Improve the Copyright System by Adding Patent-like Maintenance Fees

by Stephan Kinsella on April 17, 2014

I’ve discussed in the past various ways the patent and copyright (and trademark) systems could be improved.¹ These suggestions include drastically reducing the patent and copyright terms, getting rid of patent injunctions, make the losing copyright/patent plaintiff pay the defendant’s costs, and, for copyright, “Require active registration and periodic re-registration (for a modest fee) and copyright notice to maintain copyright.” (The problem with the latter is that it arguably violates US treaty obligations under the Berne Convention; so, of course, the US should withdraw from the Berne.)²

The copyright re-registration/fee suggestion is already in place for patents. The term of a normal utility patent is from the date of issuance, to 20 years from the date of original filing, or about 17 years if it takes about 3 years for the patent to issue. The patent expires at the end of this term, unless it is abandoned before that time. The patentee can expressly abandon it (unlike in the case of copyright, which is almost impossible to get rid of)³ But it will also be abandoned for failure to pay a periodic “maintenance fee.” Once the patent issues, a maintenance fee must be paid every 3.5 years; this fee rises exponentially, so that at 3.5 years, it’s $1600, then $3600 at 7 years, and $7400 at 11.5 years (the fees are half that for “small entities,” and one-fourth that amount for “micro-entities”). This helps to clear out some of the patents out there which are not being “used”. The abandoned patents are listed in a notice every week in the Official Gazette of the USPTO (example: Notice of Expiration of Patents Due to Failure to Pay Maintenance Fee).

Now it is true that the US patent system distorts the economy and technology, reduces innovation, and imposes costs north of $100 billion per year. But despite this ginormous cost, at least the patent term is only 17 or so years; maintenance fees are required; significant costs must be incurred to obtain a patent; and it must be actively applied for. Otherwise: no patent. And you can abandon a patent if you want to. Copyright protection lasts usually over 100 years; it is automatic (no active registration is required); no maintenance fees or re-registration is required; it cannot be gotten rid of even by the author; and in addition to economic costs and cultural distortion, it serves as the basis for an increase in police-state surveillance and control of the Internet.⁴

Did I say we should improve the copyright system by adding a registration and periodic renewal fee requirement? Sorry, I misspoke. I meant to say “abolish the evil copyright system.”