Copyright Assignments and Licences
Copyright is a personal property right. The interest conferred by copyright law is the exclusive rights to do acts comprised in the copyright. These rights can be assigned or licensed. An assignment of copyright is a transfer of ownership and interest in all, or some of the copyright. A license is a permission to do some of the acts comprised in copyright. Each of these will be considered in detail below.
Video overview by Nicolas Suzor on Copyright Assignments and Licences.
Assignments
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. If the assignment is with respect to partial rights, the copyright owner splits the copyright into separate interests.
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”.
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 at 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 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.1
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
A license is a permission to use copyright material in ways that would otherwise infringe. The license can be limited by contract.
Video overview by Kylie Pappalardo on Copyright Licences.
An exclusive license is “a licence in writing, signed by or on behalf of the owner or prospective owner of copyright, authorising 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”. 2 s 10(1) Exclusive licences give the licensee the power to sublicense and the title to sue for infringement. 3
In the instance there is a non-exclusive licence, others may have rights to use or make use of the copyright work.
A license is the product. Where use of a product would necessarily infringe copyright (as in software), then it could be said that you are not paying for the product (i.e., CD), but the licence. You get some rights over the physical medium, but you do not have the full rights to make use of the works.
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.4
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 (1963) WN (NSW) 1578
In the case of Beck v Montana Constructions Pty Ltd 5 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. The other architect who was retained produced plans which 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.
It was held that 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 (CC) is a non-profit organisation which created a public licensing suite. The licenses are free, easy-to-use copyright licenses that provide a simple and standardised way to give the public permission to share and use creative work. The idea of the CC licenses is to help people legally share their “knowledge and creativity to build a more equitable, accessible, and innovative world”. Creative Commons “What we do”
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. |
Video overview by Rachel Varshney on Creative Commons Licensing.
Statutory Licences
A statutory licence involves the copyright owner making the copyright work available for use (to a specific audience) without requiring permission. The copyright owner is then entitled to be compensated for the use of their work.
In December 2017 the statutory licensing scheme in Australia was simplified. The previous educational statutory licences in Parts VA and VB of the Copyright Act 1968 (Cth) was replaced by one simplified statutory licence. [^CA113NU] The statutory licence will be discussed in more detail in the Chapter on Copyright Limitations and Exceptions. [^CA113NU]: CA ss 113N - 113U