New reg proposed for copyright termination of pre-1978 transfers of works created after Jan 1, 1978

The United States Copyright Office has proposed a new regulation concerning copyright termination notices. One of the termination provisions of the Copyright Act permits authors to recapture ownership of the copyrights to works they created but transferred to others after the current Copyright Act became effective on January 1, 1978. The law is unclear about whether this provision of the law permits authors to terminate pre-1978 transfers of works that weren't actually created until after January 1, 1978. This sort of thing would have happened, for example, when authors transferred their copyrights to works they had not yet created, but would be creating during the term of the contracts they were signing. According to some people, including law professors Jane Ginsburg (Columbia) and Neil Netanel (UCLA), and some copyright lawyers, including Ken Freundlich and Bill Gable, pre-1978 transfers of works created in and after 1978 did not become effective until the works were actually created, so authors should be able to terminate those transfers. On the other hand, the RIAA contends that the Act permits transfers to be terminated only if they were signed after January 1, 1978, so that pre-1978 transfers may not be terminated. The dispute boils down to one of terminology: whether a transfer is "executed" as soon as it's signed, or only when the transfer becomes effective. The Copyright Office has issued a Notice of Proposed Rule Making indicating its intention to
record a notice of termination in such a case so long as the notice states that the grant was executed on . . . on or after January 1, 1978. . . . The
Office’s recordation of such notices of termination is without prejudice as to how a court might ultimately rule on whether the document is a notice of termination within the scope of section 203 [the post-1978 termination provision].