ment arose only after the enactment of the Copyright Act of 1976, however, and it seems impossible that Congress could have intended, in 1976, to squelch the commons-based peer production phenomenon that would later arise.[1] The risks that the statute’s termination provisions pose to open-content projects are unintended consequences, not conscious purposes, of the enacted text.[2] Updating the statute to eliminate those unintended consequences would be conceptually valuable insofar as it would recognize, in positive law, the changes in the baseline assumption of proprietary production that have occurred since 1976.
Comprehensive copyright reform—a top-to-bottom statutory rewrite of the sort Congress is presently debating for the Patent Act[3]—is surely not in the cards at present for political reasons. Although Professor Pamela Samuelson has launched a worthwhile project aimed at sketching the broad contours of a future model copyright law, even she concedes that the effort is not presently politically feasible.[4] The existing copyright regime supports concentrated, profitable, and politically influential industries,[5] and Congress perceives the existing structure of intellectual property law as defining an area of American competitive advantage in global trade.[6] Sweeping re-
- ↑ See supra notes 50–53 and accompanying text (summarizing history of open-content licenses, the earliest of which was promulgated long after 1976).
- ↑ See supra notes 236–40 and accompanying text (noting that the termination provisions were intended to counteract licensees’ superior bargaining power and to remedy unremunerative transfers).
- ↑ See H.R. 1260, 111th Cong. (2009); S. 515, 111th Cong. (2009). A comprehensive patent reform bill passed the House in 2007, but legislative efforts have remained largely stalled since that time. See H.R. 1908, 110th Cong. (2007).
- ↑ See Pamela Samuelson, Preliminary Thoughts on Copyright Reform, 2007 Utah L. Rev. 551, 556.
- ↑ See, e.g., Jessica Litman, Copyright, Compromise, and Legislative History, 72 Cornell L. Rev. 857, 861 (1987) (noting that language used in the Copyright Act of 1976 frequently “evolved through a process of negotiation among authors, publishers, and other parties with economic interests in the property rights the statute defines”); id. at 879 (questioning whether it makes sense to refer to “legislative intent” in view of the industry-driven negotiated drafting process); see also Landes & Posner, supra note 34, ch. 15 (discussing roles of interest groups in influencing copyright legislation); Netanel, supra note 156, at 184–85 (noting the relative absence of representatives of the public interest in the copyright legislative process).
- ↑ See, e.g., S. Rep. No. 104-315, at 9 (1996) (emphasizing risks to U.S. competitiveness if duration of existing copyrights was not extended); Ruth Gana Okediji, Copyright and Public Welfare in Global Perspective, 7 Ind. J. Global Legal Stud. 117, 120 n.9 (1999) (noting that this perspective is broadly shared among developed nations).
years after the fact to renege on their own assurances of a perpetual grant and demand compensation from users of the licensed works. To put it another way, Professor Reese and I agree that current law seems to permit termination of an open-content license even where the terms of the license provide for a perpetual grant. We differ insofar as I regard this as a flaw, not a benefit, of the current statutory regime. (I would, of course, have no objection to authors making a limited-term grant of rights in their works to the use and benefit of the public where the temporary nature of the grant was apparent on the face of the license, nor to the application of the termination provisions to a license that was silent as to its intended duration. Nevertheless, it is not difficult to imagine variations on the latter scenario that would present a more troubling case for termination, as where the licensor by its conduct induces the licensee to believe that the license is perpetual.)
