[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[H.R. 2408 Introduced in House (IH)]






109th CONGRESS
  1st Session
                                H. R. 2408

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


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                              May 17, 2005

     Ms. Zoe Lofgren of California (for herself and Mr. Doolittle) 
 introduced the following bill; which was referred to the Committee on 
                             the Judiciary

_______________________________________________________________________

                                 A BILL


 
 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, 2006, 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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