Every creator, whether a literary work or a computer program, wishing to share their work must decide which agreement to enter into. On the other hand, individuals wishing to use the work of others face a similar dilemma. The choice boils down to two options: a copyright transfer agreement or a license agreement. The goal of both is to legally obtain the right to use the work created by the creator. The regulations governing both contracts are contained in the Act of 4 February 1994 on Copyright and Related Rights (hereinafter referred to as the Act). What is the difference between these two agreements?
Let's begin with the copyright transfer agreement. First and foremost, it is permanent in nature. Therefore, upon conclusion of the agreement, the copyright to the computer program (including the source and object code) is transferred from the creator to the purchaser. As a result of the parties concluding a copyright transfer agreement, the purchaser has the exclusive right to dispose of the code, while the creator loses their rights. Therefore, the author cannot transfer the same rights – in the same field of exploitation – to two different entities. A copyright transfer agreement is a one-time agreement. It's worth noting that this agreement must be concluded in writing, under penalty of nullity.
The second option is to conclude a license agreement, i.e., an agreement for the use of a computer program. This agreement does not permanently transfer rights to the program, but rather temporarily allows for its use. It can be concluded for a fixed term, up to five years, or for an indefinite period. In the latter case, unless the contractual provisions provide otherwise, the creator may terminate the agreement one year in advance, at the end of the calendar year. Therefore, the parties may include provisions in the contract that otherwise regulate termination, and the contractual provisions will then bind the parties. In light of the above, license agreements lack the attribute of permanence – there is always a risk of termination or expiration. Furthermore, the licensor remains the owner of the rights to the computer program.
The Act distinguishes between two types of licenses: non-exclusive and exclusive. By concluding the latter, the licensee obtains exclusive rights to use the computer program. Therefore, it is not possible to grant the license to other parties for the same field of exploitation. Similar to a copyright transfer agreement, an exclusive license agreement must be in writing under penalty of nullity. Unlike an exclusive license, a non-exclusive license can be granted to multiple parties for a given field of exploitation.
In summary, it's always worth concluding a copyright transfer agreement when you want the legal relationship to be permanent and to completely exclude the possibility of termination or expiration. Creators aren't always willing to transfer their copyrights, so if the above issue isn't crucial for you, it's worth considering whether a license agreement might be a sufficient solution. Stay tuned for the next post next week.
