to the use and benefit of the public—a possibility that the Patent Act expressly recognizes, but the Copyright Act presently does not.
I. Introduction
Copyrights imperfectly resemble property. Like property, the various rights comprised in a copyright may be conveyed, separately or together, from one owner to another.[1] Unlike transfers involving other forms of both tangible and intellectual property, however, all transfers or licenses of copyright interests by a work’s author are revocable. They may be terminated, during a defined period, at the sole election of the author or the author’s statutory heirs.[2] Further strengthening authorial control, the Copyright Act expressly makes the author’s unilateral power to rescind the transfer irrevocable and nonwaiveable.[3] Thus, copyright rights differ, in a fundamental way, from any other form of property: their initial ownership cannot voluntarily be permanently and unconditionally divested.[4]
According to the legislative history, Congress intended the statutory provisions allowing termination of transfers to protect authors of expressive works from overreaching by powerful licensees, who may effectively pressure authors to make transfers on unremunerative terms.[5] To be sure, examples of such overreaching are not difficult to locate in the cases construing the termination provisions. As between authors and publishers, the latter frequently enjoy superior bargaining power.[6] Importantly, however, although redressing unremunerative bargains and preventing overreaching by licensees supply the underlying rationale for the termination rules, the statute expressly makes all copyright licenses or transfers by the author terminable without regard to the details of the parties’ bargain.[7]
The statute’s termination provisions may pose an underappreciated risk to a wide variety of contemporary “open content” projects,[8] which depend
- ↑ 17 U.S.C. § 106 (2006) enumerates the copyright holder’s exclusive rights, including the rights to reproduce, distribute, and prepare derivative works from the copyrighted work. Additionally, some expressive works receive further protections in the form of exclusive rights of public performance or display, or of digital audio transmission. See id. Each of these rights may be owned and transferred separately upon whatever terms the parties to the transaction agree to adopt. See generally id. § 201(d).
- ↑ Id. §§ 203(a) (governing termination of transfers executed in 1978 or later), 304(c) (governing termination of transfers executed in 1977 or before). See generally infra Part III.B.1.
- ↑ See §§ 203(a)(5), 304(c)(5). See generally infra notes 255–56, 260 and accompanying text.
- ↑ The sole exception in the Copyright Act is for transfers by will, which are expressly excluded from the operation of the termination provisions. See §§ 203(a), 304(c). For all voluntary transfers or licenses of copyright made inter vivos, however, termination remains potentially available. Involuntary transfers, such as by expropriation or by operation of law, lie outside the present inquiry. Regarding such transfers, see generally id. § 201(d)(1), (e).
- ↑ See infra notes 236–39, 261–62 and accompanying text.
- ↑ See infra notes 231–35 and accompanying text.
- ↑ See §§ 203(a)(5), 304(c)(5). See generally infra notes 255–60 and accompanying text.
- ↑ “Open content,” as used herein, refers to all expressive works licensed under terms that allow copying, modification, and redistribution by unspecified third parties, with or without
