Copyright in contracts

Technological and economic development of a country or business depends significantly on the creativity of individuals. If the result of creativity were not protected by law, the incentive to develop creative works would be limited. Copyright law protects an owner of ‘intellectual property’ against those who ‘copy’ the work. It also encourages the publication and dissemination of ‘creative’ works because it provides legal remedies enabling the copyright owner to derive benefits from the work.

Scope of copyright[1]. It is important to note that copyright protection also covers technological creations of the mind such as computer programmes, electronic databases, as well as the results of provided services. Furthermore, also non-artistic works such as technical guides, engineering drawings, maps, product manuals, and user guides are protected by copyright. In many jurisdictions, laws and regulations, as well as official decisions and judgments are considered to be in the public domain and cannot therefore be copyrighted.

‘Work’. Copyright protection relates to creations of the mind, also called works of authorship. This is a very wide concept and includes the following:

  • literary works (e.g. books, text on a website, manuals);
  • pictures, graphics and sculptures (including illustrations, plans and sketches);
  • software source code;
  • architectural works;
  • sound and video recordings (e.g. music and films);
  • any collection of the above (i.e. a selection as such may be a work).

‘Ideas’ excluded. The physical representation in which the copyrighted creation is expressed is protected. Copyright law does not protect the intangible creation: other than with patented inventions, copyright law protects only the form of expression of an idea, not the idea itself. The creativity in the choice and arrangement of words, sounds, colours or shapes is the object of protection under copyright law.

Originality. It is not necessary that the ideas expressed in the work are new or original. What is crucial is whether the form in which the idea is expressed (written or otherwise) is an original creation of the author. In order to be copyright protected, a work must be distinctly original and reflect the personal contribution of the author. It is unnecessary that the work meets a certain level of imaginativeness, or inventiveness. Also, the copyright exists regardless of whether the creation is beautiful, useful or of certain quality.

Copyright and service agreements. Whilst most service providers will not consider that their work for a particular customer justifies extra licence fees for using the work (in addition to the service fees for creating it), nevertheless if the services resulted in a ‘work of authorship’ and is ‘original’, a claim for licence fees would be justified.

The copyright: ‘use’. Copyright law distinguishes two types of protection. Moral rights allow the author to preserve the personal reference to the work. Economic rights allow the copyright owner to demand financial benefits (e.g. royalties) from others who use the work. The copyright owner can prohibit or authorise:

  • use;
  • reproduction;
  • import, export or distribution (resale) of copies;
  • in an increasing number of jurisdictions, rental (lease);
  • public performance;
  • broadcasting or other communication to the public;
  • translation or adaptation.

Translations and adaptations. A copyright includes the right to translate a work into another language or to adapt it. Adaptation or modification of a work is generally understood as creating another work. An adaptation includes extending a work or combining it with other products. Furthermore, extending or combining two non-original works may result in an original (copyright protected) work. Using or copying a translation or adaptation requires the approval from the copyright owners of the original work and of the translation or adaptation.

Fair use (limitation of rights. There are limits to the restrictions a copyright owner may impose on others who use a work. Whilst copyright encourages creativity and economic development, a limited use of (parts of) copyrighted works facilitates honourable purposes such as criticism (especially parodies), comment, news reporting, education and research. Such use is not an infringement of the copyright. Similarly, most copyright laws permit individuals to make a single copy of the original work for private, personal and non-commercial purposes.

Duration of copyright. Copyright does not continue indefinitely. The term of a copyright begins when the work is created (under some national laws, when it is expressed in a tangible form). The copyright usually continues for at least 50 years after the death of the author (i.e. the EU, USA and several other countries adopted a 70-year period). Local regulations must be consulted; because local and international legislation is continuingly under modification or discussion.

[1]           In many languages, copyright is translated and known as author’s right. The term copyright refers to the regulations regarding copying a protected work made by the author or with his/her authorisation. The expression author’s rights emphasises the central position of the creator and his or her rights with respect to the created work).

Terms of Use

I hereby accept (or reconfirm my acceptance of) Weagree’ Terms of use, in which:

Terms of Use

I hereby accept (or reconfirm my acceptance of) Weagree’ Terms of use, in which: