Category Archives: Termination of Transfers

US Copyright Office Defends Artists’ Rights to Terminate their Copyright Transfers

Posted November 11, 2022

UPDATE: You can find Authors Alliance’s comment on the Copyright Office’s proposed rulemaking here.

“Termination of Transfer,” is a legal tool that allows authors to recapture rights previously handed over to another party, even if their contract contains language to the contrary. It’s a really great idea. The policy rationale is that we need a way to recognize “the unequal bargaining position of authors, resulting in part from the impossibility of determining a work’s value until it has been exploited.” Thus, Congress in Sections 203 (for pre-1978 works) and 304 (for post-1978 works) implemented rules that allow authors to regain their rights by terminating transfers of them after a minimum of 35 years.

The problem with termination of transfer is that almost no one uses it. Professor Rebecca Giblin has written about this extensively–for example, in an article she co-authored last year demonstrating that in the eight years since works first became eligible for termination under Section 203, creators exercised their termination rights for very few works (e.g. only around 800 books over that time period, a tiny fraction of those eligible).

The system is incredibly complex and confusing, with numerous exceptions and technical requirements, such that creators can’t reasonably navigate it without significant time, expense, and usually a team of lawyers. I won’t go into all the gory details, but this report by Public Knowledge provides a good overview, highlighting the ways that Termination of Transfer in practice fails creators. This is due to the law’s complexity and the ways publishers and other corporate rightsholders systematically weaponize that complexity to prevent creators from benefiting from termination of transfer. It can be hard for creators to know how to stand up for their rights, or even to know that their rights are at risk in the first place.

Exhibit 1: The Mechanical Licensing Collective’s Attempt to Erase the Termination Right for Songwriters

A good recent example of this kind of complexity is buried in a recent regulatory filing from the U.S. Copyright Office titled “Termination Rights and the Music Modernization Act’s Blanket License.”

In it, the Copyright Office recounts an effort by music industry powers to essentially eliminate the termination right for songwriters who would be otherwise entitled to royalties for their songs when sold or streamed digitally. Thankfully, the Copyright Office is paying attention and has crafted a proposed rule to prevent such abuse.

A little bit of background: in the world of music licensing, songwriters often transfer their rights to music publishers. Among the ways that those publishers make money is by licensing the underlying musical composition (lyrics, music) for use in actual sound recordings. These are typically referred to as “mechanical licenses.” In 2018, Congress passed the Music Modernization Act (“MMA”), which established a new blanket licensing system for digital music providers (e.g. Spotify, YouTube Music, and Pandora) that want to stream or offer downloadable digital copies and need to obtain mechanical rights. The system is operated by something called the “Mechanical Licensing Collective,” a nonprofit designated by the Copyright Office pursuant to the MMA and run by a board of 13 directors (ten music publishing executives and three songwriters).

Given this new system of blanket licensing, the MLC had to decide how it would pay out royalties in situations where a songwriter terminated her transfer of rights to a music publisher. The way this works in other contexts–e.g. when ASCAP receives notice from a creator that a grant has been terminated–is that the licensing intermediary holds onto any royalties until it is clear (either by agreement of the parties, or court order) who owns the rights, and then pays out royalties to the appropriate party.

The MLC decided to take a different approach–it proposed a default rule that said that, even when a creator terminates rights, the appropriate payee would be whomever held rights in the work at the time when it happened to have been saved on a digital music provider’s server. This bizarre proposal is a bit easier to understand when you consider that it would also conveniently mean that the publishers would almost always be entitled to all future mechanical license royalties. The MLC, after finding that the Copyright Office and many creators objected to this brazen proposal, changed course (modestly) by adopting a different rule that did basically the same thing. Instead of establishing a process for holding funds until a dispute was resolved, the MLC adopted a rule that as long as a publisher had actively licensed the work and used it at least once before the termination date, the publisher would forever receive royalties from the MLC, and not the creator who terminated rights.

The MLCs legal rationale for its default rules was based on an incredibly generous (to publishers) reading of one of the exceptions to the termination right: the “derivative work” exception, which states that “a derivative work prepared under authority of the grant before its termination may continue to be utilized under the terms of the grant after its termination.” The MLC’s position was that this exception applied to any of the sound recordings used by digital music providers that incorporate music from songwriters, despite the statutory language in the MMA and elsewhere indicating that funds for mechanical rights under the statutory blanket license should be paid out to whomever the copyright holder is at the time of the actual use.

