Transfer of rights

The second-hand bookstore

Given that copyright and associated economic rights are automatic and first ownership vests with the author (or sometimes the employer in the case of works created during the course of employment in common law jurisdictions) the distribution and marketing of copyrighted works very often require the transfer of rights to the distributor. This may involve some form of contractual remuneration or compensation in the form of a fixed fee and/or royalties based on the sales volume of the published work.

How do you transfer rights?

There are two ways in which the transfer of rights can occur:

• Assignment, where the assignee becomes the new owner of the copyright, for example, an academic or university who assigns the full copyright of a research article over to a scholarly journal, very often without compensation other than the prestige of being published in the journal concerned; or
• Licensing, where the copyright holder retains ownership of the rights but contractually grants permissions for certain acts under the owner's economic rights for a specific purpose and specific period of time, for example, providing a publisher the right to distribute printed copies of a novel and licensing someone else to develop a film script based on the novel.

Whether a work is assigned or licensed will depend on the nature of the work and the specific laws of the country where the rights are transferred. It is important to distinguish between the copyright in a work and the ownership of the physical object in which the creative work is embodied. For example, purchasing a book does not mean the purchaser owns the copyright. Similarly, purchasing an oil painting does not mean that the buyer has the right to adapt the painting because the rights of adaptation are associated with copyright. Nor does the owner of a physical painting have the rights to make copies without prior consent by the artist (the copyright holder), for example photographs for inclusion in a catalogue. However, individual rights associated with copyright which are transferred to the purchaser (if any) should be specified in the contract. It is possible, for example, for the copyright holder of a book to transfer the rights of distribution of the English version and license the translation (adaptation) rights to another publisher.

The transfer of rights generally relates to the economic rights of reproduction, distribution and adaptation and not necessarily to the moral rights of the author, for example, the right to attribution. In some common law countries, the national legislation may allow the author to waive certain moral rights. However in civil law jurisdictions, a creative work is considered to emanate from the personality of its creator and moral rights cannot be transferred. For this reason, in civil law jurisdictions, licensing is the usual method for transferring rights as they do not generally allow rights to be assigned. In common law jurisdictions, both assignment and licensing are typically used to transfer rights.

The legal framework to share knowledge freely

Copyright provides educators and education institutions with the legal framework to share knowledge freely -- without giving their copyright away.

The individual activities associated with economic rights, namely the rights to use, reproduce and adapt creative works can be licensed individually to third parties. Therefore, the first holder of copyright may license the permissions to use, reproduce and adapt materials in advance without forfeiting his/her copyright. This is the legal enabler for Creative Commons licenses which provide us with the tools to share knowledge and creativity freely.

There are a growing number of education institutions around the world who believe that educational materials funded by tax payer dollars should be licensed openly for use by all learners of the world, and have adopted open licensing intellectual property policies. These initiatives are now gaining further support through governments adopting open access licensing for publicly funded content.

Education institutions and governments leading by example as a matter of policy

There are a number of institutions who are leading the adoption of free and open content resources for education. Consider for example:

• Education institutions implementing intellectual property policies in support of open education:
  • The OER friendly intellectual property policy adopted by Otago Polytechnic, New Zealand, in 2008.
  • The Free Content, Free/Open Courseware Policy passed by the Senate of the University of the Western Cape, South Africa in 2006.
  • Albany Senior High School Intellectual Property Policy, New Zealand.
  • Warrington School license policy, New Zealand.
• Governments supporting open access licensing frameworks:
  • New Zealand Government Open Access Licensing Framework
  • United Kingdom Open Government License
• International agencies:
  • Commonwealth of Learning's OER policy

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