Amendments: Copyright

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

As the constitution clearly states, the function of copyright is to incentivize the creation of new works. The purpose of copyright is not to help people or companies make money in itself; only to give them more reason to create additional new works. This is a good and valuable purpose.

I would argue that the present length of copyright is far past what actually incentivizes new work, and in fact disincentivizes it in many cases. Since much creative work is strongly based on older work, preventing works from entering public domain is damaging to the creative process. For a popular example, if Pride and Prejudice had never entered public domain, we would not now have Pride and Prejudice and Zombies.

(Reasonable people are welcome to disagree as to whether this would be a bad thing or not.)

Unfortunately, the Berne Convention makes any attempt to shorten copyright terms problematic. Naturally, a constitutional amendment can do whatever we want it to. I'm just pointing out that it's a broad issue. As such, I am not presently proposing an amendment relating to the length of copyright terms.

Regardless of copyright length, I most definitely hold that retroactive copyright extensions should never be allowed. If a work has been copyrighted for decades, and is about to enter public domain, it does not incentivize creation of new work for that copyright to be extended. Nor does it meet the clearly-stated criterion that copyrights be for limited times.

The present length of copyright terms extends well beyond the creator's lifetime, and probably the lifetime of all their children. The only purpose of retroactive extensions is to give money to people who never had anything to do with the creation of the copyrighted work. That is harmful to society in all cases, and is not a power government should have.

1) Copyrights exist for a fixed term, defined at issuance of that copyright. In no case shall a copyright term be retroactively lengthened.


I also hold that the penalties for copyright infringement are excessive and damaging to society. One can look at Capitol v. Thomas to see how extreme this gets. A woman illegally downloaded 24 songs for her personal consumption (not for profit, which is a whole different ballgame). She was fined nearly $10,000 per song! She would have been penalized far less for just shoplifting a CD, which would have done far more damage than downloading the songs. Punishment for breaking a just law is correct; beheading someone for jaywalking is not. This law is a total miscarriage of justice.

2) Statutory penalties for copyright infringement, where the party convicted of infringing did not profit, shall in no case exceed ten times the market value of the item infringed.

Another significant issue with copyright in the United States is orphan works. It is not necessary under current US law to register a work to have a copyright on it. But with no central registry, there's no guaranteed way to find the rights-holder if you want to license their work! This becomes even more complicated if the rights-holder was a company that no longer exists. There's no way for someone wanting to license an orphan work to do it legally. This discourages the creation of new work, which is the entire point of copyright.

So if we don't have a registry of copyrights, and we want a licensing process for orphan works, obviously some entity must stand for the interests of the absent rights-holder in negotiations. My suggestion would be for a court to determine the appropriate value of a license for the work, and for that court to hold any license fees paid. If the rights-holder becomes known, they get their money, and can renegotiate the license. If not, the work enters public domain.

3) In the event a copyright-holder can not be identified or located, a court shall set appropriate license fees, applicable for a fixed time. Should the rights-holder become known before that time, they shall receive all fees paid, and have all standard rights to re-negotiate the license at the end of the fixed term. If the rights-holder does not become known before the end of the license period, the work shall enter public domain.