Thankfully, and unlike the MLC, the Copyright Office decided it would read the law for what it says. It concluded, reasonably, that the correct rule should be that whoever actually owns the rights should receive payment at the time the work is used. We plan to submit a comment supporting the Copyright Office’s proposed rule. You can do so too, here.

Making Termination Easier

We strongly believe that it should be easier for creators to exercise their termination rights, without having to jump through complex hoops and without having to battle with moneyed industry interests that seek to exploit and expand exceptions to the rule. We’ve created a number of resources to help authors terminate their transfers and regain their rights. These include a set of Frequently Asked Questions, a tool (created with Creative Commons) to guide authors through the process, and guidance and templates for how to effectuate a termination request. If you have questions or ideas on how we can help make the process easier, including advocating for changes in the law to make the system better, we want to hear from you! You can find us at info@authorsalliance.org or online on Twitter at @auths_alliance.

Top Gun and Termination of Transfer

Posted June 10, 2022

Termination of transfer has been in the news lately with a dispute over the release of a sequel to the movie Top Gun, entitled Top Gun Maverick, which as of the date of this blog post is one of the highest grossing movies in the U.S.. A little discussed and somewhat arcane provision of copyright law, termination of transfer is a mechanism that allows authors to formally reclaim rights that were previously handed over to a publisher or another party. Termination of transfer can be a powerful tool for authors who want to reclaim rights, but the termination of transfer statute is complicated, requiring that authors wait at least 35 years to exercise this right and serve notice between two and ten years in advance.

In the Top Gun Maverick dispute, the estate of the author who wrote a magazine article on which the original Top Gun movie was based is suing Paramount Pictures in an effort to stop the film’s release. Paramount had obtained a license for the magazine article, a nonfiction piece entitled “Top Guns,” for the original movie, but did not obtain a license to use the materials for the sequel. “Top Guns” was published in 1983 and is “a character-driven tale of two ambitious Navy fighter pilots” which inspired the original film.

In its complaint, the estate claims that it terminated the transfer of rights in “Top Guns” via the statutory provision, meaning that Paramount would no longer hold rights in the article as of the date of termination. The estate provided notice about the termination in 2018, and alleges that the termination went into effect in 2020. For its part, Paramount claims that Top Gun Maverick was “sufficiently completed” before 2020 when the termination went into effect, as it had originally been planned for release in 2019. On the other hand, the estate has expressed its view that the film was not completed until 2021 based on re-shoots.

The questions in the Top Gun Maverick dispute may be largely technical: what does it mean for a film to be sufficiently completed, and how does this relate to statutory termination of transfer? Paramount has expressed that it has no interest in settling, reflecting its likely belief that it did not need a license from the author of “Top Guns” in order to produce Top Gun Maverick, whether due to the timing of the termination of transfer or for other reasons. Regardless, it is notable to see a major news story and high-profile lawsuit involving termination of transfer. Many have lamented that statutory termination of transfer is rarely used due to its obscurity, context dependence, and how complicated the provision and its requirement are. Authors Alliance is optimistic that this renewed attention to termination of transfer could lead authors and other creators to explore whether termination of transfer might help them reach their dissemination goals, and we encourage our members to consider termination of transfer where appropriate. Once a termination of transfer has been affected, the author who terminated the transfer regains the rights she had previously handed over to her publisher or another party. In the case of the “Top Guns” author’s estate, the estate is now free to license the article to other parties (whatever the result of the current dispute might be).

Authors Alliance has a dedicated resource page on termination of transfer as well as a tool for authors to help them determine when they might be able to effectuate a termination of transfer and a template and guidance on effecting a termination of transfer. We have also published guest blog posts from authors on their experiences with termination of transfer. If you have experience with termination of transfer, please reach out to us at info@authorsalliance.org to share your story and help us bring more attention to this important but underused provision within copyright law.

Quantifying Copyright Reversion

Posted July 20, 2021

Authors Alliance is grateful to Cory Doctorow for sharing this piece, originally published on Pluralistic.net under a CC BY license. Doctorow is a science fiction author, activist and journalist. He is the author of many books, most recently Radicalized and Walkaway, science fiction for adults; How To Destroy Surveillance Capitalism, nonfiction about monopoly and conspiracy; In Real Life, a graphic novel; and the picture book Poesy the Monster Slayer. His latest book is Attack Surface, a standalone adult sequel to Little Brother.

