A Simple Solution To Today’s Onerous, Lopsided Copyright, Trademark and Patent Law

I’m in a creative business, so I’ve always been concerned about protecting my creations with copyright, etc. But as a consumer and a citizen, the overreaching, exceedingly long copyright, trademark and patent restrictions seriously concerns me.

So I’ve come up with a solution that balances copyright, trademark, and patent law, commercial interests, and the need for information to become freely available over time. And it might help the deficit too.

My solution would be easy to implement and should be agreeable to both business and citizenry equally. Instead of blatant corporatism, such as the Sonny Bono copyright extension, which catered to business interests (i.e., Walt Disney), trying to protect soon-to-expire copyrights, I seek to reestablish the balance of copyright holder needs versus the benefits of items becoming public domain. Copyright, trademarks, and patents were never intended to be eternal - and at a certain point, they become a detriment to innovation and the public interest - a fact that seems to elude our politicians.

The current state of affairs enacted to retroactively protect valuable business interests had the unintended consequence of also walling off other less valuable or no-value content that otherwise would have become public domain. My solution would solve this by accommodating corporations with valuable assets they desire to protect, while challenging those with worthless copyrights to allow them to expire. And the great motivator - money.

My solution: Charge an initial filing fee (like today) and then charge a yearly fee that continues to increase by multiples yearly.

By allowing individuals or corporations to pay increasing fees to maintain a copyright, patent, or trademark on a yearly basis, only items with value will continue to be worth protecting. So, Disney gets to continually protect Mickey Mouse (though I still don’t intend it to be limitless) but other less valuable copyrights will be allowed to expire. And, since companies and people are paying yearly to protect their interests proportional to their value - the government will earn some money too.

Think of it this way. Mickey Mouse’s original trademark/copyright stems from 1928. Had it not been for the Sonny Bono act, it would have become public domain. Obviously detrimental to Disney - but under my scenario - Disney’s interest would be protected - but with a benefit to the citizenry too. Since the older Mickey Mouse mark would be costly to protect yearly.  If we use a simple formula, that every year the cost increases by a factor of 1.2 of the prior year’s cost - in 2011, Disney would have to pay $367,314,878.00*. This is based off of a year one fee of $500. Year two $600. Year three $720, etc. This incrementally increasingly fee would incent companies to only protect their most valuable trademarks and copyrights - since it would be exceedingly expensive to protect everything. Hence, lesser properties would become public domain.

Sure, some would argue that corporations would simply pass the costs onto consumers, but eventually, capitalism would win out. People would eventually vote with their wallets and corporations would not be able to pass on the costs. And eventually they’d let non-valuable assets expire.

That’s it. Perhaps we’d still include a short 5-10 year period before the yearly expense starts - that’s reasonable. And we should still definitely set a maximum time period on copyrights, trademarks, and patents - limits are needed. But when individuals and companies need to weigh protecting less valuable items over the expense of protecting them - I believe they’d start to allow lesser items to enter the public domain. Encouraging affordable consumption of creative works and inspiring new derivative works. And the government would create a new income stream that balances the public need and corporate need. It’s a win win win if you ask me.


* EDIT 2/16/10: After discussing this with colleagues, it does appear an endlessly increasing fee is counter productive. So perhaps an upper yearly limit should be set, say a million or two million max. Once you reach this plateau you pay this yearly for each asset you wish to protect. It will still force you to choose which are the most valuable. For instance, in my Disney example, they might pay $1,000,000/year for Mickey, but also for Donald, Pluto, Goofy, etc. So they’d still eventually have to weigh the value of a protecting an item against the cost to protect it.

** EDIT 4/2/13: After reading my entry again, years later, it dawned on me...we should simply run the copyright, patent, and trademark service like we do the domain name registry. You pay yearly a fee for each item filed. It'd be insanely easy in our digital world. I'd still probably do a graduated fee over the course of decades. Maybe it's $50 per item and increases 50% each year. So year one would be $50, year two $75, then $112.50, and so on. The exact increments and time spans would need to be worked out. Yes, it'd eventually get ridiculously expensive to keep registering items unless they were profitable - but that's when the cost to benefit decision enters the fray. If it's worth it to keep paying then fine - but if not - then the public wins and it enters public domain.

Feb 12, 2010

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