Copyright Termination And Technical Standards

Technical standards, which enable products manufactured by different vendors to work together, form the basis of the modem technological infrastructure. Yet an obscure provision of the U.S. Copyright Act, enacted to allow authors and composers to profit from the later success of their works, now threatens to disrupt this critical technological ecosystem. Enacted in 1976, Section 203 of the Copyright Act permits the author of a copyrighted work to revoke any copyright license or assignment between thirty-five and forty years after the grant was made. For grants made in 1978, the first year to which Section 203 applies, terminations could first be made in 2013, and in the music and publishing industries such terminations, and the concomitant litigation, have already begun. Technical standards are also treated as copyrightable works, and arguably the provisions of Section 203 apply to them. Numerous standards published in 1978 are still in use, and each year the number of standards potentially subject to Section 203 termination will grow. But unlike the composers and authors whom Section 203 was intended to protect, contributors to technical standards are usually engineers employed by large corporations, research institutions, or government agencies who make such contributions without additional compensation. Standards are thus unburdened by the copyright royalty obligations that characterize musical compositions, books, and other works of authorship. The termination of customary royalty-free copyright licenses granted by contributors to standards organizations or their heirs could thus have a significant disruptive effect on the standardization process and impose a substantial new cost on industries that are standards-dependent (a cost most likely to be passed through to consumers). The application of Section 203 to technical standards, however, is not straightforward. This article, for the first time, assesses Section 203 in terms of its applicability to technical standards documents. In particular, it analyzes considerations of joint authorship, works-made-for-hire, and derivative works under Section 203 to an area that was clearly not contemplated by Congress when it enacted the statute. We conclude that, although Section 203 is theoretically applicable to technical standards, several statutory obstacles would impede the wholesale termination of standards-related license grants. Nevertheless, in order to avoid costly and time-consuming litigation, we recommend that Congress or the courts explicitly acknowledge the inapplicability of Section 203 to technical standards