In the practice of law firms, agreements concerning the use of clients’ creative works (such as advertising films, marketing slogans, or mobile or web applications) are becoming increasingly common. The main issue in each case is determining how and to what extent the creator of these slogans, films, or applications allows others to use them.
What is a “work” in copyright law?
The definition of a “work” is clearly outlined in the first sentence of the Polish Copyright and Related Rights Act. In order for copyright protection to apply, the work must meet the following criteria:
- It must be the result of human effort,
- It must be the manifestation of creative activity (an intellectual process),
- It must have an individual character,
- It must be fixed (i.e., expressed in such a way that other than the author, people can identify the work).
A work is thus an intangible (intellectual) good, expressed in a material form (for example, a TV commercial, a marketing slogan, a picture, graphic, logo, or office management software).
License vs. transfer of copyright to a Work
Once a work is created, its author can allow others to use it. For example, a software creator can implement it for their client; an advertising creator can agree to its broadcasting by a specific entity on particular media (TV, YouTube, etc.). Depending on how far the “permission to use” extends, there is the option to grant a license or transfer the economic copyright.
The most illustrative way to present the difference between these two institutions is to compare them to a simple mechanism known from the real estate market – i.e., renting and selling an apartment. Granting a license is, in simple terms, similar to renting an apartment (i.e., allowing use of the property under agreed terms without transferring the ownership of the apartment). On the other hand, transferring copyright would correspond to selling the apartment (i.e., permanently transferring the rights to the buyer).
Exploitation fields of a Work – what can be done with a graphic, logo or photo?
The scope of the license, as well as the scope of the transfer of copyright, can be quite freely shaped in terms of how the work can be used. It is very important to specify in the contract the particular fields of exploitation (i.e., areas/methods of using the work), which define how the entitled party can use the work.
The most common fields of exploitation listed in agreements include: fixing or copying the work using a specific technique, introducing it to circulation (i.e., for example, selling a painting, granting a software license), lending or renting the original or copies, public performance, exhibition, broadcasting, and re-broadcasting (e.g., displaying an advertisement online for a certain period of time).
Correctly defining the fields of exploitation of a work is crucial: it sets the boundaries of permissible use of the work. For example, the author of a graphic or drawing may allow its use by publishing it (displaying it) in an art gallery – but may not wish to consent to its publication by the gallery through the production of mugs promoting the gallery, with the graphic or drawing printed on them.
Key differences between a license and transfer of copyright – permanence and exclusivity
The most important differences between a license and the transfer of copyright are the issues of permanence and exclusivity. If rights are transferred, the effect will be permanent (going along with the apartment sale analogy), and only the buyer of the rights will be entitled to use the work. Conversely, if a license is granted, it is usually a temporary solution, and the licensee is not necessarily the only person using the work.
The issue of copyright protection is a very broad topic, and it is impossible to succinctly cover all the related issues. For example, related topics include types of licenses, which can be read about HERE. However, it is crucial to recognize the fundamental difference between granting a license and transferring economic copyright.
