Public Domain Enhancement Act

The Public Domain Enhancement Act (PDEA) (USBill|108|H.R.|2601 (108th Congress), USBill|109|H.R.|2408 (109th Congress)) was a bill in the United States Congress which, if passed, would have added a tax for copyrighted 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.

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 term, only on works first published within the United States (as charging it from foreigners would violate the Berne convention except in some interpretations of the Berne three-step test). Failure to pay the Copyright Office 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 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, 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, which, contrary to the constitutional intent of copyright, decreases the incentive to create derivative works, and prevents historians and artists from being able to exploit works that have been abandoned; meanwhile, if the owner cannot even be located, he or she is presumably gaining little benefit from exclusive use of the work. For works that are still in print, this is usually not a problem, but for works that no longer have commercial viability, there is typically not a clear record of whether the original creator transferred the rights, died, or in the case of a defunct corporation, 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 Lofgren (D-CA) and John T. Doolittle (R-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. More specifically, the Motion Picture Association of America (MPAA) and its lobbyists oppose it. As laid out in his book "Free Culture", Lawrence Lessig lists the reason for the MPAA opposition to the bill:

# Congress had already “firmly rejected the central concept in the proposed bill.” This, however, was before the internet became such a powerful tool for dissemination.
# The $1 fee would harm copyright owners.
# The extension fee would also lead to restoration work (though Lessig believes this would only be true for still commercially viable works, which is a very low percentage).
# Massive costs would result from the bill since the government would need to set up and fund a registration system.
# The MPAA also expressed concern about the effects of a story that underlies a currently copyrighted film moving into the public domain. (Of course it would be fine, since it would then be a derivative work.)
# The MPAA stated that the current law already allowed for that. Lessig contradicts this by pointing out that there are many people who aren’t even aware they own a copyright, let alone the right to sell it or give it away.

Proponents, however, have suggested that the real threat this poses to copyright holders is that a huge wave of previously unseen, unused, and forgotten works would spill into the public domain, free for anyone to tamper with. The PDEA would not compromise currently used copyrighted works like Mickey Mouse. Content that is being used, or even content whose owner is aware they ‘own’ it can be protected for a minimal fee. They suggest there is no reason to oppose it other than the fear of competition from the influx of new content. [ [http://www.free-culture.cc/freeculture.pdf Free Culture ] ]

References

ee also

*List of intellectual property legislation pending in the United States Congress
* "Eldred v. Ashcroft"
* Free Culture
* United States copyright law

External links

* [http://eldred.cc Eldred Act Web site]