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Re: New 'Public Domain' Licence

On 6/10/05, Sean Kellogg <skellogg@u.washington.edu> wrote:
> You could be right...  but I think that Mills is distinguishable on the law
> (if not also the facts...).  The renewal right under (s)304 and the
> termination right under (s)203 are really quite different.  For example, the
> renewal right is transferable, where the termination right is not.
> Additionally, if utilization is read the way you suggest, it really strikes
> at the heart of the policy objective of the termination right.

304(c)(6)(A) is exactly the same text as 203(b)(1), and applies only
to termination during the "extension term" (the 19 years after 28+28)
of a pre-1978 copyright.  No relation to the renewal term, as
discussed in Stewart v. Abend.

> The objective, as explained by my Copyrights Prof., is to provide authors a
> second chance to negotiate licenses that may have been poorly made when the
> work was first released.  If termination only prohibits the creation of new
> derivative works, leaving copying and distribution of preexisting
> derivatives, then what's really left to renegotiate?

Largely, terms on reproduction of the original work.  And as the most
important applications of the "derivative work" business are sound
recordings and film/television rights, and sound recordings are
exceptions to the Exception (per Woods v. Bourne), Congress probably
figured that it was stupid for a film to be withdrawn from circulation
because its producer's license to some song was terminated (as had
happened upon copyright renewal under the 1909 law).

Authors don't generally grant their publishers blanket licenses to
create derivative works of their books, and by the time they're
authorizing a screenplay they ought to know this is their one shot at
negotiating big royalty payments.  So about the only people getting
burned by the derivative works exception to termination are open
source authors who grant blanket authorizations to modify and reuse;
and that's fine, because it would be just as silly to let them pull
the plug on users of a derivative of their work as it would be to let
songwriters hold already "prepared" films for ransom.

> As an added complication, the utilization term is only applicable in the case
> of derivative works based on the licensed work, but not pure copies.  So if I
> have a license to copy and distribute a Beatles's song without any
> alterations from the original, when the license is terminated I'm left with
> nothing...  I can't even keep the original copy around!  Does making a
> derivative really earn you so many rights that you not only get to keep the
> copy, but also made new copies and distribute?!

You're misreading "utilize"; it's the publisher's right to "utilize"
the copyright license by copying and initial distribution that's being
terminated, not any right of use and subsequent transfer inherent in
an individual copy after first sale.  All that "preparing" a
derivative work (under explicit license to do so) gets a publisher is
the right to continue the terms of the existing agreement with respect
to that derivative work.  Read Woods v. Bourne for an idea of which
royalty agreements get renegotiated and which don't.

- Michael

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