The Copyright Attorneys at Singhwal have vast experience of acquiring Copyright licenses since 2010. Intellectual property rights are intangible rights which are capable of being assigned or licenced to those seeking to commercially exploit them. Such assignment or licencing can either be jurisdiction specific or the medium specific or may licence or assign all the underlying rights to the assignee or licensee subject to the agreement between the assignor/licensor and the assignee/licensee. Copyrights are essentially tradable commodities and licences or assignments are the mode in which the trade is given effect.
Assignment of Copyright:
The rights in a Copyright can be transferred absolutely in favour of another person either in exchange of moneys or in gratuity. An assignment is essentially a change in the title of the owner of the Copyright. The new owner has complete control and authority over the copyright and may exploit if commercially as he deems fit.
Assignments are essential tools of ownership transfer in industries such music and cinema where large groups of creators collaborate together to create content the copyright ownership over which they collectively assign to the Producer of the content. The Producer now being the Assignee of the Copyright has all rights which the copyright owners previously enjoyed other than moral rights.
It must be noted that the moral rights are unassignable rights under Copyright system and even upon an assignment of the Copyright in favour of a Producer the content creators still have a right to be attributed for its authorship when the work is circulated. This right to be acknowledged as the creator of the work does not give such creator any other right over the work. Therefore through an assignment agreement, all rights but for moral rights can be assigned or transferred to the Assignee or the Producer in the instant case.
Copyright Assignment Agreements are special agreements which the creator and current owner (Creator) of the copyright enters into with the future owner of the copyright (Producer) subject to such terms and conditions as may be reached between the parties in return for moneys to be paid as per agreed medium and upon agreed date or periodically over repeating interval of time.
Copyright Assignment Deeds are also useful when the creator wishes to transmit rights in the copyright in the face of death and may choose to assign the copyright to his legal heirs or to a trust which would use the proceeds from the Copyright in a manner which is laid down in the trust.
A licence in a copyright is granted to a licensee when the creator/owner of the copyright in the work does not wish to part with the ownership. Such ownership wishes to commercially exploit the copyrighted work in part or as a whole in return for a lump sum royalty or to be paid in parts. In such situations, a License is granted to a licensee who commercially exploits the works in return for moneys to the paid to the licensor in the form of royalty. The royalty paid could also be linked to the profits made by the Licensee to be paid in such instalments as may be agreed upon. Licences can be territorial in nature of can be granted for the entire jurisdiction. The law allows for a license to be granted to multiple licensees or a single licensee.
Types of License:
Licences can broadly be classified into the following categories based on the terms of the license. Royalty payments have a direct impact on the nature of the licence granted to the licensee.
An exclusive license grants to the licensee the exclusive right to exploit the copyrighted work. Such licensee can exclude all others including the owner of the copyright, from commercially exploiting the copyrighted work. Given that the licensee becomes the exclusively authorised to exploit the work, the royalty to be paid is typically higher than other licences.
Exclusive licences can either be granted for a fixed time period or can be perpetual in nature. In case of a perpetual licence, the licensee is authorised to exploit the work until such time as the copyright subsists.
When the copyright owner does not wish to part with the authority to exploit the copyright entirely, he may choose to grant a non-exclusive licence to the copyright whereby remaining open to commercially dealing in the work himself. Alternatively the owner can grant licenses to multiple parties as in the case of soft wares being licenced.
Non-exclusive licenses further can be granted for a fixed term or may be granted in perpetuity depending on the agreement between the parties. The licensee may be given the option of renewing the license subject to fresh negotiations and a fresh agreement may be entered into to extend the license.
Given that a copyright subsists in the author/creator of the work by virtue of its creation without there being the need to register the same, there are situations such as when the artist or author is commissioned to work under a “Work for Hire” or under a “contract of service” whereby the Copyright vests with the person commissioning it. In such cases, the author or the creator does not have the authority to license it to anyone. The author or creator is in the relationship in the nature of employee – employer.
On the contrary in situations where the same author or creator is commissioned under a “contract for service” then the ownership of the Copyright over the work is with the creator or author and the relationship is in the nature of a “Client and Contractor”. In this circumstance the author retains the ownership of the copyright and is free to license the work to any other party, either exclusively or non-exclusively.
