In practice, creators of copyrighted works often enter into agreements transferring all copyright to their works. This situation occurs both in agreements solely for the transfer of copyright and in publishing agreements. At the time of entering into the agreement, the creator is not always fully aware of the dispositions they have made, or, having such awareness, they accept the risk and take the action. Over time, the creator reflects and begins to wonder whether, by transferring the copyright, they have relinquished all rights to the work.
It is therefore worthwhile, focusing primarily on the analysis of the provisions of the Act of 4 February 1994 on Copyright and Related Rights (Journal of Laws of 1994, No. 24, item 83; hereinafter also referred to as the "Act"), to answer the question of what an author can do if they enter into an agreement under which they transfer all of their copyrights. First, it is necessary to consider whether we can actually speak of a transfer of all rights, even if the agreement contains clear and precise provisions regulating this matter, because according to Art. 41, Section 2 of the Act: " An agreement on the transfer of copyrights or an agreement for the use of a work, hereinafter referred to as the "license", covers the fields of exploitation expressly listed therein." Therefore, the key concept is fields of exploitation. A field of exploitation is a distinct manner of using a work, constituting a partial entitlement resulting from the author's economic rights. For example, the parties to the agreement may decide that the transfer of rights applies to the field of exploitation consisting in "public performance" while excluding the field of exploitation "broadcasting". However, the cited Article 41, Section 2 of the Act does not completely exclude discussions about allowing the transfer of all rights to a work, due to the phrase " transfer of all author's economic rights " appearing in Article 46 of the Act. It is also worth remembering that the Act lists only examples of fields of exploitation in which a work may be used. The parties to the agreement may freely define the fields of exploitation in the agreement, without relying on the names of the fields of exploitation contained in the Act. It is generally accepted that the fields of exploitation listed in the Act constitute only examples, and the list of fields of exploitation itself remains open.
Therefore, if the contract is worded in such a way that the creator "transfers all copyrights to the work" and does not specify the fields of exploitation, the creator may attempt to demonstrate that such a contract is invalid. In a situation where the contract includes a transfer of all rights and also specifies sample fields of exploitation, or states that the transfer applies "in particular" to the fields listed below, it can be assumed that the transfer occurred only in the fields specified in the contract.
A noteworthy provision protecting the interests of the creator is Article 44 of the Act, which states: " In the event of a gross disproportion between the creator's remuneration and the benefits to the acquirer of the copyright or licensee, the creator may demand an appropriate increase in remuneration from the court ." This provision can be very important for the creator. In a situation where the work becomes a box office hit and the creator received a small remuneration, e.g., a lump sum, for the transfer of rights, they may demand an increase based on this provision if they duly prove that the disproportion was gross.
In addition to economic copyright, the creator also has derivative copyrights, meaning the right to authorize the use and disposal of adaptations of their work. According to Article 2, Section 2 of the Act: "The disposal and use of a derivative work depends on the permission of the creator of the original work (derivative right), unless the economic copyright to the original work has expired. In the case of databases meeting the characteristics of a work, the creator's permission is also necessary to prepare a derivative." A derivative work, for example, includes its translation or adaptation.
In the case of contracts, Article 46 of the Act is also important, as it reads: " Unless the contract provides otherwise, the author retains the exclusive right to authorize the exercise of derivative copyright, even though the contract provides for the transfer of all author's economic rights." Therefore, even assuming that the author has transferred all author's economic rights to the work, if the parties have not provided for appropriate provisions regarding derivative rights in the contract, and their disposal has not been made on the basis of another contract, the author of the work is still the holder of these rights and remains entitled to demand appropriate remuneration from the entity wishing to use his/her adaptation.
The creator also has moral rights, as defined in Article 16 of the Act. The nature of moral rights precludes their transfer to another entity. However, it is possible to undertake, in return for compensation, not to exercise these rights against specific individuals if they infringe the creator's copyright monopoly in this respect. Furthermore, in the event of a violation of the rights specified in the aforementioned provision, the creator is entitled to claims specified in Article 78 of the Act, which allow them to take specific legal action against potential infringers, including the entity that acquired the copyright from the creator, as well as their legal successors.
To sum up, the provisions of copyright law, oriented towards protecting the author as the weaker party in the relationship, leave the author considerable room for manoeuvre even despite concluding an unfavorable contract, primarily enabling him to obtain additional monetary benefits.
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