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Internationaler Gewerblicher Rechtsschutz und Urheberrecht II

The US Copyright Law has only rudimental provisions for copyright contracts. The copyright contract law distinguishes between transfer of ownership– meaning the entire copyright is transferred to a different owner – and the licensing– meaning that the author allows contractually a third party to use his work (i.e. for publication) while the author remains owner of the copyright. The licensing is nearly non-regulated (exemption in 17 U.S.C. §§ 203, 205); therefore solely the general contractual law is applicable but the provisions of 17 U.S.C. § 204 can be considered additionally.

§ 201 – Ownership of copyright

(1) The ownership of a copyright may be transferred in whole or in part by any means of conveyance or by operation of law, and may be bequeathed by will or pass as personal property by the applicable laws of intestate succession.

(2) Any of the exclusive rights comprised in a copyright, including any subdivision of any of the rights specified by section 106, may be transferred as provided by clause (1) and owned separately. The owner of any particular exclusive right is entitled, to the extent of that right, to all of the protection and remedies accorded to the copyright owner by this title.

(e) INVOLUNTARY TRANSFER.—When an individual author's ownership of a copyright, or of any of the exclusive rights under a copyright, has not previously been transferred voluntarily by that individual author, no action by any governmental body or other official or organization purporting to seize, expropriate, transfer, or exercise rights of ownership with respect to the copyright, or any of the exclusive rights under a copyright, shall be given effect under this title, except as provided under title 11.

The transfer of ownership is possible voluntarily – e.g. by contract or by will – but with the exemption of the case of the insolvency (11 U.S.C.) of the author not involuntarily. Even a valid voluntary transfer of ownership can be terminated by the author after an appropriate period for exploitation of the work (17 U.S.C. § 203). Requirements for a valid transfer of ownership are described in 17 U.S.C. § 204.

Requirements for a valid transfer of ownership:

 (image: https://hssm.hqedv.de/uploads/IntUrhRContracts/IntUrhRTransferOwnership.jpg)

The problem of conflicting transfersor licenses is clearly seen by the US Copyright Law. The solution to this problem lies in the competence of the Copyright Office (17 U.S.C. §§ 701 pp.). If a transfer or license document is send to the Copyright Office it will certificate and record that document. The earlier recorded transfer or exclusive license is the valid one and the new owner resp. licensee is in good faith. A non-exclusive license prevails only if it is executed before the transfer or its recordation (17 U.S.C. § 205).

 (image: https://hssm.hqedv.de/uploads/IntUrhRContracts/IntUrhRTransfer.jpg)

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