Use of copyright

There are various ways in which a creator can exercise their copyright. They can exercise all rights personally, but they can also grant others the opportunity to use them, such as a publisher, by assignment or by granting a licence.

The author can personally decide which component of his or her copyright they are assigning, because they are certainly not obliged to assign the entire copyright unconditionally. If another party uses this copyright then, based on the Dutch Copyright Act, the creator is entitled to fair compensation for that use.

The difference between assigning and issuing a licence is comparable to the difference between selling and leasing a house. Sale involves a new owner; a lease only gives someone permission to use the house.

Assignment

Partial or full assignment of copyright can only take place in writing (Section 2 of the Dutch Copyright Act). The assignment only relates to those rights that are explicitly stated in the agreement or which necessarily stem from the nature or scope of the agreement.

Sometimes the assigned rights are described as precisely as possible in a contract. Sometimes a generally formulated assignment, without a precise summary of all of the rights to be assigned, is also possible.

Certain moral rights are not eligible for assignment and therefore always remain with the creator, for the duration of the copyright at least.

The rapid developments in ICT and the Internet are continuously resulting in new forms of distribution and exploitation. The Dutch Copyright Act makes no mention of assignment of a work that is published in a new form of exploitation. The assignment of rights on as yet unknown forms of exploitation, such as the Internet and CDs and DVDs years ago, is possible, provided there is a clearly described full assignment of rights.

On the other hand, a judge could rule that a clause in a contract allowing the exploiter to market a work using a future, as yet non-existent, form of exploitation is impermissible based on standards of reasonableness and fairness. Those contract clauses could then be annulled (stricken).

The assignment of copyright on works published prior to 1997 – the widespread introduction of the Internet – only related to paper publications and not to digital versions. In practice this means that an author can usually distribute pre 1997 publications in an electronic form without problem, in the form of inclusion in the institution’s repository for instance. Post 1997, authors can be expected to know that full assignment also includes the electronic rights. In that period, many publishing contracts were modified to explicitly include the electronic rights.

Licence

A licence is an agreement in which the copyright holder grants someone else permission to perform certain actions that fall under copyright. Unlike assignment, the creator retains copyright with a licence.

 A licence can also be agreed in writing. Finally, a licence can be exclusive (to a single party only) or non-exclusive (to a number of parties).

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