I 

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.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Public Domain En5 hancement Act’’. 

6 SEC. 2. FINDINGS. 

7 The Congress makes the following findings: 

8 (1) The copyright clause, as set forth in article 

9 I, section 8 of the United States Constitution, 

10 grants Congress the power to ‘‘promote the Progress 
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1 of Science and useful Arts, by securing for limited 

2 Times to Authors . . . the exclusive Right to their 

3 respective Writings . . .’’. 

4 (2) The copyright clause serves two purposes. 

5 First, it gives authors an economic incentive to cre6 ate new works. ‘‘By establishing a marketable right 

7 to the use of one’s expression, copyright supplies the 

8 economic incentive to create and disseminate ideas.’’ 

9 Harper & Row Publications, Inc. v. Nation Enters., 

10 471 U.S. 539, 558 (1985). Second, it promotes soci11 ety’s interest in the ‘‘free flow of ideas, information 

12 and commerce.’’ Sony Corp. v. Universal City Stu13 dios, Inc., 464 U.S. 417, 429 (1984). ‘‘The copy14 right term is limited so that the public will not be 

15 permanently deprived of the fruits of an artist’s la16 bors.’’ Stewart v. Abend, 495 U.S. 207, 228 (1990). 

17 (3) Both commercial and noncommercial cre18 ators depend on a healthy public domain. For exam19 ple, book publishers print titles from the public do20 main and make them available to the public at re21 duced prices. See Edward Rappaport, CRS Report 

22 for Congress, Copyright Term Extension: Esti23 mating the Economic Values, 3 (May 11, 1998). 

24 Others depend on the public domain as a source of 

25 raw material for new productions, such as a movie 
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1 based on an old book or a theme song based on old 

2 musical arrangements. Id. Schools, museums, and li3 braries use works in the public domain to create pic4 torial and textual materials for educational and cul5 tural purposes. Id. at 4. In addition, media sources 

6 like the World Wide Web benefit from the freedom 

7 of public domain content, such as historical mate8 rials placed on the Web by the Library of Congress. 

9 Id. 

10 (4) Current law continues to grant copyright 

11 protection to works published as early as 1923. See 

12 17 U.S.C. 304. Yet the vast majority of older works 

13 are no longer commercially available. One study indi14 cates that only 2 percent of works between 55 and 

15 75 years old continue to retain commercial value. 

16 Eldred v. Ashcroft, 123 S. Ct. 769, 804 (2003) 

17 (Breyer, J., dissenting). Nevertheless, under current 

18 law, these abandoned works will not enter the public 

19 domain for many years. This prevents commercial 

20 and noncommercial entities from building upon, cul21 tivating, and preserving abandoned works. Indeed, 

22 while older works are less likely to retain commercial 

23 value, they are more likely to ‘‘prove useful to the 

24 historian, artist, or teacher.’’ Eldred v. Ashcroft, 

25 123 S. Ct. 769, 805 (2003) (Breyer, J., dissenting). 
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1 (5) Thus, the existing copyright system func2 tions contrary to the intent of the Framers of the 

3 Constitution in adopting the copyright clause and 

4 the intent of Congress in enacting the Copyright 

5 Act. Neither is intended to deprive the public of 

6 works when there is no commercial or copyright pur7 pose behind their continued protection. It is, there8 fore, necessary to establish a mechanism by which 

9 abandoned American copyrights can enter the public 

10 domain. 

11 SEC. 3. MAINTENANCE FEE FOR PUBLISHED UNITED 

12 STATES WORKS. 

13 (a) DEFINITION OF UNITED STATES WORK.—The 

14 definition of ‘‘United States work’’ contained in section 

15 101 of title 17, United States Code, is amended by strik16 ing ‘‘For purposes of section 411’’ and inserting ‘‘For pur17 poses of sections 306 and 411’’. 

18 (b) DURATION OF COPYRIGHT.—

19 (1) WORKS CREATED ON OR AFTER JANUARY 1, 

20 1978.—Section 302 of title 17, United States Code, 

21 is amended—

22 (A) in subsection (a), by striking ‘‘Copy23 right’’ and inserting ‘‘Subject to section 306, 

24 copyright’’; 
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1 (B) in subsection (b), by striking ‘‘In’’ and 

2 inserting ‘‘Subject to section 306, in’’; and 

3 (C) in subsection (c), in the first sentence, 

4 by striking ‘‘In’’ and inserting ‘‘Subject to sec5 tion 306, in’’. 

