Copyright in a work vests exclusive rights on the right holder to do and control the doing of a number of specified acts in relation to the work in which copyright subsists. The acts protected by section 6 of the Copyright Act include : to reproduce or make copies of the wok; publish the work; perform the work (in the case of a literary or musical work); produce, reproduce, perform or publish a translation or adaptation of the work and to distribute the work to the public for commercial purposes. The owner of copyright in a literary or musical work also has a right to make a movie (cinematograph film) out of his works, while the owner of copyright in an artistic work has the right to include it in any cinematograph film. In the case of a cinematograph film (movies, documentaries and even music videos), the right owner, in addition to all other rights, also has a right to control the public viewing of his work. This explains why streaming services such as Netflix and cinemas have to acquire the right to air movies from the right owners before they can screen them. All of these rights- the right to reproduce, publish, perform, distribute the work for commercial purposes, make a cinematograph film from the work and make an adaptation or translation of a work protected by copyright are all referred to as economic rights. They are referred to as economic rights because unlike moral rights, they permit the author/right owner to derive financial benefits from his work.
One of the ways through which an author can derive financial or economic benefits from his work, is through the grant of licenses or an assignment of his copyright.
A license is different from an assignment. A license is legal authorisation given by a right holder (or a person with authority to give such authorisation) referred to as the licensor, to another person (known as the licensee) permitting him to do one or all of the acts covered by copyright. While an assignment of copyright is a legal transfer of ownership of copyright. A license is mere approval, authorisation or permission to do any of the acts that are exclusive to the copyright owner, while an assignment transfers ownership of copyright to the assignee, thereby divesting the author of copyright in the work. When a copyright owner assigns his copyright, he ceases to own copyright in the work, but retains his moral rights. A license may be an exclusive license, a non-exclusive license, or a compulsory license.
Copyright gives the right owner a bundle of divisible economic rights and each of these rights may be licensed or assigned to different people. A license or an assignment of copyright may be restricted to only a particular act covered by copyright or some of the acts covered by copyright. It may also be limited to a number of years or may be extended to the entire life span of the copyright. Also it may be limited to a specific country or geographical location or continent. For example, Chimamanda Adichie’s literary work,’ Half of a Yellow Sun’ has been published in about 37 other languages. A license may have been obtained by each of the 37 translators to translate the work into different languages. The book has also been adapted into a film; a license would have been obtained before the work was made into a movie. Thus, the right to reproduce a work may be licensed or assigned to one person, the right to do a translation may be licensed or assigned to another person and the right to broadcast the work may be given to yet another person. The license granted or the right assigned may be restricted to a particular geographical location.
Section 11(3) of the Copyright Act provides that an exclusive license and an assignment of copyright must be in writing. An exclusive license is a license granted to only one person authorising the doing of an act or acts covered by copyright, to the exclusion of all others, including the copyright owner. Whereas a non-exclusive license is authorisation to do an act or acts, granted to several persons. Where in contravention of the Copyright Act, an assignment of copyright is not in writing as stipulated by the Copyright Act, it shall be void. Also, where an exclusive license is not in writing, the court my construe it to be a non-exclusive license or may declare it void. On the other hand, a non-exclusive license may be written or oral. In some cases, the grant of a non-exclusive license may also be inferred from conduct. Infringement of copyright occurs when any of the acts covered by copyright is done without the permission of the author /right holder. It is for this reason that obtaining a license or acquiring rights to a copyrighted work is essential. An assignment or license may be granted in respect of a work that is yet to be created and the right granted under the contract becomes exercisable upon creation of the work.
Certain clauses are essential in a copyright contract granting a license or assigning the author’s copyright to another. It is therefore prudent to get a lawyer involved in the negotiation and drafting of a copyright contract. This will help protect the interests of the negotiating parties and ensure that the contract accurately captures the intentions of the parties. It is common to see new and upcoming artistes, hungry for success, sign unconscionable contracts that rob them of all their rights in their creative works; they often realise too late that they have signed away all their rights. This is not peculiar to artistes, it is also seen among young creative professionals and start-ups that enter into negotiations with big companies. Safety lies in seeking professional legal advice.
1. ‘Half of a Yellow Sun – accessed 28 August 2020.