Presentation at Fifth Global Congress on Intellectual Property and the Public Interest

1. Two Rights Can Fix a Wrong:
How Termination of Transfer and Rights Reversion
Benefit Creators and the Public
Fifth Global Congress on IP and the Public Interest - September 29, 2018
Brianna Schofield
Executive Director,
Authors Alliance
@Auths_Alliance
Diane Peters
General Counsel,
Creative Commons
@creativecommons
Presentation licensed under CC BY 4.0
Images licensed as indicated
Rehad Desai
Executive Committee,
ReCreate

2. Agenda
● Why get rights back?
● How to get rights back
○ Rights reversion
○ Termination of transfer (U.S.)
○ International laws
● Author Tools
● Stepping Back: How does rights back fit in
the broader copyright ecosystem?
● Questions and Discussion
CC0 - PublicDomainPictures

4. Why Get Rights Back?
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5. Why get rights back?
New Editions of Books Currently Available on Amazon (by
decade)
Graph adapted from Paul Heald, How Copyright Keeps Works Disappeared

6. J.D. Salinger
Photo by Lotte Jacobi
Why get rights back?
Margaret Mitchell
Photo by New York World-Telegram and the Sun
photographer Aumuller, Al
John Steinbeck
Photo by McFadden Publications, Inc.;
no photographer credited
Margaret Wise Brown
Photo by Consuelo Kanaga
Ralph Ellison
Photo by United States Information Agency
staff photographer

7. Even Bryan Adams thinks rights back is good for creators!
CC-BY 2.0 - Derek Hatfield

10. Why get rights back?
The opportunity to recapture rights allows creators
to:
● Give new life to works that have outlived their
commercial lives (by, for example, releasing
them to the public on open terms)
● Renegotiate contracts and enjoy more of their
works’ financial success

11. How to Get Rights Back
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12. Rights Reversion

13. Rights Reversion
● A right of reversion is a contractual
provision permitting an author to regain
some or all of the rights in her book from
her publisher when its triggering
conditions are met.
● Authors can still negotiate with their
publishers in the absence of a contractual
clause.
● Our rights reversion materials are free to
download at
authorsalliance.org/resources/
rights-reversion-portal/

14. Termination of Transfer
(U.S.)

15. Termination of Transfer
● Statutory right to get your rights back
after a period of time passes
● § 203, § 304(c) or § 304(d) of the U.S.
Copyright Act
● Five-year window starts 35, 40, 56, or 75
years from triggering event, depending
on circumstances
○ E.g., Under § 203, a transfer executed on or
after Jan. 1, 1978, agreement is generally
terminable 35 years from date it was signed
(or, if it covers the right to publish the work, 35
years from publication or 40 years from
execution, whichever ends earlier)
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16. Authors Alliance/Creative Commons
Termination of Transfer Tool (ToT Tool) at rightsback.org

17. Termination of Transfer Tool

18. Termination of Transfer: Notice Templates
● In order to effectuate a termination right,
authors must serve notice on the party whose
grant is being terminated 2-10 years before the
termination date.
● Authors must also submit a copy of that notice of
termination to the U.S. Copyright Office, with
cover form and fee.
● Templates for and information about notices of
termination available at:
authorsalliance.org/resources/
termination-of-transfer/

19. International Termination Laws

20. Termination and Reversion Rights Globally
● Other countries’ laws contain statutory rights that allow authors to reclaim or
have their rights returned
● Generally, come in two flavors:
○ Automatic reversion: e.g., in Canada, assignment or grant of the copyright
in certain works terminates 25 years after the death of the author, and
reverts to the author's estate
○ Termination upon demand: e.g., in Poland, an author has a right to
renounce or terminate the contract and claim the damage, if the acquirer
of the author's economic rights or the licensee does not start the
dissemination of the work within the agreed time limit
● Other variables

21. Moral Rights as Termination Rights
● Exist most often in civil law countries as part of copyright law
● Means by which an author can control uses of their works, possibly regain
● Typically not transferable or licensable
● Examples
○ Attribution, or anonymity
○ Prohibiting alterations without permission
○ How the work is displayed
○ Withdrawal of the work altogether

23. What’s the Rights Back Resource?
● Searchable database of termination rights in all countries
● Aggregates
○ Laws (enacted and pending/proposed)
○ Case law and administrative decisions
○ Scholarly articles and resources
○ Links to termination tools and guides currently U.S. and Poland)
○ Other information, including submitters of content if provided
● Consider contributing!

26. Author Tools
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27. Author Tools
● Rights reversion (contractual or negotiated)
● Statutory termination rights - automatic or on
demand; moral rights
● Author Addenda (e.g. CC SCAE)
● University OA policies (e.g. MIT)
● Foundation OA policies (e.g., Wellcome,
Hewlett)
● BE BOLD AND ASK , especially when
○ Out of print
○ Not actively marketing, especially to non
competitive audiences
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CC BY Ali Edwards

28. Stepping Back
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29. CC0 - RobinHiggins

30. Questions/Discussion
Brianna Schofield
Executive Director, Authors
Alliance
brianna@authorsalliance.org
Diane Peters
General Counsel,
Creative Commons
diane@creativecommons.org
Rehad Desai
Executive Committee,
ReCreate
rehad@icon.co.za