At its outset, American copyright provided for 14 years of exclusivity, renewable for another 14 years by the author, but – crucially – not by the publisher. This was a shrewd move by the US Framers, because it meant the publisher had to convince the author to file paperwork.

Most authors have very little bargaining leverage at the outset of their publishing deals, and even when the author’s prior accomplishments afford them some bargaining power, a new book is, by definition, an unknown quantity, and the fair price for it is debatable.

Then (as now), the majority of works are no longer commercially viable after 14 years. But for authors of the minority of works that thrive over long terms, renewal is an opportunity to reopen publisher negotiations from a position of strength.

The author could say, “When I sold you this book, neither of us could say how it would fare, so you paid me a modest sum. 14 years later, it is earning for you, and if you wish to continue to enjoy exclusive rights to it, I demand that you share that bounty with me.”

If the publisher demurred, the author could simply walk away from the negotiations. The book’s copyright would not renew, other printers could produce their own editions at or near the marginal cost. The publisher would lose all, the author would be no worse off.

Some form of renewal endured in US copyright for many years, and even after it was abolished, US copyright retained a measure intended to address creators’ unbalanced negotiating power with their investors (studios, labels, publishers, etc): Reversion.

Essentially, US copyright lets creators to claim back their rights after 35 years (depending on the work’s age), even if their contracts are for longer terms. This right can’t be contracted away, either: a clause that says “I won’t ever revert my rights” is not enforceable.

Reversion could allow creators to renegotiate their deals, but it has other benefits. For scholarly authors – who must sign away all rights, for free, to publish in journals that charge fortunes for access – it’s a chance to get those works into the public domain.

For authors, it’s a partial answer to the conundrum of ebooks and print-on-demand, which have made contractual reversion obsolete (publishers historically gave your rights back when the book was out of print, but ebooks and PoDs are never out of print).

And for creators who were tricked into signing away their rights, it’s a chance to get them back.

But for all that, reversion is woefully rare, because the process is so complex, uncertain and obscure.

For years, the Authors Alliance has provided tools for creators seeking to revert their works, but even with this assistance, the process is daunting.

Efforts to improve the system have been hampered by a huge data-void. The US Copyright Office’s databases are woefully and infamously clunky, incomplete, out-of-date and under-resourced.

This is a crisis for all creators – if we want to sell our works, then having clear records of our claims on them is essential, first, so buyers can find us, and second, so we can prove that we have the right to sell.

The rights reversion data void hampers international efforts to improve copyright for creators, as in South Africa, where US entertainment cartels exploited the gap to sow fear, uncertainty and doubt in a bid to prevent South African authors from winning reversion rights.

Which is why “U.S. Copyright Termination Notices 1977-2020: Introducing New Datasets” represents such a milestone. A group of Australian scholars present the first ever comprehensive data on US copyright reversions.

The authors – Joshua Yuvaraj, Rebecca Giblin, Daniel Russo-Batterham, Genevieve Grant – scraped all Copyright Office data pertaining to reversion, painstakingly processed it, and published it. Here’s the data and here’s the codebooks.

The paper is up on SSRN, and has been accepted for publication in the prestigious Journal of Empirical Legal Studies. It’s an eye-popping read, and it reveals the truly dismal state – and vital necessity – of reversion.

Few creators have managed to revert but the ones that have are fascinating. Stephen King is a leading reverter, as are George RR Martin, Nora Roberts and David Eddings – successful authors who are able to claim back their works and seek new deals based on their track records.

A single YA author – Francine Pascal – accounts for nearly all the YA reversions, thanks to her reclaiming of all 305 of her Sweet Valley High novels (in kids’ books, Ann Martin attains another high-water mark for reverting the Baby-Sitters Club books).

But the most fascinating entry is funk titan George Clinton, who pursued his former manager Nene Montes for years, claiming he’d forged Clinton’s signature and defrauded him to steal the rights to most of Clinton’s prodigious and profitable catalog.

Thanks to reversion, Clinton was able to finally settle all question of title without expensive litigation – he simply reverted 1,413 works.

These are just the preliminary findings from this landmark, open-access dataset. Other researchers are encouraged to mine it further.

For policy-makers and creators’ advocates, this data finally puts a sound evidentially footing beneath the debate over reversion. US reversion does help creators, but it is badly hamstrung by needless complexity and poor record-keeping.

