Dealing with copyright

Question 1

Explain the transfer of copyright

Answer 1

Copyrights are personal property. Like other forms of personal property, a copyright interest may be transferred in whole or in part by any means of conveyance or by operation of law and may be bequeathed by will or pass as personal property by the applicable laws of intestate succession.
However, Section 204(a) of the Copyright Act provides that “a transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner’s duly authorized agent.”

• The most common form of transfer are licence and assignment
• Licence can be exclusive or non-exclusive
• Doctrines of implied licence and estoppel

Question 2

What are alienability restrictions in the transfer of copyright?

Answer 2

❑ Alienability restrictions in civil-law countries
▪ In Germany: copyright can be licensed but not assigned
▪ In Italy: maximum duration of transfer = 25 years
▪ Rationale?
❑ Only economic rights can be transferred, not moral rights
▪ But in the UK moral rights can be voluntarily waived

Question 3

Explain the assignment and licensing in common law countries.

Answer 3

❑ Assignment → Permanent transfer of property in the work. It can be Exclusive:
* It must be in writing and signed by the copyright
owner (or on his behalf)
* It can apply to “future copyrights”
* It gives the assignee/licensee the right to sue for
infringement
❑ Licence → Permission to do acts that would otherwise be infringement. It can be limited in time and space. It can be Exclusive:
* It must be in writing and signed by the copyright
owner (or on his behalf)
* It can apply to “future copyrights”
* It gives the assignee/licensee the right to sue for
infringement

or, it can be Non-Exclusive: * It can be in writing, oral, or even implicit

Question 4

What is collective management of rights?

Answer 4

• Licensing performed by a collecting society on behalf of a plurality of rightsholders
• In other words: a group of rightholders pooled some or all of their rights so that users
  can obtain a license to use such rights from a single source, i.e. the collecting society.

It can be:
*Voluntary collective management of rights:
✓ The copyright owner assigns certain rights to a Society who administers them “collectively” – i.e. by means of licenses covering a range of copyright works
✓ This means of administering the rights is useful whenever it is inconvenient or even
impossible to negotiate on an individual basis
Examples:
➢ Broadcasting (radio, TV)
➢ Communication or performance in public places (restaurants, bars,
clubs, shopping malls, …)
✓ However, all exclusive rights can be administered collectively (on a voluntary basis)

*Mandatory collective management of rights:
❑ Collective management is mandatory for the collection of certain rights:
e.g. - Cable retransmission – Art. 9(1), Dir. 93/83/EEC
- Equitable remuneration for performers and phonogram producers
(communication to the public) – Art. 8, Dir. 2006/115
- Fair compensation for private copying – Art. 5(2)(b), Dir. 29/2001

*Extended Collective Licensing:
❑ Under an ECL system, a collecting society which is sufficiently representative of a certain category of rightsholders can license rights on behalf of all rightsholders (including those who have not given mandate)
❑ Rightsholders who are not represented can opt-out from the scheme

Question 5

What do collective societies do?

Answer 5

Collecting societies function in a variety of ways:
* Agents of a group of rightholders for some or all of their rights
* Intermediaries in the licensing process
* Responsible for collecting and distributing royalties/remuneration
* enter into reciprocal arrangements with other collecting societies
* enforce rights
* negotiate license fees for public performance
* act as lobbying interests groups

Question 6

What are public licenses, or “copyleft”?

Answer 6

Copyleft licenses are forms of public licensing whereby the copyright owner removes some restrictions on certain uses of the work, and requires that the same freedom be preserved in modified
versions of the work.
Two main features:
1. Freedom to copy, to distribute (and to modify) the work without asking permission
2. “Viral” effect: freedom to modify is granted on condition that the modified work is released under the same conditions

Question 7

What is CC (creative commons)?

Answer 7

CC is a public license that authors can associate to their works. In order to create a CC license there are several modules that can be combined (detailing which rights are reserved and which rights are waived):
Attribution: users must attribute the work in the manner specified by the author or licensor, so they can receive credit for their work
[Non] Commercial: licensor can choose if other parties may or may not use the work for commercial purposes
[No] Derivative Works: licensor can choose whether licensee may or may not alter, transform, or build upon the work
Share Alike: licensor can force subsequent authors to distribute the resulting work only under a license identical to the one adopted by the
author himself

The license associated to a work is realeased in three versions:
*“Human readable” version
Essentials of the license stated
*“Lawyers readable” version
Actual license – ‘ported’ in
different jurisdictions
*“Machine readable” version (metadata)
For search engines purposes