This assignment puts into effect a legal transfer of copyright that meets the requirements of section 196 of the Copyright Act 1968 (Cth) (Copyright Act), which requires an assignment to be in writing and signed by or on behalf of the assignor and which also allows for a total assignment or a partial assignment of the copyright. The document 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.

To be effective as a deed, this document should be witnessed and signed by a person who is not a party to this deed.

Whole or partial assignment

There are two options for the definition of copyright in clause 1, which 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.

The first option is to be used where all of the copyright to be transferred, and the second option for when the assignment will be limited, ie there will be a partial assignment of copyright. 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, of 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.

Performer’s protection

If the material being assigned is 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 in part XIA 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 the film, video or sound recording may result in the performers having a right of action to stop the unauthorised exploitation of their performance.

Moral rights

There is an option to include the author of the works as a contracting party so as to provide for a moral rights consent from the author.

Part IX of the Copyright Act provides for moral rights of performers and of 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.

Tax

The transaction may be subject to GST (as addressed in clause 6(a)) alternatively in respect to a “foreign resident” assignee the payments may be subject to “withholding tax” (as addressed in clause 6(b)). That is, the payments will be a “royalty” (as defined by Australian Income Tax Legislation) and subject to the withholding tax provisions of that legislation when the royalties are to an assignor who is a “foreign resident”.

However, if the payment is made to resident of a country with which Australia has a tax treaty, the rate of withholding tax may be reduced or no tax is required to be withheld.