Nothing may enter the public domain until it stops earning

Under a draft amendment now circulating among rightsholder associations, the fixed copyright term would be replaced by an earnings test. A work would remain private property for as long as it earned money, and would pass into the public domain only once the rightsholder filed a declaration confirming that it no longer did. The amendment runs to forty pages. The declaration is one page, and it is the page nobody expects to see completed.

The drafting would be admirably clear. Earning would mean any payment received in the previous thirty-six months in connection with the work: licensing, merchandising, synchronisation, adaptation, sampling and — under a clause added late in the process — the sale of any edition, in any format, anywhere. A single second-hand paperback changing hands in a single provincial bookshop would restart the clock for another three years.

Supporters would present it as a fairness reform, and the first half of that argument is genuinely strong. The present system is arbitrary: protection ends on a calendar date whether or not the work is still feeding anybody. Under an earnings test, an author's descendants would keep the income for as long as there is income, and the public would receive the work at the precise moment nobody wants it. Both halves would be true. The second would be printed smaller.

“The rightsholder is best placed to know whether a work still earns,” a spokesperson for the drafting group would explain. “That is why the declaration is voluntary. Nobody would be forced to release a work that still supports a family, and nobody would be prevented from releasing one that doesn't.” Asked how many declarations the modelling expected in the first decade, the same spokesperson would say the modelling had not gone that far.

Archivists would raise the real objection, and it would be the same objection every time. The works most in need of release are the ones whose owners cannot be found: the out-of-print, the uncatalogued, the studio that closed, the publisher absorbed three times over. Those works earn nothing, which is exactly why nobody is left to say so. Under an earnings test they would stay protected indefinitely on behalf of a person who cannot be located, against a public that would have to prove a negative on a form only the missing person may sign.

The public domain would not close. It would narrow to a thin, slow stream of failures: the forgotten, the unsold and the accidentally abandoned. The century's most loved work would stay in private hands for as long as love is billable, while the century's flops would be free by the end of the decade. Culture would still be handed down. It would simply be handed down in reverse order of quality.

Nothing has been tabled and no parliament has seen such a text. But the direction of travel is a matter of record rather than opinion: on every previous occasion that a valuable catalogue approached the end of its term, the term turned out to be longer than it had looked.