26 june 2013

Copyright and License Contracts under Belarusian Law - What's the Difference?

Enactment of the Law of the Republic of Belarus «On Copyright and Related Rights» dated 17 May 2011 No. 262-Z (the Law) predetermined certain changes in regulation of contracts on use of copyright objects.

So called ’copyright contract’ is now determined as a specific type of license contracts, where a licensor is a copyright author. Such regulation is explained by the same legal nature of those contractual structures,however, copyright contract has certain peculiarities in comparison with the license contract: parties, certain essential conditions and a form of contract.

The Law clearly reflects the Belarus legislators’ intention to create a special sphere of copyright regulation with minimal statutory guarantees and assumptions, acting in the interests of authors.

Pursuant to Article 45 of the Law, a copyright contract shall provide for some specific rights of use of a particular existing copyright object to be transferred to the licensee. Thus, the wording «any and all rights are transferred» that is often used in practice should be interpreted as no agreement achieved on the rights transferred, and the copyright contract itself should be deemed not concluded.

It is also worth noting that the Law provides for an open list of rights that may be transferred; the parties are therefore free to agree upon such ways of use of copyright objects that are not expressly provided by the Law.

Unlike license contract, which must always include express provisions on period of copyright use, it is not mandatorily essential for the copyright contracts; the same is for the territory. In case a copyright contract fails to provide for the term and territory, it is deemed made for the whole territory of the Republic of Belarus and for three years from the date of execution.

The Law, by stating in Article 16 that an author has the right for remuneration, unless otherwise is stipulated by contract, effectively allows execution of copyright contracts providing for free-of-charge transfer of rights. Also, the rules for license contracts that are applicable for copyright contracts are that the license contract is presumed to provide for the remuneration, unless the contract expressly stipulate otherwise.

Therefore, essential conditions for a copyright contract are either remuneration (not less than the minimal amounts set by the legislation) and the procedure of its payment, or an express statement that the rights are transferred without any remuneration. If the copyright contract fails to provide for any of those alternative remuneration clauses, it should be considered as not concluded.

Pursuant to Article 45 of the Law, copyright contracts are mandatorily required to be executed in writing. Oral copyright contracts, as an exception, can be made for use of works in printed media. In our opinion, the possibility to make oral copyright contracts is unreasonably limited to printed media only, and should be extended to cover all kinds of media by making amendments to the Law.

Applicability of license regulation allows distinguishing exclusive and non-exclusive copyright contracts.In the latter case, the copyright owner may grant similar licenses to other licensees, while under the exclusive licensethe copyright owner is bound not to use copyright itself nor grant licenses to any third parties. In other words, when the license is exclusive, licensee becomes a sole user of the copyright for the particular territory and period of time.

The Law and practice of its implementation do not provide an answer to the question as to whether two agreements (exclusive and non-exclusive) can be entered into in respect of one and the same work. Although an exclusive copyright contract contemplates no other users of copyright on the same territory and for the same time period, we believe that if an exclusive licensee consents to such an ‘encumbrance’, the exclusive copyright contract could be made even with simultaneous existence of a non-exclusive third party contract.

The Law protects the author requiring that any sub-licenses can be granted only with the author’s consent.However, certain related questions are not solved, e.g. which rules should be applied to such sub-contract. The general answer is given by basic principles of the civil law, namely Article 5 of the Civil Code of Belarus, which provides for analogy of law, i.e. applying provision of law regulating similar relations to the relations that are not regulated. It is therefore a matter of choice between specific regulation of copyright contracts and general regulation of license contracts. As the main distinction of the copyright contract is that the licensor is an author, and this is no longer the case for any sub-contracts, we believe that general regulation on license contracts should be applicable to any sub-contracts made, when permitted and in accordance, with the main copyright contract.

 

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