66 Pages Posted: 27 Aug 2009 Last revised: 14 May 2014
Date Written: September 1, 2009
Federal law limits the free alienability of copyright rights to prevent powerful transferees from forcing authors into unremunerative bargains. The limiting mechanism is a statutory provision that permits authors or their heirs, at their sole election, to terminate any transfer or license of any copyright interest during a defined period. Indeed, the applicable provisions of the Copyright Act go so far as to invalidate purported waivers by authors of their statutory termination powers.
These statutory provisions may constitute an impediment to the effective grant of rights for the benefit of the public under widely used "open content" licensing arrangements, such as the GNU General Public License ("GPL") for software or the Creative Commons family of licenses for other sorts of expressive works. Although recent case law suggests that such open-source or open-content licensing arrangements should be analyzed under the same rules that govern other copyright licenses, doing so necessarily raises the possibility of termination of the license. If GPL or Creative Commons-type licenses are subject to later termination by authors (or their heirs), and this termination power cannot validly be waived, then users of such works must confront the possibility that the licenses may be revoked in the future and the works effectively withdrawn from public use, with potentially chaotic results.
Although a number of judge-made doctrines may be invoked to restrict termination of a license granted for the benefit of the public, the better course would be for Congress to enact new legislation expressly authorizing authors to make a nonwaiveable, irrevocable dedication of their works, in whole or in part, to the use and benefit of the public - a possibility that the Patent Act expressly recognizes, but the Copyright Act presently does not.
Keywords: copyright, licensing, GPL, Linux, Creative Commons, open source, public domain
JEL Classification: K39, O34
Suggested Citation: Suggested Citation
Armstrong, Timothy K., Shrinking the Commons: Termination of Copyright Licenses and Transfers for the Benefit of the Public (September 1, 2009). Harvard Journal on Legislation, Vol. 47, pp. 359-423, 2010; U of Cincinnati Public Law Research Paper No. 09-16. Available at SSRN: https://ssrn.com/abstract=1461859 or http://dx.doi.org/10.2139/ssrn.1461859