6 (2) WORKS CREATED BUT NOT PUBLISHED OR

7 COPYRIGHTED BEFORE JANUARY 1, 1978.—Section 

8 303(a) of title 17, United States Code, is amend9 ed—

10 (A) by striking ‘‘Copyright’’ and inserting 

11 ‘‘Subject to section 306, copyright’’; 

12 (B) by striking ‘‘. In no case, however,’’ 

13 and inserting ‘‘; except that, subject to section 

14 306, in no case’’; and 

15 (C) by striking ‘‘and, if’’ and inserting 

16 ‘‘and, subject to section 306, if’’. 

17 (3) SUBSISTING COPYRIGHTS.—Section 304 of 

18 title 17, United States Code, is amended—

19 (A) in subsection (a)—

20 (i) in paragraph (1)—

21 (I) in subparagraph (B), by 

22 striking ‘‘In’’ and inserting ‘‘Subject 

23 to section 306, in’’; and 
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1 (II) in subparagraph (C), by 

2 striking ‘‘In’’ and inserting ‘‘Subject 

3 to section 306, in’’; and 

4 (ii) in paragraph (2)—

5 (I) in subparagraph (A), by in6 serting ‘‘other than a copyright that 

7 expires under section 306,’’ after 

8 ‘‘(1)(B) of this subsection,’’; and 

9 (II) in subparagraph (B), by in10 serting ‘‘other than a copyright that 

11 expires under section 306,’’ after 

12 ‘‘(1)(C) of this subsection,’’; and 

13 (B) in subsection (b), by striking ‘‘Any’’ 

14 and inserting ‘‘Subject to section 306, any’’. 

15 (c) MAINTENANCE FEE.—

16 (1) IN GENERAL.—Chapter 3 of title 17, United 

17 States Code, is amended by inserting after section 

18 305 the following new section: 

19 ‘‘§ 306. Maintenance fee for published United States 

20 works 

21 ‘‘(a) FEE.—The Register of Copyrights shall charge 

22 a fee of $1 for maintaining in force the copyright in any 

23 published United States work. The fee shall be due 50 

24 years after the date of first publication or on December 

25 31, 2006, whichever occurs later, and every 10 years 
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1 thereafter until the end of the copyright term. Unless pay2 ment of the applicable maintenance fee is received in the 

3 Copyright Office on or before the date the fee is due or 

4 within a grace period of 6 months thereafter, the copyright 

5 shall expire as of the end of that grace period. 

6 ‘‘(b) ANCILLARY AND PROMOTIONAL WORKS.—If the 

7 copyright in a work is maintained in force under sub8 section (a), then any ancillary or promotional work used 

9 in connection with the work so maintained, such as an 

10 advertisement for a motion picture, shall be deemed also 

11 to be maintained in force under subsection (a). 

12 ‘‘(c) FORM.—The maintenance fee required by sub13 section (a) shall be accompanied by a form prescribed by 

14 the Register of Copyrights that conforms with section 409. 

15 The form may be used to satisfy the registration provi16 sions of sections 408 and 409, if it is accompanied by the 

17 prescribed deposit and fee, and by any additional identi18 fying material that the Register may, by regulation, re19 quire.’’. 

20 (2) CONFORMING AMENDMENT.—The table of 

21 sections for chapter 3 of title 17, United States 

22 Code, is amended by adding at the end the fol23 lowing:

‘‘306. Maintenance fee for published United States works.’’.

24 (d) COPYRIGHT OFFICE FEES.—Section 708(a) of 

25 title 17, United States Code, is amended—
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1 (1) in paragraph (8), by striking ‘‘and’’ after 

2 the semicolon; 

3 (2) in paragraph (9), by striking the period and 

4 inserting ‘‘; and’’; and 

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

6 ‘‘(10) the maintenance fee under section 306.’’. 

7 SEC. 4. DUTIES OF REGISTER. 

8 Not later than 12 months after the date of the enact9 ment of this Act, the Register of Copyrights shall—

10 (1) establish procedures to minimize the burden 

11 of submitting the form prescribed under section 

12 306(c) of title 17, United States Code, including 

13 procedures to allow the electronic submission of the 

14 form to the Copyright Office; and 

15 (2) establish procedures to make the informa16 tion contained in forms submitted under section 

17 306(c) of such title easily accessible to the public.

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