may, of course, require Congress to make conforming amendments elsewhere in the statutory text.[1]
Would this amendment upset the existing balance of power as between authors and publishers? It is difficult to see how the amendment would give an unscrupulous licensee any new power to “game the system” to its own advantage.[2] The worst apparent risk is that a licensee might pressure an author to release her work under an open-content license (or to the public domain) at the expiration of a defined initial period of exclusive license to the licensee.[3] If the licensee enjoys a period of exclusive use of the work, and the work then becomes available to the public, the original licensee may continue exploiting the work without fear of termination under the amendment proposed above. But the public at large would enjoy precisely the same privilege following the expiration of the exclusive license. Thus, not only does the licensee not gain a greater advantage under this arrangement, it actually yields a benefit to the commons—precisely the reason why it makes sense to protect such licenses from termination.
As an alternative to crafting its own termination exception for opencontent licenses, Congress might delegate that task to a federal agency.[4] For example, consider the following proposed new § 203(a)(6):
The Librarian of Congress, upon recommendation of the Register of Copyrights, shall promulgate annually a listing of licensing instruments that it finds to grant copyright rights to the public at large, and such licensing instruments shall not be subject to termination under this section.
- ↑ For example, the phrase “otherwise than by will” in 17 U.S.C. § 203(a) might be amended to read “otherwise than by will or as provided below.”
- ↑ See Menell & Nimmer, supra note 255 (suggesting this test as a touchstone to govern judicial interpretations of the existing termination provisions).
- ↑ For example, a license of the general form “exclusively to Licensee for a period of thirty-four years, thence to the public domain.” The period of exclusive license would have to be shorter than the thirty-five–year duration that marks the opening of the statutory termination window, otherwise the licensee gains no ability to alter the existing termination regime by this route. (This arrangement, of course, presents a variation on Professor Kreiss’s hypothetical in which a downstream licensee aims to dedicate the licensed work to the public domain as a means of avoiding termination. See Kreiss, supra note 256.)
- ↑ For a regulatory system of such complexity and economic scope, copyright is unusual in that it has remained largely unaffected by the post-New Deal expansion in the power of administrative agencies. See Litman, supra note 365, at 356–57 (noting lack of support at the time of the Copyright Act of 1976 for proposal to extend substantive copyright rulemaking responsibilities to an administrative agency). Indeed, a large part of the complexity of the Copyright Act of 1976 stems from its inclusion of exceedingly detailed and complicated technical provisions that might be better handled by administrative regulation. See Samuelson, supra note 358, at 558 (recommending “an administrative process” to address “future advanced technology questions” as a means of “getting rid of some of the clutter in the existing statute”). Proposals to increase the role of administrative agencies recur often in contemporary copyright scholarship. See, e.g., Mark A. Lemley & R. Anthony Reese, A Quick and Inexpensive System for Resolving Peer-to-Peer Copyright Disputes, 23 Cardozo Arts & Ent. L.J. 1 (2005); Jason Mazzone, Administering Fair Use, 51 Wm. & Mary L. Rev. 395 (2009).
