Immortality Upon Death

by Laurence Garfield

The claimed purpose of copyright is to encourage the progress of science and the useful arts [7]. To that end, artists and authors are granted provisional monopolies on the distribution of their creations, so that they may exact financial benefit from those that receive it. That is, it creates an artificial environment in which one can "sell" information.

The system itself is reasonably sound. By inducing a market for information before it falls to the public domain, it creates an environment in which authors are able to profit from the distribution of their work, and thereby encourages them to create more information so that they may gain greater profit.

However, there is a point at which the cost of distribution becomes too great compared to the likely financial benefit. There could be many reasons for a market to "dry up" in that fashion. The market could be saturated, that is, the demand for copies of the work has fallen as most of those who wish copies have one. (Information, it should be remembered, is not a consumable good.) It could be that the cost of producing the media upon which the work is affixed has increased. In either case, the work has ceased to be financially valuable to the copyright holder. Or it could be that the copyright holder, for whatever reason, has simply decided he does not wish to continue to distribute the work. Whether it be due to a decrease in marginal benefit, an increase in marginal cost, or a change of heart of the copyright holder, copyrighted works often cease to be available through official channels prior to the expiration of the copyright term.

The terminology for such a condition varies with the type of work. For books and movies, the work is said to be "out of print." In software, such programs are often referred to as "abandonware." Whatever the market, such works can be collectively considered "dead," because their copyright holder has decided to terminate their authorized distribution.

We can therefore define a "dead work" to be any copyrighted work for which the copyright holder has, for whatever reason, chosen to completely or effectively cease the authorized for-profit distribution of the work reserved to him by the copyright act after having done so for some period of time.

Dead works are in fact quite common, especially with the century-plus term of modern copyrights. Using the willingness of the copyright holder to publish the work for profit as a standard of value, less than two percent of the copyrighted work from the mid to late 1920s, the oldest works covered by modern copyright, still has "value." [6]. The other 98% of the work protected under copyright has been declared valueless to the copyright holder, by virtue of his unwillingness to exact profit from it. While the percentage of work still available through commercial channels is likely higher for more recent works, there is still a substantial portion of copyrighted work that is simply not available through any legal means.

However, just because a given work may not have direct financial benefit to its copyright holder by means of distribution does not mean that the work itself is entirely valueless. An integral part of copyright is that works eventually become part of the public domain, because it is understood that works in the public domain have a value to the entire society. That value is multifaceted. It can serve as a historical and cultural archive of the society and its history. It can serve as the inspiration for the creation of new works (including "derivative works"). It can be made available to those who would not have access to it otherwise due to cost restrictions (recalling that the underlying assumption of copyright is that "more information is a good thing," and the more people have information the more good a thing it is). In any case, while a work may be considered "dead," it does not necessarily follow that the work is valueless.

So works that are still under copyright but which the copyright holder has chosen for financial reasons to no longer distribute are of greater value and better promote the progress of science and the useful arts if unrestricted.

There are other reasons why a work may become a dead work beyond decreasing returns. The author may simply wish for whatever reason to keep such information from public knowledge. A large quantity of copyrighted information from the late 1930s and 1940s is still protected under copyright, yet is not publicly available. Most of these works are copyrighted by large movie studios (including Disney and TimeWarner), and was produced in the United States during World War II as pro-war propaganda films. Such works include both live action and animated works, short and long, that are by today's standards highly racist and offensive, especially towards individuals of Asian descent. [15]

The copyright holders of said works have opted to keep said works sealed and not re-release them in more modern formats, or even in older formats, because to associate the Warner Brothers name and brand image with a children's cartoon entitled "Bugs Bunny Nips the Nips" (an actual title of one of the few such works that is available) could be quite controversial and damaging to the company's chosen corporate image. [15] Many such works are stored on older celluloid technology, and the film itself is quite literally rotting away in vaults. Given current copyright lengths, and the habitual extension thereof by Congress in recent decades, by the time said works are available in the public domain there will literally be no work left.

However, the question must be asked if such use of copyright protection does indeed "promote the progress of science and the useful arts," and if not, what the cost is to the society and the public domain for such works to be extinguished.

First, the progress of information and innovation is aided by the flow of information. Virtually all creative or scientific works are to some degree based on previous creative or scientific works. A reduction in the amount of information that can be used to create new works, whether through for-profit or public domain means, is, therefore, detrimental to the progress of science and the useful arts.

Second, the purpose of having copyright be limited term is to ensure that there is a rich public domain, once the copyright has expired. If the work ceases to exist, then it does not fall into the public domain, and the public domain is thus reduced. Additionally, while works such as those cited above may be embarrassing to one company, they are still a part (pleasant or no) of the society's cultural history and heritage and for them to be lost is a disservice to both the society and future historians.

