What is the difference between a Copyright Assignment and a Copyright Licence?
What is Copyright?
Generally speaking, the creator of an original work is the copyright owner of such work. Therefore, copyright is an automatic right that exists from the moment the author expresses the novel piece of work, whether that’s a book, a piece of classical music, or a complicated piece of coding for software.
A common question that frequently arises in practice is how to generate income or monetise my copyright while still retaining ownership? This is where the distinction between the assignment of copyright and the licence of copyright becomes critical.
What is a Copyright Assignment?
Assignment of copyright essentially means a copyright holder (the assignor) is transferring all its rights to another party (the assignee) usually in return for a fee or perhaps some form of royalty payment.
“Moral Rights” must also be considered in the context of a copyright assignment. Such rights go beyond pure economic considerations and are focused on the often-emotional connection the author has with his piece of work. As such, moral rights will survive a copyright assignment unless such rights are expressly waived as part of the assignment. Moral rights include: the right to attribution; the right to object to derogatory treatment of a work; and the right to object to false attribution.
When a copyright in assigned, the creator of the work no longer owns the work and will not be entitled to use it in the future. For example, if the original creator subsequently uses the copyright material in the future, it will have committed a copyright infringement.
So, what if the creator of the copyright material wishes to generate revenue from its works, but does not want to necessarily give all of its rights away through an assignment? That’s where the concept of licensing comes into play.
Licensing
To put this concept in basic terms, “copyright” is made up of a bundle of rights. When you grant a license to use your copyright you are essentially retaining most of those rights and granting the licensee a limited form of interest in your copyright. It is not dissimilar to a landlord granting a lease to a tenant. Yes, the tenant can occupy the house, but the landlord still owns the house and the tenant can continue to live in the house so long as it abides by the rules of the lease.
Common forms of licensing
- Exclusive licensing: meaning that the license will not be granted to another licensee.
- Non-Exclusive licensing: meaning that the copyright holder is free to grant a licence to another party.
- Perpetual licensing: meaning the license will be continually available to the licensee, perhaps based on the condition that the licensee continues to pay a support fee. This form of licensing is frequently encountered as part of software licensing agreements.
- Term Licensing: meaning the license will cease to exist after a defined period of time.
Of course, many combinations of the above are possible and many other forms of licensing are possible.
From the copyright holder’s perspective, licensing also allows it to add additional rights to the licensing arrangements. For example, in the software industry, it is common practice for software vendors to include an audit clause allowing it to scan a customer’s IT estate to determine if such customer is in fact respecting the terms of its software licensing .
Conclusion
The main difference between an assignment and a license is who owns the copyright. In an assignment the copyright holder gives up ownership and in a licence, the copyright holder retains it.
Given the confusion concerning assignment and licensing of copyright and given the dramatically different effects of the legal instruments, it’s important that copyright holders are careful when considering generating revenue from their creations. It is possible to assign ownership of your copyright when the intention was to create a simple license to your copyright.
Deciding whether you should have a copyright assignment or a copyright license for your work can be a complicated decision that should be evaluated carefully, with the assistance of a copyright solicitor who can explain your options and write effective and appropriate contracts for you.
If you would like to learn more about any of the issues raises in this article please contact dcunningham@cunninghamsolicitors.ie
The content of this article is provided for information purposes only and does not constitute legal or other advice.