Ginsburg, Jane C. --- "Authors’ transfer and license contracts under U.S. copyright law" [2013] ELECD 173; in de Werra, Jacques (ed), "Research Handbook on Intellectual Property Licensing" (Edward Elgar Publishing, 2013) 3

Book Title: Research Handbook on Intellectual Property Licensing

Editor(s): de Werra, Jacques

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781849804400

Section: Chapter 1

Section Title: Authors’ transfer and license contracts under U.S. copyright law

Author(s): Ginsburg, Jane C.

Number of pages: 26

Abstract/Description:

The U.S. Constitution empowers Congress to “secur[e] for limited times to authors … the exclusive right to their … writings”.2 Accordingly, the U.S. Copyright Act generally vests creators with the copyright in their works.3 The Constitution makes no explicit reference to authors’ subsequent transfers of their exclusive rights, but the patent-copyright clause’s adoption of the phrase “limited times” appears to hark back to the policy underlying the dual periods of duration established by the first copyright act, the 1710 English Statute of Anne.4 Parliament there provided that, should the author still be living at the end of the initial 14-year copyright term, “the sole right … shall return to the Authors” for an additional 14-year term. The statutory reversion of rights evidences Parliament’s awareness that authors would likely assign all their rights during the first term; “return[ing]” the rights to the authors would enable them to profit from their works’ commercial success.5 In the U.S. Constitution, the phrase “limited Times”, and the first copyright act’s implementation of a second 14-year period of copy- right conditional upon the author’s survival through the first 14-year term,6 thus suggests that the Framers were similarly cognizant of authors’ alienation of their rights, and similarly sympathetic to authors’ need for a fresh start. But the Constitution does not otherwise address the scope of authors’ contractual grants. By the same token, the first U.S. copyright act constrained the form of the contract by requiring a signed and witnessed writing,7 but in no way regulated its substance.