gap by referring to language in the Patent Act.[1] A court may be less willing to borrow language from the Patent Act where the effect is not to fill in a gap, but rather to displace language (to wit, the termination provisions) that actually appears in the Copyright Act. Furthermore, patent abandonment is a component of a larger regime that places the burden of seeking protection squarely on the inventor.[2] It makes sense to extend binding force to an inventor’s decision to abandon an invention (or to take one of the other steps that negates patentability) in a regime that makes the inventor’s action determinative of the invention’s legal status; where protection exists automatically irrespective of the author’s conduct, as in copyright, courts may be less inclined to attach permanent and irreversible consequences to the author’s statements. Finally, absent an authoritative construction of the statute from the Supreme Court, lingering uncertainty as to the proper judicial construction of the copyright statute and whether the courts will permit termination, may itself chill the use of open-content licenses in the interim. The better alternative, therefore, may be to seek a statutory amendment.
V. Reforming Copyright to Preserve Open Content
Congress, seemingly acting from a praiseworthy desire to benefit authors, unwittingly created an obstacle to the ability of authors purposefully to expand the commons through the use of open-content licenses. The statutory termination provisions, which were designed to remedy unremunerative transfers, may apply by their terms even to licensing arrangements that pose none of the risks that moved Congress to act. With the courts ill-positioned to remedy the problem, it makes sense to seek legislative action to place a firmer legal footing under open-content projects.
The termination provisions, as with much of the remainder of the Copyright Act, presuppose a production scheme in which authors’ proprietary interests dominate; indeed, Congress justified the termination provisions precisely because they further authors’ interests in capturing the economic returns for their work.[3] The statute’s baseline assumption that all authors wish to capture the full economic value of the works they produce has been
placed in doubt by the success of the open-content movement.[4] That move-
- ↑ See supra notes 341, 347 and accompanying text.
- ↑ See supra notes 326–30 and accompanying text.
- ↑ See supra notes 261–62 and accompanying text.
- ↑ Professor Reese has argued that this is not so and that it is perfectly foreseeable that authors may wish temporarily to permit reuse of their works by open-content projects, then later recapture and market the rights in their contributions. See Reese, supra note 320, manuscript at 19 (“Interpreting Section 203 to apply to Creative Commons licenses thus seems largely consonant with the policies that section implements.”). Professor Reese and I simply read the record differently. Particularly where the governing licensing instruments include express representations to licensees concerning the permanence of the grant (see supra notes 74, 77, 120, 140, 215, 224–26 and accompanying text) and the open-content community has apparently taken these provisions at face value (see supra notes 75–76, 122, 147 and accompanying text), Professor Reese seems to endorse a simple bait-and-switch, permitting licensors
