Consumers’ FAQs on copyright: divergence on copyright contracts

There has been published a very useful guide for consumers and for anyone who is curious about copyright. This guide explains different things, relating to IP rights, in simple way. The project has been commissioned by the European Union intellectual property office.

The Guide aims to give ‘answers to the most frequently asked questions (FAQs) average consumers have in relation to copyright for all twenty-eight EU Member States.’ The present Summary Report highlights the convergences and differences in national copyright laws in relation to the 15 consumer questions.

By means of a licence, the author grants the other party authorisation to exploit the economic rights in his or her work. For that reason, there can be a difference between the ‘author’ and the ‘(derivative) rights holder’ of a specific work. A licence may be exclusive or non-exclusive: a non-exclusive licence allows the author to continue exploiting the work, for example, by using it personally or by licensing his or her economic rights to other parties. Due to some systemic differences, certain Member States do not technically allow ‘transfers’ of rights (see CZ, DE, HR, SK). In Germany, this means that while copyright as such may not be transferred, an author may grant ‘rights to use’ for the work.

In principle, an agreement may allow the parties to determine the object, type, scope, duration and territory of the permitted use, as well as the remuneration for the use. However, most Member States’ copyright laws protect authors by regulating the extent of possible grants. Overall, common-law countries are, in this regard, more ‘liberal’ than civil law author’s rights jurisdictions. However, it appears that within the latter category, the Nordic countries (DK, FI, SE), the Netherlands, some Baltic countries (EE, LV), as well as Luxembourg, leave the parties more freedom when it comes to copyright contracts.

Moral rights, for example, the rights to paternity and to integrity of the work, cannot be waived in most Member States. Traditionally, author’s rights countries consider the moral right to be inalienable and therefore as not transferrable (at least inter vivos). In Finland, Denmark, the Netherlands and Sweden, moral rights can be waived to a certain extent or partially. In Luxembourg, ‘all moral rights but the right to oppose against offence against the author’s reputation can lawfully be transferred’. In the United Kingdom, authors may waive their moral rights, but cannot assign them. In Ireland, there are ‘no restraints on waivers relating to moral rights’, but the waiver must be in writing. In Malta, moral rights cannot be assigned throughout the lifetime of an author.

Some experts mention that remuneration rights, which are different from exclusive rights, may not be waived (see, e.g. the information provided by the experts from ES, SI). This means that even if a contract stipulates the transfer of economic rights, the author will retain his or her (statutory) claim for remuneration.

Protection may, amongst other things, relate to future uses of the work, which are still unknown at the moment the licence is granted, or which are not clearly identified in the agreement (see, e.g. BE, CZ, DE, EL, ES, FR, IT, LT, HU, AT, RO, SI — to a minor extent, PL). In Germany, for example, even if authors may license future, still unknown types of uses, they will have ‘a right of revocation if the platform wants to start such kind of use; if they do not revoke their right, they have a right to claim remuneration for the new kind of use.’ Similar rules exist for uses through different media (see BE, DE, IE, ES, FR, IT, HU, PL, RO, SI). In Portugal and in the Netherlands, an author may claim additional remuneration or compensation for such ‘new’ types of uses.

In many Member States, judicial interpretation of the agreement will favour the author in the case of vagueness or ambiguities (see, e.g. DE, EL, ES, FR, LT, AT, RO, FI). In Romania, for example, the scope of the provisions of a contract will be interpreted narrowly, that is to say, ‘all rights not specifically mentioned as being transferred are considered not transferred’. In Austria, in the case of doubt, ‘a licence agreement comprises only the necessary powers for the practical purpose of the intended use of the work’.

Protective legal mechanisms may also relate to the term of the grant (see notably BE, BG, IE, EL, ES, FR, IT, PL, PT, RO). While some laws provide that a grant may not be longer than the duration of copyright (see LU, MT, FI), others lay down a maximum duration if the contract is silent on the term of the grant. In Belgium, constraints as to the term only relate to future works. Some Member States allow the author to terminate the contract in certain cases and under certain conditions (see BE, BG, DE, EE, IE, ES, FR, IT, LV, LT, HU, NL, AT, PT, RO, SI). This frequently applies where no term is indicated in the contract, or where the licensee does not exploit the work during a given time.

At least a (full) transfer of economic rights or even an exclusive licence will often have to be made in writing (see BE, BG, DE, EE, EL, ES, FR, IT, CY, LV, LT, HU, PL, PT, SI, UK). In Romania, a written agreement will at least be necessary in order to prove existence and contents of the transfer. In Malta, Ireland and the Netherlands, formal requirements relate to the assignment of rights. In Portugal, a public deed is required for the total and definitive transfer of economic rights. In Poland, for example, formal requirements entail that simply ‘clicking “agree” to terms and conditions on the site does not amount to written signature.’