Improving reversion – simplifying it, or even making it automatic at 25 years – is a no-brainer if you want to improve creators’ share of the bounty of their most successful works.

Not coincidentally, Giblin (one of the authors) and I collaborated on THE SHAKEDOWN, a forthcoming book on how copyright, labor, contracting, and antitrust reforms could actually improve the creators’ share of the profits from their labor.

Spotlight on Rights Reversion & Termination of Transfer

Posted June 9, 2021

Readers familiar with Authors Alliance’s work will know that we offer a suite of resources to help authors get back the rights to their works, including information on how to revert rights by exercising a contractual provision or through negotiating with a publisher and resources on how to terminate a transfer of copyrights under U.S. law. Authors who get their rights back can increase their works’ availability and reach more readers by making an out-of-print book more widely available, releasing their work in a more affordable format or under an open access license, or re-packaging and releasing books with a new look and feel.

In today’s post, we’ve gathered some resources about the concepts of rights reversion and termination. Whether you are a rights back newbie or a reversion and termination aficionado, we think you’ll learn something new by digging into these resources.

Reversion & Termination Basics

Rights Reversion
Reversion can be a powerful tool for authors, but many authors do not know where to start. A right of reversion is a contractual provision that permits authors to work with their publishers to regain some or all of the rights in their books when certain conditions are met. But authors may also be able to revert rights even if they have not met the triggering conditions in their contract, or if their contracts do not have a reversion clause at all. Our guide to Understanding Rights Reversion arms authors with the information and strategies they need to get their rights back and give their books a new life. We also provide templates and guidance on how to craft a persuasive rights reversion request letter.

Termination of Transfer
In the United States, termination of transfer laws enable authors to regain rights in their works that might have been signed away—even if their contracts contain language prohibiting it. To learn more about termination of transfer and how to evaluate whether a work is eligible for termination under U.S. law, authors can explore the Termination of Transfer Tool, which we developed in partnership with Creative Commons. Authors can also refer to Authors Alliance’s guidance and templates for how to provide notice of termination to rightsholders and record the termination with the U.S. Copyright Office.

A Deeper Dive

Reversion of Copyright in Europe
Assembling three contributions from a special section of the European Intellectual Property Review, this paper examines the topic of rights reversion in the context of the adoption of the Directive on Copyright in the Digital Single Market (2019), which introduced a new right of revocation to the EU copyright framework entitling authors and performers to reclaim rights in their works when they are not being exploited (a “use-it-or-lose-it” principle). Included is an article by Ula Furgal which explains that there is a lack of understanding what “sufficient exploitation” means, especially in the digital context, which should be addressed when implementing the revocation right. Also included is an article by Elena Cooper which argues that the common law tradition of freedom of contract is compatible with constraints on contractual transfers, and that U.K. reversion provisions historically were a direct response to the significant increase in the copyright term in 1911.

Foreign Contracts and U.S. Copyright Termination Rights: What Law Applies?
Judge Richard Arnold and Professor Jane Ginsburg discuss the choice of law issues that arise when agreements which are subject to the laws of other countries assign U.S. copyrights and purport to do so in perpetuity. Arnold and Ginsburg examine the question of what law governs the permissible scope of an author’s grant in light of U.S. law’s inalienable termination rights. Using the recent U.S. and English cases, Ennio Morricone Music Inc. v. Bixio Music Group Ltd. and Gloucester Place Music Ltd v. Le Bon, to illustrate the problem, the authors conclude that U.S. termination rights cannot be overridden by a contract subject to a different law.

Making Sense of the Termination Right: How the System Fails Artists and How to Fix It
A report by Public Knowledge demonstrates how the termination right is failing to protect the very creators that termination was designed to serve. The report critiques the complex eligibility, timing, and filing formalities for termination, which are exacerbated by ambiguities in the law and its application. On top of the onerous procedural requirements, the report highlights power asymmetries governing the negotiation, assignment, and reversion of ownership rights that also harm authors—particularly creators of color—who seek to exercise their termination rights. The report recommends six policy actions to help restore fairness and functionality to termination of transfer rights.

Author’s Interest Project: Preliminary Findings on Benefits of Copyright Reversion
Preliminary findings from the Author’s Interest project suggest that granting authors minimum reversion rights would open new economic opportunities for authors and publishers and help promote ongoing availability to the public. The research suggests that there is a need to investigate minimum reversion rights addressing books that have reached the end of their commercial life, uses that are not being exploited, situations where publishers go into liquidation, and term limits akin to U.S. termination of transfer laws.

