Copyright Renewal Fees
posted by Gerard Magliocca
Given the recent tussles over copyright policy, I want to endorse an idea put forward by Larry Lessig and others–copyright renewal fees. To retain a patent, a firm has to pay a fee to the Patent Office every couple of years. In my article on patent trolls, I called for a significant increase in those fees to make it more costly to hold dormant patents, which would encourage people to either use them or abandon them.
The same principle could be applied to copyrights that are registered (which obviously does not cover all copyrighted material). Say you charged $50 every two years to renew a copyright registration and said that once something was registered you have to keep it registered to maintain your rights. Many copyrights would not be renewed, either because the owners would not think it worthwhile or because there would be nobody to pay the fee for an orphan work. So in addition to raising some revenue, material would enter the public domain more quickly and difficulties created by unclear title would be resolved in favor of free access.
Now I know some people will argue that this violates the Berne Convention, but I doubt that it does. Would it create some inconsistency between our copyright law and European copyrights? Yes. But a harmonized system that is poorly structured is not, in this instance, superior to a diverse one with better policies here.
January 25, 2012 at 8:52 am
Posted in: Intellectual Property
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Responses (3)
Derek Bambauer - January 25, 2012 at 4:33 pm
Could you explain further how this doesn’t violate Berne’s prohibition on formalities? Thanks!
Gerard Magliocca - January 25, 2012 at 5:21 pm
Well, I think that if you allow people to have copyright protection without registering, that’s enough. In effect, you have copyright and “copyright plus,” with the latter requiring renewal fees to pay for special privileges.
TJ - January 25, 2012 at 10:46 pm
Why wouldn’t it just become a disincentive to registering in the first place? That is, my intuitive response would be to not register my copyright until I have an infringer to sue, and if the work proves valuable enough that I am going to sue someone (with all the attendant costs that make renewal fees, even relatively high ones, a rounding error), then obviously I will keep renewing that copyright after I have that information. Same question for patents–it seems the primary result of taking your suggestion to increase maintenance fees to exorbitant levels would be to increase the number of submarine patents.
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