It is possible to assign copyright in Australia from one person to another or to license it for other people to use. Copyright in Australia is not a single right but a bundle of rights which grants the copyright owner the exclusive right over their work. Unlike many other countries, copyright protection in Australia is automatic and requires no formal registration. Under section 196(3) of the Copyright Act 1968 (Cth), the copyright owner affects an assignment or license by signing an agreement. This article sets out the differences between a copyright licence and a copyright assignment.
What is a Copyright Licence?
A copyright licence (or copyright clearance) allows another person or party to use the copyright without transferring ownership. A copyright licence should be clearly drafted to set out the terms and conditions of the agreement. In addition to the details about who the rightsholder and copyright holder are, it should precisely identify the copyright material the assignee/licensee will copy. For example, if the copyright material is a part of a website, it should specifically describe which part of the work (e.g. the text in a certain textbox on a particular page). The licence should also explain how the assignee/licensee will use the copyright material, including distribution and whether the work will produce revenue while being licensed.
A licence for copyright material can often be very detailed, so it is important to have a lawyer specialising in copyright look over the terms including whether any warranties apply. There are also different types of licences that are available, including:
- Exclusive licence: A licence that only permits the licensee to use the copyright material the licence covers.
- Sole licence: A licence that permits the licensee to exercise an exclusive right of the copyright owner about the material, except the copyright owner.
- Non-exclusive licence: A licence that allows someone to continue to use the licensor’s copyright material in their existing manner while also allowing others to use it as well.
- Implied licence: Where the copyright owner permits the use of the material as implied from the circumstances surrounding it.
What is a Copyright Assignment?
A copyright assignment is a transfer of ownership. When copyright is assigned, the person who receives the transfer of the copyright becomes the new owner. For an assignment to take place, it must be made in writing, whether by deed or agreement. A deed of assignment is a document where the assignor assigns or transfers any rights. The most common forms of assignment in copyright are in literary works and rights in patentable inventions. It is possible to assign copyright to material yet to exist if there is an agreement by the person otherwise considered the owner of the material.
Copyright Assignment and License Limitations
It is possible to add limitations or conditions onto an assignment or licence to restrict its use. For example, you can limit the use of the copyright:
- By geography (e.g. in Australia only);
- By a period (e.g. for 12 months only);
- By sub-license (e.g. allowing the licensee to allow others to use the material);
- By the rights in which they apply (e.g. to publish online only); or
- By requirements for payment (e.g. flat-fee, periodic fee or on a royalty basis).
Copyright infringement takes place when someone exploits a work (whether copying it without permission or commercially making a profit) without the copyright owner’s permission. If someone has licensed your work without your knowledge, or assigned it beyond the agreed terms, this may be considered an infringement of your intellectual property rights. You can seek an injunction from the court to restrain the infringer from reproducing the work or an order to seize the offending material.
There is no requirement that a copyright licence is in writing unless you are entering into an exclusive licence. Copyright law, however, explicitly states that an assignment is written (not verbal). The copyright right owner must also sign the assignment, or receive a standard form contract (for example, agreed to by an exchange of emails). Finally, the copyright assignment or licence should specify what work the copyright owner is assigning. The agreement itself does not need to list the assigned works – a schedule attached to the agreement can refer to these instead. If you have any questions or need assistance drafting an assignment or license agreement, get in contact with our copyright lawyers on 1300 544 755.
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