This portion of existing US copyright law is a bit curious. On the one hand, letting artists 'have a second bite of the apple' if their work turns out to be so lucrative that the original terms are inappropriate sounds good. On the other hand, not letting someone sell all of their rights seems a limitation on personal freedom and we should recognize that publishers often risk paying an artist for a work that is a commercial dud.
Further, this means that code that was once GPL or public domain could be reverted back to private ownership by the author or his heirs after 35 years. This would likely be a mess, would subsequent revisions be considered derivative infringement?
The argument is that an artist can't sell a license to a new copyright guaranteed to last longer than 35 years, i.e. sell their termination rights for money up front. Any such wording is unenforceable today. Therefore, artists are limited in the manner which they may sell their own work.
Ah, I see. So even though you could still technically sell your rights and then never ask for them back, the law has made this effectively impossible because the buyer can't prevent you from doing so. Interesting.
The statute doesn't seem to limit the selling of derivatives, though... it seems to me that it would be quite straightforward for the artist to simply sell the copyright as well as a call option on the same copyright 35 years in the future. So artist really hasn't lost any rights.
The statute says that any agreement to grant a license which is made before the date of termination is invalid. That would certainly include an optional license.
It was a common thing before '76, and the current statute is quite clear-- you can't sign anything that would give this right up before it happens.
Further, this means that code that was once GPL or public domain could be reverted back to private ownership by the author or his heirs after 35 years.
It seems this applies to transfers, not licenses that have no effect on the copyright holder. The GPL, for example, doesn't take rights away from the original author and give them to someone else, unlike a recording contract.
"(a) Conditions for Termination. — In the case of any work other than a work made for hire, the exclusive or nonexclusive grant of a transfer or license of copyright or of any right under a copyright[...] is subject to termination under the following conditions [...]"
I remember PJ mentioned it, very dismissively, in a Groklaw post[1] and its comments in 2008. I made the same suggestion[2] you did about 203(b)(1), but another anonymous commenter pointed out that further works based on the source might be problematic.
It sounds like an area of copyright law that is in desperate need of clarification from the legislature before the courts become involved, considering that modern copyrighted works are almost always "licensed" as a matter of usage, not just as part of a distribution and publishing agreement.
Or maybe that was the intent of the software vendors all along -- revoke all licenses after 35 years so we have no choice but to upgrade ;-).
It's important to note that it wasn't always like this. The basic concept of termination rights -- recognizing the wild power imbalance between artist and publisher, and therefore giving the artist a second crack at selling their rights -- is quite old, but in practice it hasn't mattered; the upshot was that the standard publishing deal included an automatic renewal, so the right may as well not have existed. So in 1976 Congress chose to double down on termination, making it explicitly an inalienable right that cannot be sold by any type of contract.
It strikes me as a rather tortured reading of this that makes it a limitation of the artists' rights, rather than the publishers'; like laws which outlaw contractual slavery, while it technically bans both parties from participating, the intended impact is much more on the would-be oppressor than the oppressed.
Now, the impact that this might have on open source is certainly interesting, but I doubt it would have far-reaching implications since termination wouldn't retroactively affect licenses that were in force at the time, so derivative works would be in the clear. On the other hand, who knows how the case law will shake out on this over the next few years... software will probably not be the most affected industry.
> It strikes me as a rather tortured reading of this that makes it a limitation of the artists' rights, rather than the publishers'
I'm personally not entirely against the law as it stands, and I agree that publishers have a great deal of power to define the terms of an agreement they can force on an artist. That said, I don't think it's so tortured to think someone really might not want her heirs to meddle with her license grants to a university or museum.
That's a legit criticism, but it sounds to me like it's more a criticism of the inheritability of copyright than of termination rights per se. (Is it any more fair that my heirs could sell my work to Disney?)
> Further, this means that code that was once GPL or public domain could be reverted back to private ownership by the author or his heirs after 35 years.
That's true (and without the 35 year limitation) just based on the fact that gratuitous licenses are revocable at will, terminations rights aren't even necessary to it.
The effect of revocation might be mitigated to some extent by promissory estoppel, but -- despite the fact that some people have asserted that that completely neutralizes the risk -- I've seen no substantial case law that is directly on point or even closely analogous that supports the idea that it would completely negate the effect of revocation.
Some people claim that there is an element of consideration to the GPL that makes it subject to regular contract law, but, yes, as far as I know as a non-lawyer, there's no caselaw either way.
The termination right, of course, is a limit on free transfer. As a result, instead of a narrow attack on the termination rights of musicians by reclassifying their works as “works-for-hire,” the text here could eliminate termination rights for everyone.
But is this bad? Yes, there's definitely a power imbalance, but if the copyright regime is simpler, with no artificial legal limitations on the lifetime of the contractual assignment, then artists can negotiate either higher prices or reversion options at time of assignment.
Speaking as an artist (with experience of starving, being ripped off by publishers, and sundry other disadvantages), simplicity has value. A 35-year termination rights period is a nice idea for a corrective but actually limits my negotiating position as the publisher is going to discount the value of the copyright assignment appropriately. The flip side of the economic imbalance between creator and publisher is that the publisher is in a much better position to realize the benefits of long-tail revenue, since publishers have expertise in marketing, analytics, revenue collection etc. that are difficult for an individual to acquire, and whose acquisition has a significant opportunity cost in terms of creative development/output. If the publisher can lose all contractual rights after 35 years then it has every economic incentive to a) maximize up-front economic gain and b) minimize long term commitment.
