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Mark Methenitis’s “Copymark”

23 October, 2009 (08:55) | News and Commentary | By: TimA

Mark Methenitis is a practicing lawyer in Dallas and he rights a blog called Law of the Game in which he talks about various legal issues as they relate to videogames and the gaming industry in general.  Not surprisingly, he writes extensively about the complex nature of copyright law as applied to videogames and other software.  Recently, Methenitis has started a series titled “Intellectual Property 2.0” in which he discusses instances in which “the law has lagged behind the practicality of intellectual property management,” and he suggests possible solutions to these issues.

In the “Intellectual Property 2.0” series on May 14th of this year, Methenitis posted an entry titled “Convergence of Copyright and Trademark.”  Essentially, as the title suggests, Methenitis proposes that we fuse together the rights of copyright and trademark into a “copymark.”   The age old problem that Methenitis is trying to address is that the date for release of copyrighted material into the public domain stands at 1923 and will probably continue to do so while Disney has the requisite funds to lobby Congress to keep Mickey Mouse from going into the public domain.  Underlying this problem is that although Mickey Mouse is a trademark of the Disney Corporation, the trademark will expire in the event that Steamboat Willie (the first appearance of Mickey Mouse) is no longer protected under copyright.  So extending copyright is all well and good for Disney and for other corporations who would like their money-making brands to stay out of the public domain, however 86 years of history are in danger of being lost forever because no one has access to certain copyrighted materials.

There has been a lot of talk about how the copyright system is broken and about how we need to revise our system of protecting peoples’ rights over their works while at the same time ensuring public access.  The idea of copymark is so simple that I’m surprised I’ve never heard of this idea before.  Essentially, under a copymark provision, a company would forego their traditional rights to trademark and copyright over a given expression.   Under copymark, however, they would retain the same rights they would normally have to trademark and copyright, but they would have to renew the copymark periodically.  If they failed to renew, then the work would automatically be released into the public domain regardless of the 70 years after the life of the author provision as it currently stands under copyright law.

This would create a situation, of course, in which Disney could continually renew the copymark over Mickey Mouse indefinitely, however the alternative is that Disney and other corporations continually lobby Congress so that nothing that was created after 1923 ever goes into the public domain.  Methenitis also points out that something which is copymarked would still have fair use provisions.  So copies of copymarked material would still be available in libraries and archives.

For the most part, I think that this is a fascinating idea.  One major potential flaw that I see in a “copymark revolution” is – to whom do we allow the right to copymark materials?  If we allow it to everyone, then everyone could potentially copymark everything they create and then nothing would ever be public.  The solution, then, is to charge a fee which would be steep enough so that only those who are making significant amounts of money off of their copymarked material would have the incentive to renew their copymark.  This would potentially create a kind of heirarchy in which only industries could maintain a copymark, however if traditional trademark and copyright laws were to remain intact, I’m not sure that this would be a problem for individuals.  Disney could also, of course, balk at the requirement to pay to copymark their intellectual property, but they’re essentially doing the same right now by paying (who knows how much?) to lobby Congress.

At the very least, I think Methenitis has proposed an interesting idea, and it is ideas like these which need to start circulating if we are ever going to have public access to the history of the generations which are alive today.

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