What is the song?
The subject of copyright is a work. According to the Copyright and Neighboring Rights Act, it is any manifestation of creative activity of individual character, fixed in any form, regardless of value, purpose and manner of expression.
First of all, therefore, it is necessary to determine whether creativity is an individual manifestation, that is, whether it is related to the creative activity of a person.
Copyright does not protect discoveries, ideas, procedures, methods and principles of operation and mathematical concepts.
„The condition of creativity, indicating the novelty of the subject matter of protection, is subjective in nature. The condition of individuality, on the other hand, is strictly related to the activity of a person as an author who, in the process of creation, gives the work a unique character, manifested in the way the subject matter is approached and in the way it is expressed. The condition of individuality should be examined in copyright law by reference to the assessment of the result of the creative process.”Wyrok SA w Gdańsku z 30.09.2020 r., V AGa 74/19, LEX nr 3102186.
Time of passage of the copyright to the acquirer
Pursuant to the provisions of the Act, the moment when the copyright passes to the purchaser is not the moment of conclusion of the agreement, but the moment when the purchaser actually accepts the work. The parties are free to determine the moment when the copyright passes to the acquirer.
The parties should specify in the contract the remuneration or acknowledge that the transfer of copyright will be free of charge. Such a provision should be explicitly stated in the contract.
The provisions of the Act indicate that in the absence of different regulations, the author is entitled to separate remuneration for the use of the work in each separate field of exploitation.
Therefore, the parties may agree that the indicated remuneration covers the entire contract or they may determine the remuneration separately for each field of exploitation.
Fields of use
It is very important that the agreement specifies precisely the fields of exploitation, i.e. the areas where the right is transferred. In the Act on Copyrights and Related Rights one may find article 50, which indicates in particular:
1) recording and multiplication of the work – production of copies of the work by a specific technique, including printing, reprography, magnetic recording and digital technique;
2) trading in the original or copies on which the work has been fixed – marketing, lending or lease of the original or copies;
3) dissemination of the work, in a manner other than that specified in item 2 – public performance, exhibition, display, reproduction, broadcasting and re-broadcasting, as well as making the work available to the public in such a way that everyone can have access to it at a place and time individually chosen by them.
As to the lack of specifying the fields of exploitation in the agreement, the doctrine and judicature take two positions. The first position is restrictive and indicates that failure to identify the fields of exploitation does not result in transfer of copyright – III CK 400/03. The second position is more liberal and indicates that the parties’ declarations of intent should be interpreted in this respect – that is, what was the intention of the parties when they entered into the agreement to transfer copyright.
The best solution is to precisely list and specify the specific fields of exploitation. A contentious issue with respect to specifying the fields of exploitation is the mere mentioning of Article 50 of the Copyright and Related Rights Act as a list of fields of exploitation, because we should indicate these fields in the agreement. A better solution would be to copy the fields of exploitation listed there from the Act into the agreement. It is also insufficient to indicate that we transfer fields of exploitation in every possible area.
The copyright transfer agreement must be concluded in writing under pain of nullity.
The copyright transfer agreement may also include provisions on the exercise of sub� stantive rights. The disposition and use of another’s work requires the permission of the creator of the work. Therefore, despite the transfer of copyright, the author retains the exclusive right to authorize the exercise of the dependent right, unless otherwise specified in the contract.
A copyright transfer agreement can be very complex and contain many safeguards for both parties. If you have any questions feel free to contact me.29 listopada, 2022 Brak komentarzy