“such enjoyment and such exercise shall be independent of the existence of protection in the country of origin of the work”

This is relevant because the supporters of the MIckey Mouse Law claim that they need to harmonize with EU copyright terms of author life + 70 years because otherwise, the EU would “deny this longer term to the works of any non-EU country whose laws did not secure the same extended term” [2]

Wouldn’t it be against Berne Convention for the EU to “deny” protection according to the origin of the work?
If the EU does not respect Art. 5 (2), then the USA should also not comply. Therefore, it would be beneficial to have formalities in order to avoid copyrighted orphan works (not necessarily a tax).

[1] http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html#P109_16834
[2] http://www.law.cornell.edu/supct/html/01-618.ZS.html

The mere possibility of a suit has a massive chilling effect.

2. Use-it-or-lose-it is the *best* option. No copyright holder could claim that copyright was established to allow them to suppress works (the Constitution denies that), so it would be very hard to argue against.

The law should state that if a work remains generally unavailable (e.g. out of print) for (say) five consecutive years, it loses copyright protection and rises into the public domain. That is obviously not a formality. If a work was available to order on a copy-by-copy basis from the copyright holder directly via his or her website (for a reasonable amount, of course. $1000/page would be unreasonable), that should qualify as generally available.

This achieves the primary goal of restoring the thousands of abandoned, suppressed works to the public.

3. According to Rainer Brockerhoof, Spider Robinson thinks that his descendants “deserve” to profit from his works for a century. Why? Why should the children of authors get a free ride from copyright profits for their whole lives? The original life+X system in Europe was designed to cover the life of the author and the *minority* of his/her children, until they grew up — not for their whole lives. If the author saves money made during his lifetime, he still has an inheritance to give them. And most importantly, under the *US* justification for copyright, it must ‘promote the progress of science’. Do the years *beyond* life+50 really give authors a significant incentive to create more works? The economic analysis says no.

My reaction to your op-ed proposal was similar to that of Neil Sluman above. Unlike Neil, I like your proposal as far as it goes, but like Neil I would propose in addition a publication requirement — a use-it-or-lose-it provision — if such a provision could be constructed without running afoul of Berne. As John Mark Ockerbloom points out, compulsory licenses rather than loss of copyright registration might be a good work-around. My premise is that the next best thing to having works in the public domain is to have them readily available in the marketplace. Accordingly, some of these notions resemble your Commons mechanism, but applied outside the context of the public domain.

Suppose that after some point in the life of a copyright, say 50 years (say 10 if you think we could persuade Congress!), the owner is required not to let publication lapse for more than some reasonable amount of time — say five years. If the owner prefers not to fund the publication, it deposits the work with a repository that posts the material on the net and charges a compulsory license for access.

The repository, which could be part of the Copyright Office, or a private entity licensed by the government, takes a cut to fund itself (and maybe the board that sets the compulsory licenses) and remits the difference to the copyright owner. The owner gets to control presentation, attribution and notice. Those who would like to commercially exploit a work in the repository could always contact the owner through the repository. The owner can have the work removed from repository by conventional publication elsewhere. Thus, an owner would be incented to put its work in the marketplace even if its worth is perceived as low.

If the owner fails to post to the repository within five years of last publication after the 50 (or 10!) year point, anyone may freely post the work to the repository. Users would still pay the compulsory license, which would sit in a fund until claimed by the owner. (Interest on that fund could also help fund the endeavor.) Owner can only claim its license fee by posting to the repository, or publishing, and providing notice.

Once the copyright on a work expires, the work could be routed directly to your commons or something like it, to help promote a vibrant public domain. (Links could also be added to promote a dedication to the public domain before the expiry of the copyright term.)

For the owner that exploits its work diligently, nothing changes. For the derelict owner, an eminently fair bargain. For the public, many more works available in the marketplace, and some marginal improvement of the public domain as well.

This proposal would help restore the bargain in the copyright clause without actually reducing the term of copyright. It would recognize that publication is a comparatively trivial burden now (unlike in 1789), and a small one to exact in exchange for the government-granted monopoly of a copyright — the justification for which has always been to make more works available to the public. Finally, it would be difficult for an opponent to justify its opposition, when all it has to do to avoid this system is exploit its copyright diligently.

Sorry for the length, but I’ve been giving this a lot of thought since the decision. Thanks for providing this forum and thanks again for your hard work and that of the rest of your team.

We tax real property now. In Virginia (and other states, too, I think) personal property is taxed. We tax at least realized capital gains on investment property. Why not tax intellectual property-all intellectual property? With escheat to the Government (thence to the public domain) on non-payment, as with real property taxes.

Ad valorem of course. Which probably amounts to a near exemption for self-publication.

Patents, too.

There might be some problem valuing IP, but there are equivalent problems valuing land in low-demand locations, which doesn’t derail real property taxation.

I don’t think this violates Berne. This isn’t an obstacle to acquiring copyright. You still acquire copyright by default. You would simply have to declare what copyrights you’ve acquired in a tax return, and pay taxes on them. That European Union countries impose income taxes is not regarded as infringing on their treaty obligations to permit free mobility of labor between them.

I like your bigger tax proposal.

I have made a similar one here in the “doc’s diagnoses” blog entry comments: http://cyberlaw.stanford.edu/mt/mt-comments.cgi?entry_id=889
and elsewhere but with the option that anyone at any time may pay the self-assessed value to the rights holder and the work is immediately put into the public domain. Then essentially the value being self-assessed is the worth to the rights holder of the work being kept out of the public domain. The rights holder would then pay a 3% or so tax annually on this self assessed amount (for each country using this process — a nice revenue stream for developing countries, who otherwise mainly just lose out from enforcing broad copyrights).

It’s important to recognize the new justification for taxing copyrights now that the Supreme Court have effectively said they can be perpetual. Perpetual copyrights break the historic copyright bargain that the public is paid for the external costs of the copyright monopoly by having the work in a short time enter the Public Domain. These external costs include courts, police, prisons for those who share, the information superhighway, researching rights holders, negotiations, chilling effect, deprival, etc. I feel the period for non-payment of taxes should be one year or less before the work enters the public domain.

Note that an implicit issue is distinguishing between economic rights to benefit from distribution and “moral rights” such as in European copyright law regarding creative control of works. Without explicit moral rights, in the U.S. it seems authors expect the economic control of their work to be what gives them moral leverage. It might be worth distinguishing these — that is, authors might retain some moral rights over original works whether in the PD or not (such as rights of attribution).

I think that a much more agressive tax on copyright might have a better chance of passing than a small one because it might bring in real revenue to balance th U.S. budget. Also, it may be more succesful to get such an approach passed first in a country that has not subscribed to the Berne convention, or alternatively to have all Berne convention signers agree to implement it together.

So, if the believers in “intellectual property” are to be consistent, it is certainly
reasonable that “intellectual property” be taxed, just as physical property is.

The only hard part is valuating the “property”.

So, why not allow the owner of the “property” to self-declare its worth, with the
following provisos. 1) Compulsory sale — if anyone offers 200% of the registered
value, the property is put up for auction, and the highest bidder receives it. High bidder
cannot reduce the properties valuation for 5 years. Original owner receives the full
200% value. 2) non-payment of taxes — if taxes remain unpaid for some number of
years, say five, the property reverts to the public domain. 3) a copyright holder can
avoid paying taxes at anytime, by valuing the “property” at zero. He continues to own
the copyright, but may not collect anything beyond treble damages.