Types of copyright and ways to sell them

Subject matter of copyright

A work is understood to mean any manifestation of creative activity of an individual nature, fixed in any form, irrespective of its value, purpose or mode of expression. In particular, the following works are subject to copyright:

• expressed in words, mathematical symbols or graphic signs (literary, journalistic, scientific, cartographic works and computer programs);
• visual and photographic works;
• musical;
• industrial design;
• architectural, architectural-urban planning and urban planning;
• musical and verbal-musical;
• theatre, theatre and music, choreography and mime;
• audiovisual (including film).

However, this list is not exhaustive. Works may also take forms other than those listed above; what is important is that they meet the conditions set out for a work under the Act on Copyright and Related Rights. A work is subject to copyright from the moment it is fixed, even if it is still in an unfinished form.

The Act on Copyright and Related Rights divides copyright into: economic rights and moral rights.

Economic rights

Economic rights are rights of a financial nature, modelled on the right of ownership. The author has the exclusive right to use and dispose of the work in all fields of exploitation and to receive remuneration for the use of the work. Anyone wishing to use the work must first obtain the consent of the author or their legal successor. Such consent is not required in the case of non-commercial use of a work that has already been published for personal use, or in the case of quotation.

Economic copyright, unlike moral rights, is transferable. It may pass to another person:

• by inheritance;
• by contract,

and, unless the agreement with the author provides otherwise, the acquirer of the rights may transfer them further to other persons.

Economic copyright is also characterised by the fact that it expires. Subject to the exceptions provided for in the aforementioned Act, economic copyright expires after seventy years, inter alia:

• from the death of the author;
• from the date of the first publication of the work, if the author is unknown, unless the pseudonym leaves no doubt as to the author’s identity or if the author has disclosed their identity;
• in respect of a work for which economic copyright is vested by law in a person other than the author – from the date of the work’s publication, and where the work has not been published – from the date of its creation

Moral rights

Moral rights protect the bond between the author and the work. They are perpetual and inalienable and cannot be waived by the author. Moral rights include, in particular, the right to:

• claim authorship of the work;
• attribute the work to one’s own name or pseudonym, or to make it available anonymously;
• the integrity of the work’s content and form, and its fair use;
• decide on the first public disclosure of the work;
• supervise the manner in which the work is used.

The non-transferability of moral rights means that they cannot be transferred on the same terms as economic rights. They cannot therefore be sold and are not inheritable. However, it is possible to include a clause in a contract whereby the author of the work undertakes not to exercise moral rights against the contractors of the entity with which the contract is concluded.

What are derivative rights to a work?

An entity entering into a contract transferring copyright in works should also include in the contract the possibility of exercising derivative rights to the work. Derivative rights should be understood as the creation of a derivative work based on another’s work, in particular its translation, modification or adaptation. The purchaser of the work may dispose of and use derivative works of the work if the author has previously granted them appropriate consent in this regard (provided that the economic copyright in the original work has not expired). The transfer of economic copyright in a work without authorisation to exercise derivative rights in respect of it prevents the disposal of and use of an adaptation of that work. This is because, pursuant to Article 46 of the Act on Copyright and Related Rights: unless the agreement provides otherwise, the author retains the exclusive right to authorise the exercise of derivative copyright, even though the agreement provides for the transfer of all economic copyright.

Therefore, when entering into an agreement transferring copyright in a work, it is worth bearing in mind that, despite the transfer of economic copyright, the author retains other rights in respect of the work; it is therefore advisable to protect oneself appropriately in this regard, taking into account the scope of the work’s use.

Author

Zuzanna Bokina-Kielbasa

Radca prawny, Managing Associate

Specializes in corporate services for business entities and personal data protection. Assists the firm's clients in the preparation of all corporate documentation, including the registration of commercial companies and the further registration of changes, and provides ongoing and comprehensive advice on business. Provides advice in carrying out transformation processes of commercial companies, including transformations and mergers. Prepares and gives opinions on contracts, regulations and current documentation…

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