May 29, 2023
May 29, 2023
Copyright plays an essential role in our daily lives by protecting the rights of creators, and motivating creativity, and innovation. The protection and compensation through copyright encourage people to produce new and original work.
Copyright is a great tool that gives the creators exclusive rights to their original works. Like any other property, you the owner/creator ("Assignor") can transfer your ownership in copyright to a person or entity ("Assignee"). This article will guide you through the essential things to consider when transferring copyright, explain the difference between licensing and transferring, and discuss methods to protect yourself from legal issues.
Copyright covers a wide range of creative work including:
In the digital age, the relevancy of copyright has increased manifold. It regulates and protects the distribution and sharing of digital content such as images, videos, articles, and software. Creators are protected from unauthorized usage and distribution of their works online.
The duration of copyright protection varies depending on the type of work. For literary, dramatic, musical, and artistic works, the term protection is the life term of the creator and 60 years after the death of the creator. In the case of cinematographic films, sound recordings, photographs, and anonymous/pseudonymous works, the term is 60 years from the date of publication.
While transferring of copyright, you should keep in mind the following important factors:
(1) Written agreement
To be a valid transfer, the terms agreed between the parties shall be in writing by executing a Copyright Transfer Agreement ("Agreement"). The Agreement shall be in compliance with the Copyright Act, 1957, the Indian Contract Act, 1872, and other applicable laws and regulations. The Coopyright Transfer Agreemetn should be signed by the Assignor or their duly authorized agent.
(2) Clear and specific terms
It is crucial to clearly and precisely define the works that are being transferred. This includes specifying the nature of copyright such as literary works, artistic works, computer programs, etc. For example, if you are an author of a book, it is pertinent to mention which specific book you are transferring under this Agreement. Often confusion in wording or identification of specific work ends up in legal disputes between the parties.
(3) Fair compensation
Transferring the copyright typically involves an agreed-upon payment or consideration. It is crucial to evaluate the fair value of the work through market research. Once the amount has been finalized, the payment can be made in various forms, such as lump sum payment at the time of signing the agreement or in multiple instalments. It is also crucial to mention the method of payment to be used under the agreement.
(4) Exclusive or non-exclusive transfer
Parties must decide whether the transfer will be exclusive or non-exclusive. In an exclusive transfer, the Assignee gains sole rights to the transferred work, preventing the Assignor from exploiting or transferring the work to others. On the other hand, a non-exclusive transfer allows the Assignor to assign or license the work to multiple parties at the same time. The decision is based on the parties and is subject to particular work.
(5) Duration of transfer
The duration of the transfer is a crucial factor. You should mention whether the transfer is a temporary (for a shorter period) arrangement or a permanent arrangement. For example, an author assigns the rights in a book for a period of 3 (three) years, after 3 (three) years, the rights revert back to the author. If the period of transfer is not mentioned under the Agreement, the default period of transfer will be 5 (five) years.
(6) Rights and restrictions
It is essential to explicitly outline the rights being transferred to the Assignee. This includes the right to reproduction, distribution, public performance, adaptation, translation, and other related rights. This will help both parties to what extent each party has control over the work and will help in avoiding possible legal disputes. You can also specify additional restrictions or limitations such as territorial limits, and media platforms on which the copyright can be published or distributed, etc.
(7) Moral rights
Moral rights are inherent rights that remain with the creator even after the transfer or transfer of the copyright. These rights include the right to be mentioned as the creator of the work and the right to object to modification, distortion or mutilation of the work that may harm the reputation of the creator. You can clearly mention such restrictions and possible actions directly in the Agreement.
(8) Scope of use
It is important to specify the intended scope of use of the transferred work. Specifically, whether the Assignee has the right to use the work for commercial purposes, promotional works, etc. If the scope of use is not mentioned, the Assignee will be free to use the transferred work for any purpose they wish.
(9) Consider existing licenses and transfers
Take into account any existing licenses and transfers related to the work. If there are any existing agreements, it is essential to ensure that the terms of such agreements align with the transfer of the work.
(10) Compliance with the Copyright Act
It is important to ensure the transfer complies with the provisions of the Copyright Act, 1957, and any other relevant laws or regulations.
When you license your work, it means you give someone the right to use it and the ownership still remains with you. For example, if you are a software developer, you can give a company the right to use your software for a limited period by paying the license fee. To protect your rights, entering into a written license agreement is essential.
On the other hand, transferring copyright means you give up ownership of your work to someone else with or without any restrictions. The transfer can be either permanent or for a specific period. For example, if you are a filmmaker, you can sell the rights to your movie to a production company.
(1) Research and verify
Before transferring the work, it is important to ensure that your work does not violate/infringe upon the rights of others. You can search for similar work on various platforms including the copyright office website, the national digital library of India, etc. and if required, seek expert consultation.
(2) Registration of copyright
Although it is not mandatory to register, registering the transfer of copyright with the concerned Registrar of Copyright provides official proof and strengthens your rights in case of any disputes. A copyrighted work can be registered online through the website of the Copyright Office.
(3) Confidentiality and non-disclosure
Include detailed non-disclosure clauses in the agreement to avoid disclosure of confidential information under the transfer agreement or regarding the work. If required, you can consider entering into a separate detailed non-disclosure agreement with the Assignee.
In conclusion, copyright transfer means giving someone else ownership of your creation like a book, song, or artwork. It is like selling your rights to them.
To make sure everything goes smoothly, there are some important things to remember. Firstly, you should conclude what you are going to give and the expected return/compensation from such a transfer. The main motive here is to protect the rights, so make sure to include the rights and limitations of each party in the transfer.
If the transfer involves international parties, it is important to consider international copyright laws before transferring the work.
Still unable to comprehend, you can seek legal advice before transferring your copyrighted work. Always, remember to keep records of your agreement and consider notarizing and registering the transfer for extra protection.
By understanding these differences and following some simple steps, you can confidently assign your copyright and ensure that your creations are protected.