Tuesday 15 December 2009

Transfer of title: a reader asks ..

Trade mark attorney Aaron Wood has written in with a question for readers of the 1709 Blog. He writes:
"Certain countries (such as Germany) have a copyright system that does not allow for transfer of copyright from the owner while they are alive: as well as the moral rights, the economic rights cannot be transfered. You have to grant licences instead. In the context of Germany, I have learnt that you cannot license for use in all media (whether invented or to be invented), so the author can essentially re-open the licence to get further remuneration in the right circumsances. It would appear to be a pain for "format" owners, but I can see an issue for trade mark owners too in relation to the ownership of copyright in the logo".
Aaron suspects that the position may be similar in the Czech Republic, and he wonders whether it might be the case anywhere else in Europe. At any rate, he'd welcome as many responses as possible. Please feel free to post your observations below, or you can email Aaron directly here.


Tomasz Rychlicki said...

The Polish Act on Author's Rights and Neighbouring Rights followed the concept of author's rights being intangible personal/moral and economic rights owned, in general, by the creator of a protected work (the author or co-authors – the holder). This is the concept of the so-called dualism of author's rights, which originates from the French doctrine of author's rights that was first introduced and developed by M. Henri Desbois.

All economic rights can be transferred from the author/co-authors/creator to a third party. The general principle is that author’s personal (moral) rights are not transferable but the Polish Appellate Court in Warsaw ruled that it is permitted to waive of the exercise of personal/moral rights by the creator, to third parties, including entrepreneurs. Such opinion is also shared by legal comentators.

Crosbie Fitch said...

Unlike natural rights, privileges (aka 'legal rights') are not naturally inalienable or inviolable and so can be transferred at the whim of the respective legislation.

Those jurisdictions that like to pretend their privileges are natural rights will of course legislate that they cannot be transferred.

It makes no sense to consider moral rights as transferable precisely because they are not privileges. For example, to misrepresent the author of a work as someone other than the true author is a falsehood, and thus an injustice (that violates the author's natural right to be identified as the author).

Copyright is a privilege - an artificial 'right' created by suspending a natural right (the liberty to copy).

One could of course similarly suspend a moral/natural right and create a privilege of being able to legally lie about a work's authorship. However, such a privilege would be pointless unless it were transferable.

Until one recognises the difference between natural rights and the unnatural privileges that suspend them then 'rights' and rights will remain confused and incomprehensible.

The TradeMarkovs' said...

Bulgaria is in the mainstream of the continental droit d’auteur / Urheberecht system as well, the latter being impossible to translate otherwise than copyright.
More specifically:
- The economic rights are not transferable. This is legally binding after the author is not alive as well. The exception is just in inheriting them, e.g. a Will or testament is causa post mortem transference. To this end there are numerous further effect regarding economic rights& e.g.any authorisation to use a work is time-limited up to 10 years.
- Some of the moral rights are transferable
- Some of them are totally inalienable; even not assignable, nor might they be a legacy (the right to recognition the authorship and the right to name / pseudonym).
- Practically some of the moral rights shall be transferred inevitably: the right to first communication. Virtually it’s implied in the first publishing contract.
- Despite the authors’ rights granted by the law in labour, the employer enjoys an unlimited exclusive right to use his employee’s work without further permission or remuneration.
- In case of commission the commissioner enjoys a right to use the work. This use is limited to the purpose stated in the contract, but unlimited in time.

Huťko said...

Moral rights and economic rights cannot be transfered neither in Czech republic nor in Slovakia (same legal concept).

Unknown said...

During the Canadian Copyright Consultation I suggested that this concept should be used in Canada.

I understand that certain large corporate entities were not happy to see my suggestion :)

Huťko said...

Regarding my previous comment -
i forgot to state that in both countries the only exception is the transfer of economic rights 'mortis causa'.