(Still working on test prep.)

What major changes to copyright’s basic structure would you recommend and why?

As an academic who studies the commons and who watches countless colleagues wrestle with copyright issues, I’m most concerned with orphaned works. This is, of course, intertwined with duration, which is something I’m conflicted about. Eldred seriously began the debate about our current duration periods, and life plus 70 years is, from the perspective of a commons scholar or advocate, an absurd period of time. A return to the 1790 term of 14 years with the possibility of a 14-year renewal is commonly advocated by copyleft activists. I myself have argued for it in seminars. However, it recently occurred to me that this argument fails to account for the fact that the average lifespan in the 18th century was around 37 years, which meant that if you produced a copyrightable work when you were twenty, the copyright could potentially outlive you. One might reasonably argue that the founders created such a limit to ensure that if the copyright holder produced a profitable work and was scrupulous about filing for renewal, he would be potentially set for life. Shouldn’t today’s copyright holders enjoy similar security? If you truly produce a popular, heartbreaking work of staggering genius, shouldn’t you be able to live out the rest of your days comfortably? Perhaps, then, a term that lasts for the life of the author might be appropriate today*.

While this would be an improvement over current duration periods, it still slows the flow of works to the commons. This is where orphaned works become vital. Simply: Why bother to protect works that aren’t available, salable, or even claimed by their creators? Such works would previously have fallen into the public domain due to failure to renew their copyright, but the Berne Convention removed formalities from the American copyright landscape. Kahle argues that this removal of formalities has been detrimental to the public domain. The plantiff argues that 85% of protected works would never have been renewed when their term expired and yet are afforded protection under BCIA duration. The suit asks that out of print (�orphaned�) materials be returned to the public domain and that the registration formality be reinstated. This change would greatly enrich the public domain, making a wealth of material available for study and restoring some sense of balance in the wake of the Bono Act. The opening brief for Kahle was filed a week ago, so we shall see.

* I’m not saying that we should ditch notions about shorter terms, but I do think that sometimes adequate compensation for creators gets lost in copyfight discourse.
**It’s worth noting that both of these arguments are particularly American, since they fail to take into account European concerns about moral rights or IP problems faced by developing economies who are trying to build their own creative wealth while complying with Berne and TRIPS.