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 may, of course, require Congress to make conforming amendments elsewhere in the statutory text.

Would this amendment upset the existing balance of power as between authors and publishers? It is difficult to see how the amendment would give an unscrupulous licensee any new power to “game the system” to its own advantage. The worst apparent risk is that a licensee might pressure an author to release her work under an open-content license (or to the public domain) at the expiration of a defined initial period of exclusive license to the licensee. If the licensee enjoys a period of exclusive use of the work, and the work then becomes available to the public, the original licensee may continue exploiting the work without fear of termination under the amendment proposed above. But the public at large would enjoy precisely the same privilege following the expiration of the exclusive license. Thus, not only does the licensee not gain a greater advantage under this arrangement, it actually yields a benefit to the commons—precisely the reason why it makes sense to protect such licenses from termination.

As an alternative to crafting its own termination exception for opencontent licenses, Congress might delegate that task to a federal agency. For example, consider the following proposed new § 203(a)(6):

"The Librarian of Congress, upon recommendation of the Register of Copyrights, shall promulgate annually a listing of licensing instruments that it finds to grant copyright rights to the public at large, and such licensing instruments shall not be subject to termination under this section."