This provision would involve the federal copyright agencies in formulating a list of licenses that are not subject to termination. The agencies would be required to undertake notice-and-comment rulemaking, but not to hold hearings,[1] essentially the same procedure as currently applies to the triennial DMCA exemptions.[2] The reference to a required finding that a license “grant[s] copyright rights to the public at large” is again meant to aid in identifying the particular licenses that are to be excluded from the operation of the statute’s termination provisions (which would continue to apply to traditional arm’s-length transactions between named parties) and to provide enforceable standards to guide the agency’s rulemaking discretion. The agency might initially draw upon lists of open-content licenses that are maintained by private bodies, although it surely should not limit itself to those lists in view of the somewhat different purposes the termination exemptions are meant to serve.[3]
Clarity and flexibility would be the most obvious advantages of an administrative regime to promulgate exceptions to the statute’s termination provisions for open-content licensing. Consulting the agency’s list of nonterminable licenses would provide advance assurances to licensees that contributions to an open-content project would remain in the commons in perpetuity. Furthermore, as licensing instruments continued to evolve, the list of non-terminable licenses could expand as well.
Would an administrative exemption process for open-content licensing upset the existing statutory balance? Every delegation of rulemaking authority presents some risk of regulatory capture, and it is possible, albeit unlikely, that the Librarian’s power might be subject to abuse. For example, suppose the Librarian interceded on behalf of a powerful movie studio to declare non-terminable a license, like Siegel and Shuster’s, upon which the studio had built a lucrative franchise.[4] The amended statute’s reference to licenses that “grant copyright rights to the public at large” ought to ensure that such a misapplication of the agency’s power does not survive judicial review. Remaining issues—such as the inevitable lag between the promulgation of a new open-content license and its recognition as such by the Librarian or the effects of the Librarian’s removal of a previously recognized license from the non-terminable list—could probably be handled within the confines of the administrative process without judicial intervention.
- ↑ See generally 5 U.S.C. § 553 (2006).
- ↑ See supra note 367 and accompanying text.
- ↑ FSF and OSI, for example, maintain lists of licensing instruments that are believed to be compatible with those organizations’ governing philosophies, see supra note 48, but there is no persuasive reason to limit the termination exemption to licenses that happen to appear on either organization’s list. The original version of the Artistic License, for example, would make a prime candidate to be protected against termination, even though neither FSF nor OSI approved it. See supra note 279 and accompanying text.
- ↑ See supra Part III.B.1 (discussing the Superman case).
