The Foundations of Transferring Copyright and the Role of the Contract
For any enterprise that creates or uses intellectual products, the central legal question is who holds the copyright and how it may be transferred. The law establishes that copyright is transferred by operation of law, by will through inheritance, or by contract. Each route leads to a different result: law and will operate within the term of the copyright and concern only the special rights of use, while a contract determines, by agreement of the parties, precisely who uses the work, in what manner and on which territory. That is why the principal instrument of licensing relationships at enterprise level is the written contract.
The distinction between personal and proprietary rights is fundamental. The rights of authorship, of the name and of the inviolability of the work are not transferred by inheritance — heirs only receive the capacity to protect those personal rights, and that capacity is not limited in time. Proprietary rights, meaning the ability to use the work, are fully transferable: an author or another holder of copyright may transfer all proprietary rights or a part of them to a successor. An author may also designate a person who will protect those personal rights until the author’s death; where heirs do not exist or do not properly exercise the right of protection, it is exercised by the National Intellectual Property Centre Sakpatent.
The Exclusive Licence and Its Practical Significance
For an enterprise, the exclusive licence agreement is the most interesting instrument, because under it the author or another rightsholder grants only to the licensee the exclusive right to use the work in the manner and within the limits defined by the contract, and also confers on the licensee the right to prohibit such use by other persons, including the author. This means that a competitor cannot lawfully enter the market with the same content, and the licensee defends its position with a legal instrument rather than only with arguments. If the licensee does not exercise the right of prohibition, the author may exercise it. An exclusive licence differs from a full assignment in that the scope of the right is limited by the contract and the remaining scope stays with the author.