Page:Shrinking the Commons.djvu/61

Rh Complicating either approach will be the need to protect open-content licenses against termination, while not preventing authors who made unremunerative bargains from exercising their termination rights. The foregoing discussion suggests two conceptual constructs upon which Congress might draw to ensure that any open-content termination exception does not swallow the general rule. First, Professor Loren’s proposal for a modified doctrine of copyright abandonment, while perhaps ill-matched to existing precedent, nevertheless draws a useful line: she proposes to exclude licenses that overtly and clearly grant rights to the public from the operation of the statute’s termination provisions. Second, the very brief statutory provision on patent abandonment also limits the reach of intellectual property rights in circumstances where the author clearly intended to give up the right of proprietary exploitation.

To consider one possibility, Congress might add the following provision as a new paragraph 203(a)(6) of the statute:

"No abandonment by an author of any of the exclusive rights comprised in a copyright, in whole or in part, including under the terms of nonexclusive licensing instruments that grant such rights to unnamed licensees, shall be subject to termination under this section."

Limiting the exception to abandonments “by an author” would ameliorate the risk, identified by Professor Kreiss, that certain actions by downstream licensees may permanently restrict authors’ rights. The words “including” and “in whole or in part” are aimed at assuring the permanency of dedications to the public domain and at allowing partial abandonments. The reference to “unnamed licensees” is one way of distinguishing what Professor Loren refers to as grants “to the public” from more conventional transfers (such as in the Superman case) from one party to another; other language might certainly be chosen to effectuate a similar distinction. The reference to “abandonment” may be thought to introduce ambiguity, but the legislative history should simply clarify that the concept is drawn from the Patent Act. Adding a new termination exception for open-content licenses