researchers, or to those who just want to explore is now inhibited by a set of rules that were written for a radically different context.
This is what the 50 year maintenance fee we've proposed is all about-- It will allow digital technology users to cheaply get permission to use older works from creators, and to use works creators no longer choose to protect to make our culture available to our future.
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