On March 4, 2013, U.S. Register of Copyrights Maria Pallante delivered a speech at Columbia Law School on The Next Great Copyright Act.

Register Pallante noted that the issue of termination of transfers was compromised or undermined by over-negotiation.  “The policy [of termination] is sound, but the provisions as enacted are almost incomprehensible on their face, particularly for the authors, widows, widowers, children and other heirs who need to navigate them.”  Nevertheless, termination of transfer was not listed as one of the “major issues” in Register Pallante’s speech.

In recent years, Congress has requested that the Copyright Office prepare a number of formal studies and analyses and conduct public inquiries and roundtables on important issues.  These include an analysis of termination provisions in the context of pre-1978 contracts, noted here.

Pallante’s speech, as well as her more recent testimony on March 20, has started a process for comprehensive revision to U.S. copyright law.  (Here is House Judiciary Committee Chairman Bob Goodlatte’s announcement in this regard.)

Today, the House Subcommittee on Courts, Intellectual Property and the Internet held a hearing entitled, “A Case Study for Consensus Building: The Copyright Principles Project.”  This hearing’s witnesses (described by some as offering a vision for a roadmap “absent of opinions of the self-interested”[1]) contributed to a report published in the Berkeley Technology Law Journal in 2010 (read it here).  The report stated that, “The copyright transfer rules about which we have the gravest reservations are those that currently allow individual authors or their heirs to terminate transfers, including exclusive and non-exclusive licenses and assignments, after a certain number of years . . . we think the termination of transfer rules are too complicated and formalistic to achieve the desired objective of allowing authors to have opportunities to control uses of their works.”  Later, the report wrote that the current termination of transfer procedure is, “so cumbersome and complicated that most authors will not realistically have a meaningful opportunity to terminate [their] transfers.”  However, there was substantial disagreement on specific proposals to improve termination of transfer.

The participants in the Copyright Principles Project deliberated over several changes to the current mechanism for terminations of transfer.  One example of a simpler termination mechanism, discussed in the paper, was to limit the termination right to the author himself during his lifetime. After the author’s death, the statutory termination right would be unavailable.  Complementary changes would include decreasing the time frame for termination, e.g., 15 or 20 years after a grant.  More protection to a grantee’s interest in derivative works was also discussed.[2]

I watched the second half of the hearing, and did not hear the witnesses discuss terminations of transfer.  However, this may not be the appropriate time for specific solutions.[3]  In fact, Rep. Goodlatte stated that we should not be in a rush to focus on specific issues before understanding fundamental principles.

Does this mean that termination of transfers will be changed to add certainty, making it more user-friendly for those who need to interpret and rely upon its provisions in The Next Great Copyright Act?  It’s hard to say.