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HR 2601 IH

To amend title 17, United States Code, to allow abandoned copyrighted works to enter the public domain after 50 years.

June 25, 2003

Ms. LOFGREN (for herself and Mr. DOOLITTLE) introduced the following bill; which was referred to the Committee on the Judiciary

To amend title 17, United States Code, to allow abandoned copyrighted works to enter the public domain after 50 years.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the `Public Domain Enhancement Act'.

SEC. 2. FINDINGS.

The Congress makes the following findings:

(1) The copyright clause, as set forth in article I, section 8 of the United States Constitution, grants Congress the power to `promote the Progress of Science and useful Arts, by securing for limited Times to Authors . . . the exclusive Right to their respective Writings . . .'.

(2) The copyright clause serves two purposes. First, it gives authors an economic incentive to create new works. `By establishing a marketable right to the use of one's expression, copyright supplies the economic incentive to create and disseminate ideas.' Harper & Row Publications, Inc. v. Nation Enters., 471 U.S. 539, 558 (1985). Second, it promotes society's interest in the `free flow of ideas, information and commerce.' Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984). `The copyright term is limited so that the public will not be permanently deprived of the fruits of an artist's labors.' Stewart v. Abend, 495 U.S. 207, 228 (1990).

(3) Both commercial and noncommercial creators depend on a healthy public domain. For example, book publishers print titles from the public domain and make them available to the public at reduced prices. See Edward Rappaport, CRS Report for Congress, Copyright Term Extension: Estimating the Economic Values, 3 (May 11, 1998). Others depend on the public domain as a source of raw material for new productions, such as a movie based on an old book or a theme song based on old musical arrangements. Id. Schools, museums, and libraries use works in the public domain to create pictorial and textual materials for educational and cultural purposes. Id. at 4. In addition, media sources like the World Wide Web benefit from the freedom of public domain content, such as historical materials placed on the Web by the Library of Congress. Id.

(4) Current law continues to grant copyright protection to works published as early as 1923. See 17 U.S.C. 304. Yet the vast majority of older works are no longer commercially available. One study indicates that only 2 percent of works between 55 and 75 years old continue to retain commercial value. Eldred v. Ashcroft, 123 S. Ct. 769, 804 (2003) (Breyer, J., dissenting). Nevertheless, under current law, these abandoned works will not enter the public domain for many years. This prevents commercial and noncommercial entities from building upon, cultivating, and preserving abandoned works. Indeed, while older works are less likely to retain commercial value, they are more likely to `prove useful to the historian, artist, or teacher.' Eldred v. Ashcroft, 123 S. Ct. 769, 805 (2003) (Breyer, J., dissenting).

(5) Thus, the existing copyright system functions contrary to the intent of the Framers of the Constitution in adopting the copyright clause and the intent of Congress in enacting the Copyright Act. Neither is intended to deprive the public of works when there is no commercial or copyright purpose behind their continued protection. It is, therefore, necessary to establish a mechanism by which abandoned American copyrights can enter the public domain.

SEC. 3. MAINTENANCE FEE FOR PUBLISHED UNITED STATES WORKS.

(a) DEFINITION OF UNITED STATES WORK- The definition of `United States work' contained in section 101 of title 17, United States Code, is amended by striking `For purposes of section 411' and inserting `For purposes of sections 306 and 411'.

(b) DURATION OF COPYRIGHT-

(1) WORKS CREATED ON OR AFTER JANUARY 1, 1978- Section 302 of title 17, United States Code, is amended--

(A) in subsection (a), by striking `Copyright' and inserting `Subject to section 306, copyright';

(B) in subsection (b), by striking `In' and inserting `Subject to section 306, in'; and

(C) in subsection (c), in the first sentence, by striking `In' and inserting `Subject to section 306, in'.

(2) WORKS CREATED BUT NOT PUBLISHED OR COPYRIGHTED BEFORE JANUARY 1, 1978- Section 303(a) of title 17, United States Code, is amended--

(A) by striking `Copyright' and inserting `Subject to section 306, copyright';

(B) by striking `. In no case, however,' and inserting `; except that, subject to section 306, in no case'; and

(C) by striking `and, if' and inserting `and, subject to section 306, if'.

(3) SUBSISTING COPYRIGHTS- Section 304 of title 17, United States Code, is amended--

(A) in subsection (a)--

(i) in paragraph (1)--

(I) in subparagraph (B), by striking `In' and inserting `Subject to section 306, in'; and

(II) in subparagraph (C), by striking `In' and inserting `Subject to section 306, in'; and

(ii) in paragraph (2)--

(I) in subparagraph (A), by inserting `other than a copyright that expires under section 306,' after `(1)(B) of this subsection,'; and

(II) in subparagraph (B), by inserting `other than a copyright that expires under section 306,' after `(1)(C) of this subsection,'; and

(B) in subsection (b), by striking `Any' and inserting `Subject to section 306, any'.

(c) MAINTENANCE FEE-

(1) IN GENERAL- Chapter 3 of title 17, United States Code, is amended by inserting after section 305 the following new section:

`Sec. 306. Maintenance fee for published United States works

`(a) FEE- The Register of Copyrights shall charge a fee of $1 for maintaining in force the copyright in any published United States work. The fee shall be due 50 years after the date of first publication or on December 31, 2004, whichever occurs later, and every 10 years thereafter until the end of the copyright term. Unless payment of the applicable maintenance fee is received in the Copyright Office on or before the date the fee is due or within a grace period of 6 months thereafter, the copyright shall expire as of the end of that grace period.

`(b) ANCILLARY AND PROMOTIONAL WORKS- If the copyright in a work is maintained in force under subsection (a), then any ancillary or promotional work used in connection with the work so maintained, such as an advertisement for a motion picture, shall be deemed also to be maintained in force under subsection (a).

`(c) FORM- The maintenance fee required by subsection (a) shall be accompanied by a form prescribed by the Register of Copyrights that conforms with section 409. The form may be used to satisfy the registration provisions of sections 408 and 409, if it is accompanied by the prescribed deposit and fee, and by any additional identifying material that the Register may, by regulation, require.'.

(2) CONFORMING AMENDMENT- The table of sections for chapter 3 of title 17, United States Code, is amended by adding at the end the following:

`306. Maintenance fee for published United States works.'.

(d) COPYRIGHT OFFICE FEES- Section 708(a) of title 17, United States Code, is amended--

(1) in paragraph (8), by striking `and' after the semicolon;

(2) in paragraph (9), by striking the period and inserting `; and'; and

(3) by adding after paragraph (9) the following:

`(10) the maintenance fee under section 306.'.

SEC. 4. DUTIES OF REGISTER.

Not later than 12 months after the date of the enactment of this Act, the Register of Copyrights shall--

(1) establish procedures to minimize the burden of submitting the form prescribed under section 306(c) of title 17, United States Code, including procedures to allow the electronic submission of the form to the Copyright Office; and

(2) establish procedures to make the information contained in forms submitted under section 306(c) of such title easily accessible to the public.

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