Also, as regards the TPP specifically, if this deal were to go through as-is then artists would be able to argue that overseas publication rights were worth more money due to the harmony of regulation, in stead of having revenue siphoned off my the bureaucracy of dealing with multiple differing copyright regimes in the signatory countries. In my view, a single licensing standard that extended from the EU (via upcoming TTIP negotiations) to much of the Pacific Rim (via TPP) would be a distinct plus for artists, since that would cover something like 70% of the global economy and would massively reduce transaction costs.
Either way the market is going to be mostly uniform as long as publishers control a significant portion of it. You won't get less than anyone else if everyone can revoke at year 35, and you won't get more than anyone else if the standard contract is a lifetime irrevocable transfer.
On the surface, I like the argument that the value proposition is higher if it's a true permanent transfer, but there's no guarantee that more money would get passed on to the artist if the publisher could just increase its own margins.
You're thinking in terms of a one-off, such as an album or book release. But things like alternative mixes, remasters, unreleased tracks etc. can have significant value for famous artists.
Think 'lost Beatles track,' for example. Likewise, Fritz Lang's film classic 'Metropolis' is under copyright until 2023; there have been several reissues of the film with missing footage restored (after being found in museums and the like). Film contracts in particular often have structural dependencies on box-office performance.
21 comments
[ 4.1 ms ] story [ 52.4 ms ] threadFurther, this means that code that was once GPL or public domain could be reverted back to private ownership by the author or his heirs after 35 years. This would likely be a mess, would subsequent revisions be considered derivative infringement?
It was a common thing before '76, and the current statute is quite clear-- you can't sign anything that would give this right up before it happens.
It seems this applies to transfers, not licenses that have no effect on the copyright holder. The GPL, for example, doesn't take rights away from the original author and give them to someone else, unlike a recording contract.
"(a) Conditions for Termination. — In the case of any work other than a work made for hire, the exclusive or nonexclusive grant of a transfer or license of copyright or of any right under a copyright[...] is subject to termination under the following conditions [...]"
- http://www.copyright.gov/title17/92chap2.html#203
Has anyone written about the possible interactions with copyright termination of permissive and copyleft licenses?
[1] http://www.groklaw.net/articlebasic.php?story=20060622045521...
[2] http://www.groklaw.net/comment.php?mode=display&sid=20060622...
Or maybe that was the intent of the software vendors all along -- revoke all licenses after 35 years so we have no choice but to upgrade ;-).
It strikes me as a rather tortured reading of this that makes it a limitation of the artists' rights, rather than the publishers'; like laws which outlaw contractual slavery, while it technically bans both parties from participating, the intended impact is much more on the would-be oppressor than the oppressed.
Now, the impact that this might have on open source is certainly interesting, but I doubt it would have far-reaching implications since termination wouldn't retroactively affect licenses that were in force at the time, so derivative works would be in the clear. On the other hand, who knows how the case law will shake out on this over the next few years... software will probably not be the most affected industry.
I'm personally not entirely against the law as it stands, and I agree that publishers have a great deal of power to define the terms of an agreement they can force on an artist. That said, I don't think it's so tortured to think someone really might not want her heirs to meddle with her license grants to a university or museum.
That's true (and without the 35 year limitation) just based on the fact that gratuitous licenses are revocable at will, terminations rights aren't even necessary to it.
The effect of revocation might be mitigated to some extent by promissory estoppel, but -- despite the fact that some people have asserted that that completely neutralizes the risk -- I've seen no substantial case law that is directly on point or even closely analogous that supports the idea that it would completely negate the effect of revocation.
But is this bad? Yes, there's definitely a power imbalance, but if the copyright regime is simpler, with no artificial legal limitations on the lifetime of the contractual assignment, then artists can negotiate either higher prices or reversion options at time of assignment.
Speaking as an artist (with experience of starving, being ripped off by publishers, and sundry other disadvantages), simplicity has value. A 35-year termination rights period is a nice idea for a corrective but actually limits my negotiating position as the publisher is going to discount the value of the copyright assignment appropriately. The flip side of the economic imbalance between creator and publisher is that the publisher is in a much better position to realize the benefits of long-tail revenue, since publishers have expertise in marketing, analytics, revenue collection etc. that are difficult for an individual to acquire, and whose acquisition has a significant opportunity cost in terms of creative development/output. If the publisher can lose all contractual rights after 35 years then it has every economic incentive to a) maximize up-front economic gain and b) minimize long term commitment.
Also, as regards the TPP specifically, if this deal were to go through as-is then artists would be able to argue that overseas publication rights were worth more money due to the harmony of regulation, in stead of having revenue siphoned off my the bureaucracy of dealing with multiple differing copyright regimes in the signatory countries. In my view, a single licensing standard that extended from the EU (via upcoming TTIP negotiations) to much of the Pacific Rim (via TPP) would be a distinct plus for artists, since that would cover something like 70% of the global economy and would massively reduce transaction costs.
On the surface, I like the argument that the value proposition is higher if it's a true permanent transfer, but there's no guarantee that more money would get passed on to the artist if the publisher could just increase its own margins.
Think 'lost Beatles track,' for example. Likewise, Fritz Lang's film classic 'Metropolis' is under copyright until 2023; there have been several reissues of the film with missing footage restored (after being found in museums and the like). Film contracts in particular often have structural dependencies on box-office performance.