successors, fully intending that such Waiver shall not be subject to revocation, rescission, cancellation, [or] termination[.]”[1] Should this attempt to abandon copyright fail, the license confers in the alternative a broad and unconditional license permitting free reuse of the works and a covenant not to sue.[2]
The CC0 license improves upon the Public Domain Dedication in a number of respects. The CC0 license’s Statement of Purpose, which lacks any parallel in the Public Domain Dedication, may supply a useful interpretive guide to courts or other authorities called upon to construe the license insofar as it explicates and justifies the author’s conscious determination to forgo proprietary rewards in favor of building the commons. For lawyers and policymakers steeped in copyright’s historically dominant proprietary-production paradigm, this concise introduction to the open-content movement’s alternative worldview may be highly valuable. The CC0 license also recognizes the potential legal infirmity of the clause abandoning copyright in the work and, in classic open-content fashion, adapts itself to the potentially hostile contours of existing law.
Other aspects of the CC0 license, however, may prove problematic. Both the abandonment clause and the alternative license clause emphasize the intent to create a permanent and irrevocable change in the ownership status of the copyright in the underlying work in order to expand the commons. Existing U.S. law, however, may not comfortably accommodate a transfer “to the detriment of Affirmer’s heirs and successors” that “shall not be subject to . . . termination,”[3] nor an “irrevocable . . . license[.]”[4] Such provisions may run afoul of the termination rights the Copyright Act confers upon the authors of expressive works, which cannot be waived or contracted away.[5]
Existing law, in sum, poses a number of obstacles to the growth of the public domain as a commons of freely reusable expressive works. Several of the routes by which expressive works once entered the public domain have been curtailed or eliminated; indeed, the only circumstance the Copyright Act presently expressly recognizes as ending protection under copyright for U.S. works is through the expiration of the statutory term of protection.[6] The strong statutory presumption of continual proprietary protection influences other copyright policymakers, too; the courts, for their part, are exceedingly unlikely to find that an author has abandoned the rights vested
- ↑ Id. § 2.
- ↑ Id. § 3.
- ↑ Id. § 2.
- ↑ Id. § 3.
- ↑ See infra notes 237–38 and accompanying text.
- ↑ See 17 U.S.C. §§ 302–04 (2006). The qualifier “for U.S. works” is necessary to avoid the complicating effects of 17 U.S.C. § 104A, which provides for restoration of U.S. copyright in some foreign works that had previously entered the public domain in the United States. But see Golan v. Holder, 611 F. Supp. 2d 1165 (D. Colo. 2009) (invalidating this provision on constitutional grounds).