Q&A with Dr. Elizabeth Vercoe on Terminating Transfers of Copyright

Posted October 20, 2020

Photograph of Elizabeth Vercoe — photograph courtesy of Dr. Elizabeth Vercoe

Called “one of the most inventive composers working in America today” by The Washington Post, Dr. Elizabeth Vercoe has been a composer at the St. Petersburg Spring Music Festival in Russia, the Cité Internationale des Arts in Paris, and the MacDowell Colony. Her music is published by Noteworthy Sheet Music, Certosa Verlag (Germany), and Arsis Press and is recorded on the Owl, Centaur, Navona and Capstone labels. We recently sat down with Dr. Vercoe for a Q&A about her efforts to terminate the transfer of copyright to six of her nine early musical compositions published by Arsis Press, including Herstory II (1982).

Authors Alliance: Can you share why you were motivated to explore the possibility of terminating the transfers of copyrights for your works? What problem did you hope to solve?

Dr. Elizabeth Vercoe: As a composer of nine pieces published by Arsis Press, I was appalled when the successor publisher (Empire Publishing Services) ceased filling orders for our music and gave no notice or explanation for the apparent demise of the business. Because I was also a former associate editor of Arsis, I felt some responsibility for keeping the other composers informed and helping them in any way I could. We were unable to make copies of our own work legally since the press owned our copyrights, and we were unable to enter into recording contracts and other agreements without the consent of Empire. Moreover, Empire continued receiving half of our performance royalties from ASCAP and BMI while doing nothing for us. We were angry and upset at the injustice and decided to investigate what we could do about the situation.

AuAll: What steps did you take to initiate the termination of transfer process? Are there resources that you found particularly helpful?

EV: Initially we consulted several copyright lawyers to see what options were open to us to retrieve our copyrights. We were told that the lawyers could negotiate with Empire or they could facilitate copyright terminations for work eligible under current copyright law. On discovering the expense of even minimal action to negotiate with Empire or file copyright terminations for us, we were grateful that one attorney referred us to the website rightsback.org as a starting point for doing the work ourselves. We also studied the instructions for terminations on the Copyright Office website, pooled our information, and began helping each other with the paperwork.

We also spent a day at the Library of Congress looking through the 25 boxes of records of Arsis Press. The records were preserved by the library since the press is of historical interest as the first publisher in the U.S. devoted to women’s concert music. We hoped to find a contract between Arsis Press and the successor owner enumerating the terms of agreement. Unfortunately, we found no contract, and BMI was clear that it was obligated to continue to send half of our performance royalties to Empire.

AuAll: Do you have advice for other creators considering terminating their transfers of copyright? Are there things that policymakers could do to make copyright work better for creators?

EV: As a relatively naïve graduate student, I knew little or nothing about the risk of publication by a small press when Arsis Press began publishing my music. Someone could have suggested an additional sentence in a contract requiring that copyrights revert to the author if the press ceased doing business. If we had done this, we would have had some protection if the press failed. But nobody told any of the 40 composers published by Arsis Press that we should request such language in our contracts. I don’t think the founder of Arsis Press thought about this either or she would have insisted upon it. Organizations for composers like the Society of Composers and the International Alliance for Women in Music could help their members by providing guidance about such matters as could BMI and ASCAP.

“Orphan works” live in limbo after a press fails. Apparently, this is a massive problem for composers, film makers, and authors throughout the world as well as in the U.S. The Copyright Office has issued an extensive report about the matter that suggests solutions, primarily in the form of changes to the copyright law. However, the proposed copyright laws are themselves in limbo since Congress has not enacted the needed reforms. A future project could be organizing composers and authors to complain to their representatives in Congress about inaction on the proposed bill.

AuAll: Is there anything that you wish you knew prior to signing your early publication contracts, or that you would do differently today?

EV: Of course, we wish we had known how to protect our rights before signing contracts. All of us are now very wary of such agreements, but it is too late for the 140 works published by Arsis Press. In the case of the dozen composers in the catalog who are deceased, we know of only a few beneficiaries to fight their copyright battles for them. All we can do is proceed with copyright terminations for those works published 35 year ago or less in order to take advantage of the brief 5-year window allowed for such action under current law. But the process is complex and few of the composers are sufficiently persistent to jump over the hurdles required to file for terminations.

