If you are the owner of copyrighted material, you may want to allow someone else to use your work. For example, if you are an author, you will have to allow your editor to modify your work when publishing it. This transfer of copyright can occur through an assignment or a licence. This article will explain the key things you should consider when looking to transfer the ownership of your copyright.

What is Copyright?

Owners of copyrighted material have various exclusive rights to interact with their original material.

For example, an author of a literary work has the exclusive right under copyright to:

  • reproduce or make copies of the novel;
  • have it read aloud for an audiobook;
  • turn it into a play; and
  • have that play performed.

When granting someone else the rights to your copyrighted material, you will need to consider the intended use of the copyright.

For example, a rock band may want to retain the rights to distribute their album. However, they might be happy to allow a symphony orchestra to adapt their songs for a live performance.

It is important to consider which aspects of your copyrighted material that you are happy to grant to others and which elements you wish to retain for your exclusive use. 

Assigning Copyright

Assigning copyright means transferring your ownership of the material to someone else. The recipient of the transfer is the new owner. This means that they receive the exclusive right to use the material.

A common example is in the film industry, where screenwriters often assign their screenplays to film production companies. They then adapt the screenplay for a film or other work.

Australian law requires that assignments be in writing and that both you and the new owner sign it to make it legally binding. This assignment may be completed within a deed of assignment or another agreement. Sometimes, emails and other written correspondence can be sufficient to establish an assignment of copyright. However, it is safer to have a proper legal document drawn up and signed by both parties.

Licensing Copyright

A copyright licence allows you to retain ownership of the work while another party uses the material. As with an assignment, licences should clearly outline the terms and conditions of the relationship. They should also describe the relevant copyrighted material and the associated rights that you are licensing.

There are a number of different types of licences, including:

  • exclusive licences;
  • non-exclusive licences; and
  • implied licences.

The key distinctions between these types of licences relate to the nature and extent of the rights that they grant.

For example, a writer will often grant an exclusive licence to their publisher to publish their book for a period of time. As a result of that licence, the writer cannot contract with any other publisher for those rights. If another publisher were to publish the same book, the licensed publisher could pursue a claim of copyright infringement under their licence.

However, the same writer may simultaneously turn their book into a play and contract with a playwright to have their play performed. This would not interfere with the exclusive licence held by the publisher.

On the other hand, a non-exclusive licence allows multiple people to use the same copyrighted material.

For example, an illustrator may grant a media company a non-exclusive licence to reproduce an illustration in a newspaper. However, they could also give a publishing company a non-exclusive licence to include that illustration in a book at the same time.

Key Contract Considerations

When writing up a contract to assign or licence your copyright, it is essential that you detail the nature of the agreement. You must specify:

  1. what the copyrighted material specifically is;
  2. who the recipient of the material is;
  3. what the recipient wants to do with the material;
  4. what you will be receiving in return for the assignment or licence;
  5. the time limit of the transfer; and
  6. any limits on the transaction (for example, the type of use allowed or the location in which use is permitted).

When a Transfer is Not Necessary

There are two situations where someone can use your copyrighted material without your transfer of the ownership.

1. Fair Dealing

Australian law allows the use of copyrighted material without your authorisation in certain situations when it is used for:

  • research or study;
  • criticism or review;
  • parody or satire; or
  • reporting the news.

Whether someone’s use of your copyrighted material in a manner that would normally be exclusive to you is fair will depend on the circumstances of the situation.

For example, someone photocopying 10% of a chapter of your textbook for a university course may be considered fair use.

Furthermore, someone using clips from your video to parody or satirise the material may also come under fair use.

2. Creative Commons

You can place a creative commons (CC) licence over your work. Each of the CC licences permits others to:

  • distribute;
  • perform;
  • play; or
  • copy your material.

However, your work will still be subject to conditions or restrictions. If you wish to place a CC licence over your work, you have the option to restrict its use in a commercial setting. Furthermore, anyone who uses your work must clearly attribute it to you, the creator.

Key Takeaways

If you want to assign or licence your copyright, it’s important to consider the key aspects of the agreement. Assigning copyright allows you to transfer your ownership of the material to someone else.

In comparison, licensing copyright permits another party to use your material, while you still retain the rights to the work. If you have any questions about assigning or licensing your copyright, contact LegalVision’s IP lawyers on 1300 544 755 or fill out the form on this page.

Sam Burrett
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