In copyright law, the following agreements are fundamental to legal transactions: the copyright transfer agreement and the licensing agreement. Although both concern the use of works, their essence and legal effects differ significantly.
What are economic copyrights?
Economic copyrights constitute the primary rights of a creator concerning their work, granting them the exclusive right to use the work, dispose of it in any field of exploitation, and receive remuneration for its use. According to Article 36, Section 1 of the Act of February 4, 1994, on Copyright and Related Rights, these rights expire 70 years after the author's death. The legislator has provided for their transfer to other persons through inheritance or by contract (Article 41, Section 1, Point 1 of the aforementioned Act).
It is worth noting that, unlike economic copyrights, moral copyrights cannot be transferred to other persons through a contract or will. This is because they protect the creator's perpetual and inalienable personal connection with the work (Article 16 of the Act).
Characteristics of a copyright transfer agreement
A copyright transfer agreement has the most far-reaching legal effects regarding the disposition of a work. Upon its conclusion, economic copyrights are transferred to the acquirer, and the transferor loses their rights, including the ability to use the work within the scope covered by the agreement. A significant limitation is that the same rights can only be transferred to one entity. The legislator has imposed a requirement for written form under penalty of nullity for such agreements.
Characteristics of a licensing agreement
A licensing agreement represents a less restrictive method of granting rights to a work, where the licensor merely authorizes the licensee to use the work while retaining their economic copyrights. Unlike a copyright transfer agreement, a licensing agreement can be concluded in documentary form, except for an exclusive license, which requires written form under penalty of nullity.
There are two primary types of licenses: exclusive and non-exclusive. A non-exclusive license, which is presumed in the absence of other provisions, allows granting similar rights to multiple entities. In contrast, an exclusive license grants the licensee sole rights to use the work, preventing the licensor from granting similar rights to others.
The duration of the licensing agreement is particularly important. If no duration is specified, the license expires after five years under statutory provisions (Article 66 of the Act). This serves as a significant safeguard for the parties’ interests and requires special attention when drafting contractual provisions.
Conclusion
The analysis of both types of agreements leads to the conclusion that the choice between them should be dictated by the intended use of the work and the strategy for managing copyright. A copyright transfer agreement is a definitive solution, resulting in the full transfer of rights to the acquirer, who becomes their new holder. Conversely, a licensing agreement offers flexibility, as the licensor merely authorizes the use of the work within the agreed scope while retaining their rights.
Furthermore, these agreements differ in formal requirements: a copyright transfer agreement must be in writing under penalty of nullity, whereas a licensing agreement (except for an exclusive license) can be concluded in any form.
