An author can make use of his copyright in a number of different ways. He can exercise all his rights himself, but he can also allow others to do so – for example a publisher – by transferring his rights or granting a licence.
Even though there are nowadays many new methods of publication that make it easier for an author to publish, authors still often choose to transfer their rights to a third party. If he decides to do this, the author can decide for himself what components of his copyright he wishes to transfer; he is certainly not obliged to transfer the entire copyright unconditionally.
Transfer
Section 2 of the Copyright Act provides that the transfer of copyright – whether in its entirety or just in part – can only take place in writing. The transfer applies only to those powers that are expressly stated in the agreement or that necessarily arise from the nature or scope of the agreement.Opinions differ as to just what rights are transferred in such a case. Some authorities apply a narrow interpretation of Section 2 while others interpret it more broadly.
The narrow interpretation assumes that only those rights are transferred that the parties consider necessary for the intended use and that were their primary consideration when they concluded the agreement. If one wants it to be perfectly clear what rights are being transferred, then one must specify them as precisely as possible in the contract.
The broader interpretation is to the effect that a transfer formulated in general terms is possible, without a precise specification of all the particular rights that are to be transferred.
Transfer of future works and types of exploitation
The Copyright Act says nothing about the transfer of future works. In practice, it is possible to transfer works that have not yet been written if the content and nature of the work concerned has been specified sufficiently. The provision “transfer of all copyright in the works that the author will create in the future” is extremely broad. Tightening it up gives the author greater protection against the full transfer of his copyright.
The Copyright Act does not say anything either about new types of exploitation such as those that have come into use in recent years, for example the Internet and the CD-ROM. Transferring the rights in respect of as yet unknown types of exploitation is possible if this takes the form of a clearly specified full transfer of rights.
In practice, this means that the author can normally distribute publications from before 1997 – the date of general introduction of the Internet – for example by including them in an institution’s repository. As regards works from after 1997, authors are expected to know that an overall transfer also includes the electronic rights. Since 1997, many publication contracts have in fact been amended by explicitly specifying electronic rights.
Licensing
Granting a licence can produce the same result as transferring rights. A licence is no more than permission granted by the copyright holder to carry out certain actions that are covered by copyright. Contrary to what happens in the case of a transfer, an author who grants a licence retains his copyright.
The difference between transferring and licensing can be compared to the difference between selling and renting out your house. If you sell it, there is a new owner; if you rent it out, you only give someone else the right to use it.