It is worth mentioning that there are some publishers who do not take ownership of copyrights for music in the first place. I am published by two of them: Certosa Verlag in Germany and Noteworthy Sheet Music in the U.S. Again, these are small presses like Arsis Press, but anyone published by them retains copyright ownership.

AuAll: When you do regain your rights, what do you hope to do with your musical compositions?

EV: Once my Arsis copyrights revert to me, I will either assign the music to the American Composers Alliance or publish with a company that allows me to retain the copyrights to my music. The ACA also has a legacy program that continues to keep one’s music available into the distant future, so at age 79 that is an attractive possibility for me as well.

* * *

We thank Dr. Vercoe for generously sharing her experiences and hope that her efforts inspire our members, readers, and allies to advocate for sound contract terms and to consider the options available—including termination of transfer and rights reversion—to ensure the long-term availability of their works. Authors can also consult the Authors Alliance/Creative Commons Termination of Transfer Tool at rightsback.org to learn more about termination of transfer.

For more about Dr. Vercoe’s experience with termination of transfers, we encourage readers to check out her article, The Perils of Publishing, in the Fall 2020 issue of the Journal of the International Alliance for Women in Music.

Authors Alliance Supports Copyright Office Proposal to Develop Termination Tools

Posted August 5, 2020

Authors Alliance has submitted comments to the U.S. Copyright Office in support of its proposal to develop sample templates for notices of termination and/or an online notice builder.

In the United States, termination of transfer laws enable authors to regain rights in their works that might have been signed away—even if their contracts contain language to the contrary. While termination rights are immensely important for authors and the public, termination rules are complicated and formalistic, which contributes to the underutilization of this important tool. The statutory provisions governing timing of the notice and termination windows, together with the regulations governing the information required in notices of termination, are complex. Adhering to these requirements can be especially burdensome to creators who are not represented by agents or attorneys.

Given Authors Alliance’s efforts to address these challenges by providing resources and tools to help creators understand how to evaluate whether and when a work might be eligible for termination and how to exercise termination rights, it will come as no surprise that we wholeheartedly support the Office’s proposal to develop sample templates for notices of termination and/or an online notice builder.

Authors Alliance commends the Copyright Office for giving consideration to developing resources to help creators properly effectuate their termination rights. Our comment invites the Office to look to our tools as a model for these efforts, and to count on Authors Alliance to support these efforts based on our experience developing termination of transfer resources for creators. With proper tools and guidance, we believe more authors will be able to terminate rights and make their works newly available.

To read our full comment, click here.

New Report on Termination Rights for Authors

Posted December 10, 2019

Last week, Public Knowledge released Making Sense of the Termination Right: How the System Fails Artists and How to Fix It, a report that explores the right of authors to terminate a copyright license or grant and regain rights in their works—even if their contracts contain language to the contrary.

The termination system was designed to protect authors and their heirs against unprofitable or inequitable agreements. But the report argues it is failing to protect the very people termination was designed to serve: artists and creators. According to Dylan Gilbert, Policy Counsel at Public Knowledge and co-author of the report, “Unfortunately, numerous problems—from legal cost and complexity and imbalances of power to scarce public information—are combining to create dysfunction in the system, which appears to be preventing artists from effectively using their termination right.”

The report critiques the complex eligibility, timing, and filing formalities for termination, which are exacerbated by ambiguities in the law and its application. On top of the onerous procedural requirements, the report highlights power asymmetries governing the negotiation, assignment, and reversion of ownership rights that also harm authors—particularly creators of color—who seek to exercise their termination rights.

The report recommends six policy actions to help restore fairness and functionality to termination of transfer rights:

Revise the Copyright Act so that the termination right vests automatically;

Revise the Copyright Act so that the termination right vests sooner than 35 years after a grant of rights under § 203 or 56 years after the copyright is first obtained under § 304;

Eliminate or revise the “work made for hire” exception or statutory definition;

Mitigate the need for artists to litigate ownership disputes prior to exercising their termination right by revising the statute of limitations or clarifying that the mere act of registering an adverse claim with the Copyright Office is not an effective repudiation of an ownership claim;

Address derivative works issues through statutory clarification; and

Conduct a formal study on the exercise and administration of the termination right, including the effects of the termination right on contract negotiation and renegotiation.

