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Judge Richard Posner is guest-blogging on Larry Lessig’s blog this week, and he speaks of a forthcoming paper with a brilliant compromise between copyright propertization and amelioration of the negative effects of long copyright terms with no renewal required:

Bill Patry, a distinguished copyright lawyer and treatise writer, and I have written an article soon to be published in the California Law Review in which we advocate an interpretation of “fair use” that would solve the major problem that extending the copyright term creates. We argue that it should be considered fair use to copy an old work if the copyright owner hasn’t taken reasonable steps to provide notice of his continued rights, as by entering his name and address in a copyright registry. Given such a rule, such registries (which have counterparts in the case of works of visual art) would spring up overnight. Then if an Eldred wanted to publish some old work, he would consult the registry or registries and if no owner was listed (which would usually be the case, because most old works have no commercial value and so their owners won’t bother to try to keep them from falling into the public domain), he could publish it without a license.

This seems somewhat similar to the Eldred Act proposal, and has the potential to raise the same Berne convention compatibility questions. Similar problems are explored by a forthcoming article in the Stanford Law Review by my CIS colleague Chris Sprigman titled Reform(aliz)ing Copyright.