RE: The Era of Perpetual Copyright

On Fri, 24 Jan 2003, Terry Carroll wrote:

> On Thu, 23 Jan 2003, Lance Purple wrote:
>
> > What about the new provision that lets authors take back any transferred
> > rights after 70 years? Is that an unconstitutional taking from whoever
> > purchased those rights?
>
> It's not 70 years; it's either 35, 56 or 75, depending which termination
> you're talking about.
>
> It's not a taking (or, a better target, an impairment of contract),
> because Congress, when enacting the term extension, enacted it *with* the
> termination. The transferee never had any of those years that the author
> can take back.

What I'm thinking of is: suppose prior to 1978, someone buys a perpetual license to exploit a work in some way, such as by creating and selling derivative works. They'd expect that they could keep exercising that right until the copyright expires, after which they could keep creating and selling derivative works because the original work would be public domain.

But because of the 1978 changes, they'll now likely have those rights terminated, and no longer be able to create or sell the derivative works (even ones created before 1978) without first negotiating a new license (which the terminator is under no obligation to provide, despite the prior "perpetual" license).

Would that scenario qualify as a taking or impairment of contract?

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