Click here to read the full report for more details on Public Knowledge’s recommendations to improve termination rights for authors.

Authors Alliance and our partners have created tools to help authors unpack the complex termination provisions. To learn more about termination of transfer and how to evaluate whether a work is eligible for termination under U.S. law, authors can explore the Termination of Transfer Tool, developed by Authors Alliance and Creative Commons. Authors can also refer to Authors Alliance’s guidance and templates for how to provide notice of termination to rightsholders and record the termination with the U.S. Copyright Office.

Authors Alliance Submits Brief Supporting Reversionary Rights in Canada

Posted December 10, 2018

photo by RonnyK | CC0

Canada’s Copyright Act, last updated in 2012 through the Copyright Modernization Act, is currently under review. In early 2018, Canada’s Standing Committee on Industry, Science and Technology adopted a work plan under which it is conducting a statutorily mandated review. Under this plan, the Committee invited written briefs from stakeholders. Today, Authors Alliance submitted a brief urging the retention of reversionary rights in Canada’s Copyright Act and recommending amendments to the provision that will enhance the utility of reversionary rights.

Under section 14(1) of Canada’s Copyright Act, any grant of interest in a copyrighted work made by an author (except for a grant made in a will) after June 4, 1921 automatically reverts to an author’s estate twenty-five years after an author’s death. Similar to the justifications for the termination of transfer provisions in U.S. law, the reversion mechanism is intended to address “a situation where a work, following the author’s death, had become more valuable over time,” giving the author’s heirs “the opportunity to re-negotiate the royalty terms to reflect the increased value of the work.”[1]

But reversionary rights also give creators the ability to give new life to works that have outlived their commercial lives but are nonetheless historically and culturally valuable. For creators who want their works to be widely shared and enjoyed, reversions are a powerful option for getting their works back out in front of audiences.

Because of the tremendous benefits of reversionary rights for authors and the public, Authors Alliance’s brief recommends retaining a reversionary right provision in the Copyright Act of Canada. To further maximize the benefits of the current provision, our brief also recommends several changes to Section 14(1):

Amending Section 14(1) to allow authors to terminate transfers of copyright a set number of years after the transfer of those rights;
Requiring triggering conditions and/or recordation of ownership information if rights are reverted exclusively to the author, while allowing reversion of non-exclusive rights to the author remain automatic; and
Amending Section 14(1) to make it clear that reversionary rights do not apply to non-exclusive licenses.

Read more about our recommendations by viewing the document below or clicking here to download the brief. For more about termination of transfer under U.S. law, visit the Authors Alliance/Creative Commons Termination of Transfer Tool at rightsback.org and the Authors Alliance termination of transfer resource page.

20181210_AuAll_CA_Review_Termination

[1] A.A. Keyes, Copyright in Canada Proposals for a Revision of the Law 76 (Apr. 1977).

Everything he does, he does it for us. Why Bryan Adams is on to something important about copyright

Posted September 26, 2018

The following post, by Authors Alliance founding member Rebecca Giblin, originally appeared in The Conversation under a CC-BY-ND license. Read more of Giblin’s work on the effects of copyright duration on creators in her recent paper, “A New Copyright Bargain? Reclaiming Lost Culture and Getting Authors Paid.”

Rebecca Giblin, Monash University

Last Tuesday Bryan Adams entered the copyright debate.

That’s Bryan Adams the singer and songwriter, the composer of “(Everything I Do) I Do It for You”, and “Summer of ’69”.

Authors, artists and composers often have little bargaining power, and are often pressured to sign away their rights to their publisher for life.

Adams appeared before a Canadian House of Commons committee to argue they should be entitled to reclaim ownership of their creations 25 years after they sign them away.

No control until after you are dead

In Canada they get them back 25 years after they are dead, when the rights automatically revert to their estate. In Australia our law used to do the same, but we removed the provision in 1968. In our law, authors are never given back what they give away.

Some publishers voluntarily put such clauses in their contracts, but that is something they choose to do, rather than something the law mandates.

Australia’s copyright term is long. For written works it lasts for 70 years after the death of the author. It was extended from 50 years after death as part of the Australia-United States Free Trade Agreement.

What copyright is for

It is meant to achieve three main things: incentivise the creation of works, reward authors, and benefit society through access to knowledge and culture.

Incentive and reward are not the same thing.

The incentive needn’t be big

The copyright term needed to provide an incentive to create something is pretty short.

