Q&A: copyright ownership and transfer in European Union

Ownership and transfer

Who is the owner of a copyrighted work?

The owner of a copyrighted work is its creator or author. According to EU copyright law, both an individual person and, where the legislation of the member state permits, a legal person can be the owner (article 2(1), paragraph 1 of Directive 2009/24/EC (the Computer Programs Directive)). The national law of continental EU member states strictly distinguishes between moral rights (ownership) and exploitation rights. Only the latter can be transferred to others, including legal entities, whereas moral rights cannot be transferred or waived. Common law countries of the EU also recognise moral rights and do not allow the transfer of such rights, but they do allow such rights to be waived.

May an employer own a copyrighted work made by an employee?

Generally, creators or authors of a copyrighted work are the owners of the work regardless of whether they have created it within the scope of their activity as employees. However, the national law of EU member states may permit a legal entity designated as the rightsholder to be the owner of copyrighted work. It is also up to the national law to determine whether the employer automatically obtains the ownership of such work.

According to the Computer Programs Directive, there are special exceptions with respect to computer programs. If a computer program is created by an employee in the performance of their duties or according to the instructions of their employer, the employer is exclusively entitled to exercise all proprietary rights in the computer program, unless otherwise provided by the contract; ownership, though, remains with the author.

May a hiring party own a copyrighted work made by an independent contractor?

The independent contractor or its employees remain the owner of the copyright. An agreement is not a legal requirement to transfer or grant exploitation rights to the hiring party, but it is advisable to conclude such an agreement in writing, especially for evidentiary purposes.

May a copyrighted work be co-owned?

Yes, according to EU copyright law a copyrighted work may be co-owned. This is especially the case when a group of (natural) persons jointly create a work (see article 2(2) of the Computer Programs Directive 2009/24/EC). There are no stipulations regarding where co-ownership is held by legal entities.

May rights be transferred? If so, what rules and procedures apply?

Owing to the distinction between moral rights and exploitation rights in copyright law in the continental EU member states, the copyright itself cannot be transferred from the creator. The only exception to this rule is the transfer of rights to the heirs of the author after their death. Exploitation rights, on the other hand, can be granted by the author to third parties.

May rights be licensed? If so, what rules and procedures apply?

Yes, authors can grant rights of use to their work to third parties, including legal entities. The right may be granted as a simple, non-exclusive right or as an exclusive right. This right may also be limited in terms of territory, duration or type of use. There are no specific procedures stipulated by law. An ordinary agreement between the author or copyright holder and the third party is sufficient to grant such right.

Are there compulsory licences? What are they?

There are no standardised compulsory licences in EU copyright law. However, the issue of compulsory licences might become relevant in connection with cartel law and is a matter of EU case law.

EU legislation provides exceptions to the requirement to get authorisation to use a work in specific cases. in addition, the EU directives allow EU member states to stipulate legal licences for certain acts when providing fair compensation to the author. Furthermore, there is a form of compulsory licensing when collective management organisations are involved. Owing to their de facto monopoly, such organisations are obliged either to offer a licence to the user asking for it or to provide a reasoned statement explaining why they do not intend to license a particular service.

Are licences administered by performing rights societies? How?

EU copyright law provides that rightsholders may choose to have their rights held in trust by collecting societies or collective management organisations for collective management. Directive 2014/26/EU (the Collective Rights Management Directive) specifies certain requirements regarding the administration of such societies and organisations, including membership status, management of rights revenue and supervision by the authorities.

Is there any provision for the termination of transfers of rights?

According to EU copyright law, the copyright itself cannot be transferred. Therefore, the issue of termination of transfers of rights does not occur. However, the author might terminate a contract granting usage rights if provided by the contract (eg, where there is a material breach of contract). However, 70 years after the death of the author the copyright in the relevant works automatically terminates.

Can documents evidencing transfers and other transactions be recorded with a government agency?

No, documents evidencing transfers and other transactions may not be recorded at a government agency at EU level.