Copyright Law and Contract Law
When it comes to the exploitation and use of intellectual property rights, contracts play a pivotal role. It makes it possible to exploit intellectual property rights by allowing the transfer and licensing of exclusive rights bestowed under Intellectual Property Law, in exchange for monetary benefits. Contracts also regulate the relationship between authors/right owners and users in the dissemination of works which is mainly seen in the digital world like End-User License Agreements.
In the past few years, there has been a surge in the reliance on contracts for laying out the terms of access to innovative and creative works and inventions. This is bringing the challenge to the scope of intellectual property rights. The private parties also employ such sort of private ordering to go beyond the protection offered by intellectual property law.
If we speak about copyright law then as per the copyright law, copyright ownership is bestowed on the author who is regarded as the first owner of the copyright as well, excluding the situation when the work is generated in the course of employment. In practice, the first owner of the copyright generally does not hold on to all the rights in their work and exploit it. Usually, they will monetize their rights by entering into contracts with third parties who will then exploit the copyright. In order to do that, authors have the option to license their work on an exclusive basis, non-exclusive basis, or even assign their rights to a third party.
The copyright contract can be seen in various forms for example licensing arrangement through the mode of negotiation when an author and third party enter into negotiation on an individual basis and set the terms and conditions which will decide the manner of exploitation of copyright. The terminologies and content of the contract are decided based on the need of the concerned parties. This type of contract usually contains the clauses like the subject matter, territory, nature of the contract (if exclusive, sole or non-exclusive contract), duration, moral rights, royalties, and many others.
Then, there is a standard form of individual licensing wherein the authors of the work has no scope to negotiate the terms and conditions of exploitation of work. These types of licensing can be seen in terms of use of social network platforms like Instagram, Twitter, and Facebook. These types of standardized contracts are mainly offered on a take it or leave it basis. However, there are serious pitfalls to the terms of use of these social networking sites and are also unfair about which authors are unaware of who chooses these platforms to disseminate their work. Through their terms of use which are agreed upon by the users before accessing these sites, users are made to transfer to these sites broad licensing rights.
Through this, they are able to use the user’s content for any purpose which may include commercial and profit objectives, without the knowledge of the right holders. The users grant to these sites “a non-exclusive, royalty-free, transferrable, sub-licensable, worldwide license” and it can be used “to host, use, distribute, modify, run, copy, publicly perform or display, translate and create derivative works of user’s content”. Further, the sites also get themselves the right to modify the content which means the right holder’s moral rights stands affected. The problem magnifies as there is neither explicit indication about the duration of the license nor about the territorial extent. This would suggest that these sites can get a perpetual license on the content of the users.
Thereafter, the other type of licensing is a standard open license. Through these licenses, authors and right holders give the permission to exploit the copyright protected works in a specific manner by the public, and certain terms and conditions are set in the licenses. Here, the author of the work is able to retain ownership of their work while others are allowed to use it without arising any need to seek their permission.
An example of such sort of licensing is the licenses extended by the Creative Commons movement. The challenges which are often faced by the parties are the lack of equal bargaining power between the parties involved in negotiating a contract as a result authors may end up giving broader rights than they wish. Lastly, there is collective licensing which is offered by certain organizations on behalf of copyright owners who are also members of those organizations.
These organizations are called collective management organizations of collecting societies which are bestowed with the responsibility to authorize various use of their member’s works by granting licenses to users. This type of licensing is helpful in overcoming the challenges faced by individual authors in licensing their works in enforcing on their individual level.
