As the owner of the copyright and owner of creative work, you may need to transfer the rights to your work. Maybe you need someone else to distribute your original work, make copies of the work or just want to sell your intellectual property as an asset.
Either way, this post will ensure you will know how to transfer your rights legally, so read along!
Definition of copyright assignment
A copyright assignment puts into effect a legal transfer of copyright that meets the requirements of section 196 of the Copyright Act 1968 (Cth) (Copyright Act). The Copyright Act states that a copyright is;
- personal property;
- needs to be transferred in writing;
- the assignment needs to be signed by or on behalf of the assignor and which also allows for a total assignment or a partial assignment of the copyright.
What is included in a copyright assignment?
A copyright assignment template contains optional clauses that can be used if it is appropriate to address the moral rights of the author of the copyright works or other material or the performers’ protections that may exist if a performance is recorded on cinematographic film or sound recordings.
This template also ensures that the transfer is within the scope of copyright law. This can also include things like warranties and terms.
Whole or partial assignment
Within the copyright assignment, it needs to be determined if the assignment is wholly or partially transferring rights. This allows for either all the copyright to be transferred or the transfer of copyright to be limited as allowed by section 196 of the Copyright Act.
Section 16 of the Copyright Act states a “partial assignment of copyright shall be read as a reference to an assignment of copyright that is limited in any way”.
The limitations allowed in section 196 of the Copyright Act are broad, and include a limitation in any way, including:
- to apply to one or more of the classes of acts that are with the exclusive right of the copyright owner (such as, reproduction, publication, performance, or communication to the public, and can also describe the specific media and methods of exploiting the copyright);
- to be limited to geographic areas or jurisdictions (such as to apply to a place in or part of Australia, worldwide, or specified countries); or
- applying to part of the copyright duration.
If the material being assigned is a cinematographic film, it may incorporate copyright works and other material (such as other cinematographic film and sound recordings) that are owned by a third party or the cinematographic film may include performances that are subject to the performers’ protection provisions of the Copyright Act.
Where the assigned works contain such performances, the assignee may want to have the benefit of any agreement with the performer that provides a release or consent to describing the permitted uses of the performance.
Sound recordings may also include performances that are subject to the performers’ protections. The absence of the necessary permission of performers, whose performance is recorded on film, video, or sound recording may result in the performers having a right of action to stop the unauthorised exploitation of their performance.
There is an option to include the author of the works as a contracting party so as to provide for moral rights consent from the author.
Part IX of the Copyright Act provides for the moral rights of performers and authors of literary, dramatic, musical, or artistic works and cinematograph films. Sections 195AW and 195AWA of the Copyright Act address authors’ consent in relation to moral rights and section 195AXJ of the Copyright Act addresses performers’ consent in relation to moral rights.
The transaction of copyright assignment may be subject to GST. This is because the payments will be a “royalty” (as defined by Australian Income Tax Legislation). Moreover, the assignment will be subject to the withholding tax provisions, where the royalties are to an assignor who is a “foreign resident”.
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What are the benefits of having a copyright assignment?
There are a variety of benefits to having a copyright assignment agreement.
They are as follows:
- It protects the legal rights of all parties involved.
- Limits the possibility of disputes.
- Provides records of ownership and title.
- Outlines liability obligations.
- It ensures all legal procedures are followed and appropriate consideration is given.
Legal ramifications of not having a copyright assignment?
What is the difference between licensing a copyright and copyright assignment?
A licensing agreement is when you, as the licensor let someone else use your copyrighted material for a specific purpose, limited to a certain period of time.
This could be an exclusive license or a non-exclusive license. Under a copyright licensing agreement, you still remain the owner of the intellectual property.
On the other hand, a copyright assignment transfers ownership rights, therefore the new owner has possession of the intellectual property.
Can I include restrictions on my copyright assignment?
Yes, you are able to set the terms of the agreement. You can control how your copyright is used in the future. For example, there may be a term stating that you will not allow it to be used in a movie.
What happens if there is a breach of copyright assignment?
If one of the parties to the copyright assignment agreement breaches a term, an copyright infringement can be established
From here you can consult a lawyer to seek remedies and ensure your rights are protected.
When you register your copyright it provides you with solid legal protections. Therefore, when you transfer ownership, the copyright assignment therefore makes all the terms of the agreement clear.
If you have any questions regarding copyrights and how they can help you and your business, Lawpath has a variety of highly experienced intellectual property and copyright lawyers to provide any necessary legal advice.