Therefore the contractual relationship between the parties is important to be able to draft and execute a legally sound License Agreement.
Licences and assignment deeds are crucial in events such as when an author or creator is commissioned for a work and there is a death of the assignee to such future work, before the work comes into existence then the legal representatives of that assignee become entitled to receive the benefits of the copyright subject to provisions to the contrary.
Copyright Licensing and Copyright Societies
Monetisation of a copyright in a work requires Licenses to be drafted and executed between the parties. Given the scale at which some of these copyrighted works are monetised and given the complexity of transactions, there are special bodies called Copyright Societies which may be registered under the Copyright law in India which provide for a simplified mechanism for monetising the copyright. The author or creator must authorise the Copyright Society to act in his behalf. Such authorisation is through an agreement between the author/creator and the Copyright Society whereby the society issues licenses to individuals in accordance to the rights that are administered by the respective society, including the collection of the fees for pursuance of the licenses and the distribution of the fees to the copyright owners after administrative expenses deductions. The procedure for getting copyright licenses is filing an application form and submitting the form in the respective societies. Then a scrutiny is done and some legal formalities is performed and the licenses is issued. The application for copyright license in India can be applied by any person and it will grant the person the right to not just produce but also to publish the translations of a dramatic or literary work in other languages for general purpose uses in India, and this can be done after a three year period after the work has been published, and the translation should serve the purpose of scholarship or teaching or research. Copyright is administered as a legal safeguard against others piggybacking off of the creators work and financially benefiting from the same. To incentivise the creators and to ensure that they benefit from their work, the law provides for a limited monopoly right in favour of the creators whilst seeking to ensure that the work reaches the widest possible audience. The idea is to promote information dissemination. This is publication is stressed upon in the Copyright system.
There may be situations where by a copyrighted work is not freely available for the people and there is a wrongful constrain on its dissemination. To ensure that Copyright does not become an impediment in the dissemination of knowledge, the Indian Copyright Law provides that where two or more persons have make a complaint to the Copyright Board for not being able to access the work and being unable to secure a licence license in India then the law provides that a license shall be granted to the complainant who in the opinion of the Copyright Board would best serve the interests of the general public and ensure that the information is disseminated far and wide.
We at Singhwal assist our client in studying the factual situation of the case, analysing the implications of the facts and formulating a legal course which best fits the needs of the clients.
Our services include drafting copyright licenses, drafting agreements, drafting terms and conditions of engagement, negotiating licence terms, negotiating royalty amounts and payment schedules. We also provide agreement execution services and enforcement services. Furthermore we represent our clients before various government agencies including the Copyright Board and assist our clients in procuring copyright licenses from the various copyright societies for a smooth running of their business.
Copyright and Software
Software is subject matter covered under the Copyright law and software licencing is a crucial aspect of monetising software copyright and form a core aspect of more software company’s business strategies. We at Singhwal understand the needs of the software creators and work with them to ensure that their software products are best protected under Copyright law and are able to monetise the copyright to the most possible extent.
Open Source Licencing
Software development over the last decade has changed drastically and has taken a more social approach to development. Open Source software development is becoming a major driver of growth in the industry and is entirely governed by copyright licencing agreements between the various stake holders. Complicate legal frame work has developed as a consequence where by software developers can be taken by surprise especially when such developers deal with open source software code.
Open Source licencing is a legal framework whereby a software code is developed and made available for all to use under an open source agreement which requires that every person using that code to further develop a software also ensure that the outcome of the development remains to be open for others to use and further develop. We at Singhwal assist our clients in negotiating the tricky terrain of open source licenced software.
At Singhwal, we also provide licence agreement vetting services where we ensure that any licence agreement out clients are required to enter into have our clients rights protected. We work with Copyright societies on behalf of our clients to ensure that the documentation required for monetising each of the copyright is performed flawlessly.
Royalty negotiations are an important aspect where we add value in our clients business. Our attorneys assist and guide out clients through the entire legal process and also represent them in courts of law to ensure licence agreements both nationally and globally.