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The various creative commons licenses and various copy-left and similar licenses all claim to be "perpetual" or "irrevocable" -- to last for the term of the copyright. For example, the CC-BY 4.0 license says:

Subject to the terms and conditions of this Public License, the Licensor hereby grants You a worldwide, royalty-free, non-sublicensable, non-exclusive, irrevocable license to exercise the Licensed Rights in the Licensed Material

The other CC license include a similar provision.

But 17 USC 203 says:

In the case of any work other than a work made for hire, the exclusive or nonexclusive grant of a transfer or license of copyright or of any right under a copyright, executed by the author on or after January 1, 1978, otherwise than by will, is subject to termination under the following conditions

...

(3) Termination of the grant may be effected at any time during a period of five years beginning at the end of thirty-five years from the date of execution of the grant; or, if the grant covers the right of publication of the work, the period begins at the end of thirty-five years from the date of publication of the work under the grant or at the end of forty years from the date of execution of the grant, whichever term ends earlier.

(4) The termination shall be effected by serving an advance notice in writing, signed by the number and proportion of owners of termination interests required under clauses (1) and (2) of this subsection, or by their duly authorized agents, upon the grantee or the grantee’s successor in title.

This document from the US Copyright office describes the law and the process under it. So does this article from WIPO magazine. This short article from a law office summarizes the provisions of Sections 203 and 304 of Title 17 (the US Copyright Law). This article from the Author's Guild summerizes the law from the POV of a literary author.

Given this provision, how can such licenses for US works plausibly claim to be "irrevocable"? Cannot the author or rights-holder terminate any such license after 35 years under this procedure?

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  • Huh. If that means what it appears to say, the implications are significant. If Joe bought a software license from the author in 1983, and he's still using it for some critical system, can the author send him a letter and make him stop (or demand $$$ for a new license)? If Sally published a scientific article in 1983, can she send a letter to the journal and demand that it be taken off their website? Those seem... troubling. If this is really the effect of this law, I'm surprised it isn't more widely known.
    – Nate Eldredge
    Feb 20, 2019 at 4:19
  • I think that is exactly the effect, but few authors choose to use this right. Note that under the old copyright law of n1909, authors had a similar right of termination when a copyright came up fo0r renewal, so this is not entirely new.
    – David Siegel
    Feb 20, 2019 at 6:25

1 Answer 1

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This article notes that the era of copyright recapture began on January 1, 2013, and cites a successful revocation of a license grant (Scorpio Music S.A. v. Willis), a case complicated by multiple authorship. In fact, 17 USC 203(a)(5) guaranteed the right to terminate a license even when there is a contract:

Termination of the grant may be effected notwithstanding any agreement to the contrary, including an agreement to make a will or to make any future grant.

It might be difficult to comply with 17 USC 203(a)(4), in the case of GPL, or off-the-shelf software:

(4) The termination shall be effected by serving an advance notice in writing, signed by the number and proportion of owners of termination interests required under clauses (1) and (2) of this subsection, or by their duly authorized agents, upon the grantee or the grantee’s successor in title.

(A) The notice shall state the effective date of the termination, which shall fall within the five-year period specified by clause (3) of this subsection, and the notice shall be served not less than two or more than ten years before that date. A copy of the notice shall be recorded in the Copyright Office before the effective date of termination, as a condition to its taking effect.

(B) The notice shall comply, in form, content, and manner of service, with requirements that the Register of Copyrights shall prescribe by regulation.

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  • If there was a contract, I guess the buyer would still be entitled to damages? Which would make the copyright holder think twice before executing the right to terminate?
    – Greendrake
    Feb 20, 2019 at 5:57
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    @Greendrake I don't think so. I belive that any contract or agreement which would have the effect of extending a grant or license or of penalizing the excersize of the termination roight, would be held voidable, as not consistent with the "notwithstanding any agreement to the contrary" provision quoted above.
    – David Siegel
    Feb 20, 2019 at 6:23
  • Note that under the old copyright law of n1909, authors had a similar right of termination when a copyright came up for renewal, so I don't think it is quite correct to say that the "era of copyright recapture has begun" -- it started long before.
    – David Siegel
    Feb 20, 2019 at 6:27
  • @Greendrake a term that is in contravention of the law (as this is) is void and so you can't 'breach' it. However, a suit for misleading and deceptive conduct could succeed.
    – Dale M ♦
    Feb 20, 2019 at 23:37

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