Copyright assignments and licences

Assignments

Video overview by Nicolas Suzor on copyright assignments and licences.

Section 196(1) of the Copyright Act 1968 provides that: “Copyright is personal property and […] is transmissible by assignment, by will and by devolution by operation of law”.

An assignment is a transfer of copyright ownership from one person (the assignor) to another person (the assignee). Section 196(2) provides that an assignment may be limited in any way, including by the specific rights assigned (the copyright owner does not have to assign all of their copyright interests at once), jurisdiction, or a period of time.

Section 197 provides that future copyright can be assigned. Future copyright refers to a copyright interest that will come into existence at a future time or on happening a future event. Where a future copyright interest is assigned, copyright will vest in the assignee when the work comes into existence (for example, copyright in a yet unwritten book).

For example, when musicians become members of the Australasian Performing Rights Association (APRA), they grant an assignment to APRA of the performance rights in all their present and future musical works. This enables APRA to collect performing rights licence fees on the musicians' behalf.

An assignment must be in writing and signed by the assignor to be effective: s 196(3)

When copyright is assigned, the assignee acquires full rights with respect to the copyright interest assigned - for example, they may licence the interest, assign it to someone else, or sue another person for copyright infringement. The assignor retains no special rights in relation to the work and may even be sued for infringement by the assignee.

Licences

Video overview by Kylie Pappalardo on copyright licences.

A license is a permission to deal with the copyright subject matter for certain purposes.

An exclusive license is “a licence in writing, signed by or on behalf of the owner or prospective owner of copyright, authorizing the licensee, to the exclusion of all other persons, to do an act that … the owner of the copyright would, but for the licence, have the exclusive right to do” (s 10(1)). Exclusive licences give the licensee the power to sublicense and the title to sue for infringement (s 119).

Where there is a non exclusive, others may have rights.

A license is the product. Where use of a product would necessarily infringe copyright (as in software), then it could be said that you’re not paying for the product (i.e., CD), but the licence. You get some rights over the physical medium, but you have no right to use it without a copyright licence

Often the licence is inside the box the software comes in – Shrinkwrap license. Or as a pre-requisite to a download – Clickwrap license.

Gratuitous licences may be revoked at any time: Trumpet Winsock v Ozemail [1996] 560 FCA 1

Implied licenses

Licenses can be implied from the circumstances. A newspaper editor has an implied licence to publish letters to the editor. This is always subject to directions to the contrary. An implied license also exists to use commissioned copyright material for the purposes contemplated (Beck v Montana Constructions Pty Ltd).

Question: if you post material to the internet are you giving any implied license?

Beck v Montana Constructions Pty Ltd [1964-5] NSWR 229; (1963) WN (NSW) 1578

  • Facts: A firm of architects was commissioned to draw plans for a block of units. When the owners sold the land they gave the purchaser the plans
  • The purchaser decided to build in accordance with the plans but not to retain the architect
  • Another architect was retained – his plans were a substantial reproduction of the first architect’s plans
  • The original architects sued the purchaser and its architect for infringement of the copyright in the sketch plans
  • Held: There was an implied licence in favour of the purchaser to use the plans in respect of the same land

Creative Commons Licensing

Creative Commons licensing can be applied by any person to their work, and can be taken advantage of by any person to use the licensed work (provided it is in accordance with the terms of the license).

There are four conditions that can be applied to a Creative Commons license.

Right Description
Attribution (BY) Licensees may copy, distribute, display and perform the work and make derivative works and remixes based on it only if they give the author or licensor the credits (attribution) in the manner specified by these.
Share-alike (SA) Licensees may distribute derivative works only under a license identical (“not more restrictive”) to the license that governs the original work.
Non-Commercial (NC) Licensees may copy, distribute, display, and perform the work and make derivative works and remixes based on it only for non-commercial purposes.
No Derivative Works (ND) Licensees may copy, distribute, display and perform only verbatim copies of the work, not derivative works and remixes based on it.

Rachel Varshney explains CC Licensing