The Productivity Commission has estimated the average commercial life of a piece of music, for example is two to five years. Most pieces of visual art yield commercial income for just two years, with distribution highly skewed toward the small number with a longer life. The average commercial life of a film is three to six years. For books, it is typically 1.4 to five years; 90% of books are out of print after two years.

It is well accepted by economists that a term of about 25 years is the maximum needed to incentivise the creation of works.

But the rewards, for creators, should be

The second purpose is to provide a reward to authors, beyond the bare minimum incentive needed to create something. Quite reasonably, we want to give them a bit extra as thanks for their work.

But, in practice authors, artists and composers are often obliged to transfer all or most of their rights to corporate investors such as record labels or book publishers in order to receive anything at all.

In the film and television industries it is not unusual for creators to have to sign over their whole copyright, forever – and not just here on Earth but throughout the universe at large.

It means investors don’t just take what is needed to incentivise their work but most of the rewards meant for the author as well.

This isn’t new. Creators have been complaining since at least 1737 that too often they have no choice but to transfer their rights before anyone knows what they are worth.

Other countries do it better

In recognition of these realities, many countries, including the US, have enacted author-protective laws that, for example, let creators reclaim their rights back after a certain amount of time, or after publishers stop exploiting them, or after royalties stop flowing. Other laws guarantee creators “fair” or “reasonable” payment.

Australia stands out for having no author protections at all.

Canada’s law already protects authors by giving rights back to their heirs 25 years after they die. Bryan Adams’s proposal is to change one word in that law. Instead of copyright reverting to the creator 25 years after “death”, he wants it to revert 25 years after “transfer”.

Copyright is meant to be about ensuring access

Handing rights back to creators after 25 years would not only help them secure more of copyright’s rewards, it would also help achieve copyright’s other major aim: to promote widespread access to knowledge and culture.

Right now our law isn’t doing a very good job of that, particularly for older material.

Copyright lasts for so long, and distributors lose financial interest in works so fast, that they are often neither properly distributed nor available for anyone else to distribute.

In the book industry my research into almost 100,000 titles has found that publishers license older e-books to libraries on the same terms and for the same prices as newer ones. That includes “exploding” licences which force books to be deleted from collections even if nobody ever borrows them.

Publishers are interested in maximising their share of library collections budgets, not ensuring that a particular author continues to get paid or a particular title continues to get read.

As a result libraries often forgo buying older (but still culturally valuable) books even though they would have bought them if the publisher cared enough to make them available at a reasonable price.

Restricting access to books is not in the interests of authors or readers.

…and directing rewards where they are needed

If rights reverted after 25 years, as I have proposed and as Adams now proposes, authors would be able to do things like license their books directly to libraries in exchange for fair remuneration – say $1 per loan.

If authors weren’t interested in reclaiming their rights, they could automatically default to a “cultural steward” that would use the proceeds to directly support new creators via prizes, fellowships and grants – much like Victor Hugo envisaged with his idea of a “paid public domain” back in 1878.

We could do it all without changing the total copyright term imposed on us by the Australia-US Free Trade Agreement and other treaties. We could get creators paid more fairly while keeping Australian culture alive.

Reversion is the key.

Rebecca Giblin, ARC Future Fellow; Associate Professor, Monash University

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Authors Alliance & Creative Commons Team Up for CopyTalk Webinar on Termination of Transfer

Posted August 29, 2018

On Thursday, September 6, Authors Alliance Executive Director Brianna Schofield will be joined by Diane Peters, General Counsel at Creative Commons, to present the American Library Association’s monthly CopyTalk webinar. The topic will be “Helping Authors Get Rights Back Through Termination of Transfers.”

Creators who enter into publishing agreements are often asked to sign away their copyrights before anyone knows their worth and in circumstances where they have little choice but to acquiesce. In the U.S., statutory termination of transfer provisions allow creators to regain copyrights they signed away decades ago. With rights back in hand, creators can get their works in front of new audiences by, for example, sharing their works using Creative Commons licenses or by negotiating new agreements with publishers. In this CopyTalk, Authors Alliance and Creative Commons will showcase our Termination of Transfer tool at rightsback.org and related resources that help authors understand and exercise termination of transfer rights.

This free webinar will take place at 2:00 PM Eastern / 11:00 AM Pacific. For more information and to register, visit the CopyTalk event page. We hope you’ll join in for this important discussion of authors’ rights!