Recently, the news broke that Village People songwriter Victor Willis (for those who don’t know who he is just one word: YMCA!) had won an important case (see here and here) on the issue of US copyright termination rights (sec. 203 of the Copyright Act). I’ve wanted to write about this topic ever since, but well, there was so much going on in the IP/IT world lately, and, whoops, four weeks have passed like nothing. Anyway, I just came across a proposal of the German Pirates involving the introduction of a license termination mechanism similar to the US approach and thought I’d just shoot out a few observations and thoughts.
1. To start with, I quite like the general concept of the US termination provisions, namely that authors should be able to terminate their grants once a certain time period has passed (to be more specific, we are talking here about 35 years). Giving them this way a second bite at the licensing apple addresses quite well “the impossibility of determining a work’s value until it has been exploited” (see H.R. Rep. No. 94-1476, at 124 (1976)).
However, this approach hasn’t been taken in Germany, where authors are protecteby different means: They are entitled to always receive “equitable remuneration” (see sec. 32 and 32a of the German Copyright Act, and some English explanation). This means (1) that authors have the right to receive compensation for any use of their works, and (2) that this compensation must be at least on an equitable level. If a license agreement provides for less compensation, the author may still claim more, even if the insufficiency becomes apparent only far later than the license agreement was concluded. The German way is obviously more flexible, but the US has the beauty of being comparatively clear and straight-forward.
The Pirate’s proposal (p. 9) mentioned above combines both concepts. At the Pirate’s last party convention in Offenbach, the delegates accepted a paper suggesting inter alia the introduction of a new clause into the Copyright Act, according to which any exclusive licenses should terminate 25 years after their grant. This is similar to the US provisions, but not quite the same: Firstly, the proposal targets only exclusive licenses, whereas the US law in force covers any kind of license. Then, the Pirate’s idea provides for a shorter period during which grants would remain untouchable (25 instead of 35 years). And finally, it seems that according to the Pirates, the license should lapse in any event, even if the licensor would like to continue the license. This might not always be in the author’s interest, but I assume the Pirates would fix this, too.
2. Another aspect that would be different under German law (and isn’t addressed in the Pirate proposal), but was big in the Willis case is the treatment of licenses for works of joint authorship. In Willis, the court came to the conclusion that one of the co-authors may terminate the license for his own interest in the work, without needing the consent of the other authors. The court relied mostly on the fact that co-authors may equally make such grants independently from their coauthors. Under German law, the outcome would be the exact opposite as co-authors always need the other co-authors’ consent for any acts of exploiting the joint work, including the licensing and “unlicensing” of the work.
3. Finally, I wonder what effects termination clauses have/could have on Free Licensing mechanisms. Could, for example, a Creative Commons, GPL or BSD licensor pick specific licensees and terminate the licenses he granted to them? Under the Pirate proposal the answer would be “no”, as Free Licenses are not exclusive. In contrast, I do not see that US law would prevent this kind of license termination. But would this have any significant practical effect? Couldn’t the licensee just receive new rights under the same Free License as anyone else? Well, in my opinion not necessarily: When the copyright owner has informed the recipient of a work copy that he will not give him a license, this unambiguous statement should eventually prevail, shouldn’t it?