Contracts should be concluded in writing
For reasons of clarity and proof, authors of a work who wish to assign their rights in this work should always conclude a written contract (signed by both parties).
3.4.1 Assignment of rights by contract
Authors who wish to assign all or part of their rights to third parties must sign a contract. The contract should set out the exact content and scope of the assignment of rights, as Art. 16 para. 2 CopA states that only the agreed rights are assigned. In practice, it is often difficult to establish this exactly, either because the content of the contract was not written down or because, for example, one or both contracting parties did not formulate their intentions clearly enough in the contract. Such a contract does not have to be concluded in a specific form, e.g. a written contract. Oral agreements are also valid, as are tacit assignments of rights.
If it is still unclear which rights an author wished to assign and to what extent the author wanted to assign these rights, the following interpretative aids can help:
- No moral right of the author: even if the contract does not make it sufficiently clear which copyrights should be assigned, the moral right of the author is not included. This is excluded from the assignment of rights. As a result, the right of first publication (Art. 9 para. 2 CopA) and the right of recognition of authorship (Art. 9 para. 1 CopA) in particular cannot be part of the subject of the contract. However, when publishing a work for the first time, an author can make use of the support of mediators.
- Statutory provision by Art. 16 para. 2 CopA: according to this provision, the assignment of copyrights only includes other partial rights if this was agreed. For example, if the contract only mentions the assignment of the right of reproduction (Art. 10 para. 2 (a) CopA), the work may not also be distributed (Art. 10 para. 2 (b) CopA).
- Principle of assignment limited to purpose: if the contract does not make it absolutely clear which rights should be assigned, the purpose for which the contract was concluded must be considered. Thus, only those (partial) rights needed to achieve the purpose of the contract are considered to have been assigned. If there is any doubt, an author does not grant any additional rights.
For example, if a journalist wants to publish an essay in the print edition of a daily newspaper, this is the purpose of the contract and the journalist assigns only the right to reproduce and distribute in a printed newspaper. The contract purpose does not include the publication of the essay in an online edition of the newspaper.
TO CONSIDER
FAQ
3.4.1-1 What should I do to assign my rights to third parties?
Authors who wish to assign all or part of their rights to third parties must sign a contract. The contract should set out the exact content and scope of the assignment of rights, because only the rights that were agreed are assigned. For reasons of clarity and proof, authors should always conclude a written contract (signed by both parties).
3.4.1-2 If a participant creates a copyrighted work during a research project, what should the project’s researchers determine?
They should determine whether the participant has transferred copyright or granted permission for the storage, sharing, and reuse of their work.
If no transfer of copyright has been agreed, participants remain the rights holders of any copyrighted works they create during the project, unless it can be implicitly established that the rights were transferred for the purposes of the project. Because this can be difficult to prove in the event of a dispute, it is recommended to establish a clear, written transfer of rights to the project institution(s), allowing researchers to use and share the research data.
However, transferring copyright does not change authorship: the author always remains the author of their copyrighted work, even when the economic rights have been transferred.