So works that are still under copyright but which the copyright holder has chosen for non-financial reasons to no longer distribute are of greater value and better promote the progress of science and the useful arts if unrestricted.

In both the financially-based and non-financially-based cases, the copyright holder has chosen to not exercise his exclusive distribution rights granted by copyright. Therefore, he is deriving no profit from it, and therefore no incentive to create additional works. For others to distribute the work, then, in no way reduces the copyright holder's potential or actual recompense from the works, as the recompense is already zero by virtue of the copyright holder's own actions. However, as previously shown, there is a benefit to society and to the progress of the sciences and useful arts by allowing said works to be distributed.

Thus, we can see that a dead work, as previously defined, does not promote the progress of science and the useful arts by remaining under exclusive restriction but does promote the progress of science and the useful arts by ceasing to be under exclusive restriction. Therefore, the copyright system, if it is indeed to serve the purpose of promoting the progress of science and the useful arts, must allow for that circumstance.

To that end, copyright should be amended to include a "use it or lose it" clause. Such a clause would establish the following conditions:

If the copyright holder of a work, having distributed said work to receiving parties, choses for whatever reason to cease distribution of said work to any parties for X period of time, all parties having already received said work shall not be restricted from redistributing for non-commercial purposes to any other party in any form, including as derivative works, and all parties receiving the work in such a manner shall similarly not be restricted. Should the copyright holder cease to distribute said work to any parties for Y period of time, all parties having already received said work shall not be restricted in any way whatsoever from redistributing the work to any other party in any form, including derivative works.

The purpose of the non-commercial restriction in the first sentence is to account for the fact that dead works are sometimes "resurrected," and brought back into circulation for commercial purposes by the copyright holder. There are many possible reasons for such a change, including market forces, new distribution mechanisms, and so forth. Whatever the reason, it is beneficial to the copyright holder to be able to take advantage of new circumstances. However, such circumstances are not always forthcoming, and in such a case the public domain should not be deprived of the work that the author has deemed not worth distributing himself, thus the two-stage time period.

Naturally there are details that must be considered in greater depth before such a policy can be implemented, specifically the precise terms of time periods X and Y, and exactly what actions or inactions should qualify as "cease distribution." The former is dependent on the length of copyright's term, and is beyond the scope of this document. The latter is dependent on the type of copyrighted work. On that, only a few words will be included here.

Some copyrighted works are distributed in their "editable" form. That is, the work as distributed is already in the format best suited to redistribution and the creation of derivative works. The standard example is books and other texts, where the words are both the "editable" and "readable" format.

Other works are distributed in a "non-editable" form. That is, the editable form of the work used for its creation is necessarily converted into another "use" form prior to distribution. The best example would be software, which is typically "compiled" from source code into computer code. The source code form is clearly the form intended for editing, while the computer code version is, in most cases, extremely difficult if not impossible to reliably decipher back into an editable form.

In the case of works where the editable and use forms are the same, there is no difficulty. In the case of works where the editable and use forms are not the same, however, there exists a problem because the use form is generally the only form distributed by the copyright holder, but the editable form is the one required for the creation of derivative works, which would be permitted by the above amendments to copyright.

However, the same problem exists with works that expire normally into the public domain. When a work that has been distributed only in use form and not in editable form enters the public domain, it is still essentially useless without the editable form. The copyright holder is then, under current law, under no obligation to release the editable form of the work, thus keeping the work out of the public domain in perpetuity in any practical sense. That problem exists regardless of whether the work has become part of the public domain due to the expiration of the copyright term or due to the proposed changes above.

There are multiple possible solutions to the problem. Firstly, distribution of a copyrighted work could require the inclusion of the editable form, if the editable form should be different than the use form. Secondly, once a work has been declared "dead" the copyright holder could be compelled to release the editable form upon request. Thirdly, the copyright holder could be compelled to deposit a copy of the editable form of the work with an escrow agent, most likely the copyright office, in order to receive a copyright for said work, and the escrow agent would then issue copies of the editable form upon request.

The first method, while implementable and in fact the most consistent with other types of works, would meet with considerable resistance. The second method is impractical, as it requires the copyright holder to maintain a copy of the editable form of the work and a system for providing it upon request, even after the copyright holder has made it clear that the work is without value to him, or after the work has passed into the public domain and there is no copyright holder in the first place.

The third method, that of deposit with the copyright office, is in fact the system used from the inception of copyright in the United States through the Copyright Act of 1976. That act, for the first time, established "automatic copyright" on works and removed the requirement for the registration of a work in order to receive copyright protection. That policy is inconsistent and unmaintainable, not only with these proposed alterations to copyright but with the very nature of any work that has different editable and use forms and will someday pass into the public domain. In order to implement the proposed changes, as well as to protect the public domain even under the present system, that change should be reversed, and both registration and deposit of copyrighted works must be required of potential copyright holders.

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