Legal information regarding the difference between copyright licences and copyright assignments (English law)
Copyright is a term often associated with the music and film industry, however it applies to all creative and artistic works. Copyright requires no formal registration and will subsist for a period of up to 70 years from the creator’s death, thus making it one of the most difficult intellectual property rights to keep track of. Those who hold copyright in a piece of artistic work will often look to license their work to allow others to utilise it and in return they will be the recipient of royalties. In the alternative, the creator may choose to assign/ transfer the copyright to an individual or a company usually in return for a monetary sum. A licence and a copyright assignment are distinguishable yet are often confused, whether an individual or a company is granted a licence or an assignment will ultimately be the decision of the copyright holder.
There are several types of licences which can be granted in relation to a copyright. A licence is often granted in the form of a licensing agreement; the agreement will usually be easily identifiable as that of a licence rather than an assignment as it will usually stipulate a time period which the licence is granted for. A perpetual licence can be granted in relation to copyright, these are licences which are granted for an indefinite period.
The licensor will have the discretion to grant either a non-exclusive, exclusive or a sole licence. A non-exclusive licence will permit the licensor to grant licences to other individuals or companies for the same copyrighted work. In the alternative an exclusive licence does not permit any individual or company except the named licensee to exploit the copyrighted work including the licensor themselves. Although, a sole licence resembles an exclusive licence, the differing factor is that if a sole licence is granted the licensor reserves the right to fully exploit the protected work themselves.
A non-exclusive licence does not grant the licensee the right to enforce the intellectual property right in relation to a claim for infringement. Whereas, an exclusive licence or a sole licence, does allow the licensee to pursue a claim for copyright infringement.
A copyright assignment differs from a license in that it is a transfer of the title to the copyright to the assignee. A copyright assignment is often viewed as being akin to a sale of property, the implications of this being that the sale is final and cannot be revoked. It is worth noting that the Copyright, Designs and Patents Act 1988 (CDPA) brought into English law the concept of moral rights. Moral rights under English law cannot be assigned or transferred in the copyright and will remain with the original creator, this is an ultimate form of protection for the assignor. There are several moral rights, including;
- The right of paternity – This right applies only if the right has been asserted by the author and is found in s 77 of the CDPA.
- The right to object to derogatory treatment – s 80 of the CDPA,
- The right against false attribution of work – s 84 of the CDPA.
- The right to privacy in private photographs and films – s 85 of the CDPA.
A copyright assignment is a legally binding document and under English law only requires the signature of the original creator. A copyright assignment can also be drafted in the form of a deed. If the assignment is drafted as a deed then the deed will need to be validly executed.
