|
One of the primary values
of owning copyright rights is the ability to transfer some or all of those rights to third parties.
These transfers can be for all of the copyright rights in a work (which is generally referred to as an
outright assignment), or can be for a limited portion of the rights provided by the Copyright Act
(which usually take the form of copyright licenses).
The BitLaw discussion of assignments
and licenses is divided into the following four sections:
     
Transfers in General:
Copyright is a personal property right, and it is subject to
various state laws and regulations that govern the ownership,
inheritance, or transfer of personal property. It is probably best to view copyright
as a bundle of rights. The rights included in that bundle
are the rights granted by the U.S. Copyright Act, as described in the BitLaw discussion on
the scope of copyright protection.
Any or all of these rights, or any subdivision of those
rights, may be transferred.
A transfer of one of these rights may be made on an exclusive
or nonexclusive basis. The transfer
of exclusive rights is not valid unless that transfer is in writing
and signed by the owner of the rights conveyed. Transfer of a right on a nonexclusive
basis does not require a written agreement. For example, the author of a novel, as the original copyright
owner of the novel, could transfer to a publisher
the exclusive right to copy and distribute a novel (under the right of
reproduction and
distribution), and also grant a screen play writer the
nonexclusive right to create a movie script based on that novel (under the right to create
derivative works). The author's agreement
with the publisher would have to be in writing to be valid. However, the agreement
with the screen play writer could be oral and still be enforceable.
A transfer of copyright rights is usually either an assignment or a license. An assignment of copyright
rights is like the sale of personal property. The original owner sells its rights
to a third party, and can no longer exercise control over how the third party uses those rights. A
license (or more properly "an express license") is an agreement where the copyright owner maintains
its ownership of the rights involved, but allows a third party to exercise some or all of those rights
without fear of a copyright infringement suit. A license will be preferred over an assignment
of rights where the copyright holder wishes to maintain some ownership over the rights, or wishes
to exercise continuing control over how the third party uses the copyright holder's rights.
A typical software license agreement is a copyright license agreement. The owner of the copyright
in the software wishes to grant the end-user the right to utilize the software in a restricted manner. In
return, the end-user may agree to limit its use of the software in a variety of ways and to pay
a license fee payment to the copyright owner.
Implied Licenses:
An implied copyright license is a license created by law in the absence of an actual agreement
between the parties. Implied licenses arise when the conduct of the parties indicates that
some license is to be extended between the copyright owner and the licensee, but the parties
themselves did not bother to create a license. This differs from an express license in
that the parties never actually agree on the specific terms of the license.
The purpose of an implied license is to allow the licensee (the party who licenses the work
from the copyright owner) some right to use the copyrighted
work, but only to the extent that the
copyright owner would have allowed had the parties negotiated an agreement. Generally,
the custom and practice of the community are used to determine the scope of the implied license.
Implied licenses have been used to grant licenses in situations where a copyrighted work
was created by one party at the request of another. In one case, a special effects company
was hired to create a specific effect for a horror movie. The contract through which
the special effects company was hired did not assign the copyright in the effect, and
did not provide for a license for the effect to be used in the horror movie. The court
ruled that the effect could be used in the horror movie through an implied license,
since the effect was created with the intent that it be used and distributed in the movie.
A commonly discussed scenario where implied licenses are destined to play a major role
is on the World Wide Web. When a Web page is viewed in a Web browser, the page
is downloaded through the Internet and placed on the user's screen. It is clear that a copy
of the Web page is being made by the user. It is also clear that the Web page is protected
against unauthorized copying by copyright law. But it would not make sense to allow the
author of a Web page to sue a user who viewed her page, since the author intended that the page
be viewed by others when she placed it on the World Wide Web. Rather, attorneys argue, courts
should find that the Web page author has given end users an implied license to download and view
the Web page. The extent of this implied license is unclear, and may someday be defined
by the courts.
Termination of Transfers:
Although a copyright owner is free to transfer her copyright rights as she sees fit, the Copyright
Act contains a non-revocable right for a copyright owner to terminate any copyright transfer.
The purpose for this is to give the
creator of the work or the creator's heirs a second chance to exploit the work in situations where the
value of the work may have been significantly enhanced since
the original transfer. Generally, there is a five year window of time to accomplish
the termination beginning either at
- 35 years from the assignment if the transfer was made on or after January 1, 1978; or
- 56 years from the date copyright was originally secured if the transfer was made before
January 1, 1978.
The ability to terminate a transfer cannot be negotiated away. Thus, the author of a valuable
book has the right to reclaim the copyright in the book by terminating the transfer, even
if the agreement signed by the author stated that the assignment of her copyright rights was
permanent and irrevocable. Exceptions to this ability to terminate a transfer are made for those parties
who created derivative works prior to the termination (see the BitLaw discussion on
derivative works for more information on this subject).
In addition, works made for hire are not subject to this termination of transfer right (works made
for hire are discussed in the BitLaw section on copyright ownership).
Recordation of Transfers:
A document that transfers copyright ownership or any other document
pertaining to a copyright may be recorded in the Copyright Office.
Although recordation is not
required to make a valid transfer of a copyright, recordation of the transfer document does
provide certain legal advantages and may be required to validate
the transfer as against third parties.
|
All
----------
PATENTS
Overview
Software
Statute
Regulations
M.P.E.P.
----------
TRADEMARKS
Overview
Statute
Regulations
T.M.E.P.
----------
COPYRIGHTS
Overview
Statute
Regulations
----------
INTERNET LAW
Go To
----------
Patent Overview
Software Patents
Patent Statute
Patent Regulations
M.P.E.P.
----------
Trademark Overview
Trademark Statute
Trademark Regulations
T.M.E.P.
----------
Copyright Overview
Copyright Statute
Copyright Regulations
----------
Internet Law Overview
