Written by Sarah Zivoin.
Assignment vs. Licensing Copyright
If you have a copyright in your work, that right exists separate and apart from the physical work itself. In other words, if you were to give your manuscript or your published work in book form to someone, that act of giving the work in a physical form does not transfer your copyright interest in it. To do so, you would need to either “assign” copyright or exclusively “license” it to that person – if by an exclusive licence, you would retain ownership but not control. Canada’s Copyright Act states that an assignment or licence granting a copyright interest in your work, either in whole or in part (e.g., the right to publish in book form), generally needs to be in writing in order for it to be valid. Further, that written assignment or exclusive licence must be either signed by you as the owner of copyright or by someone authorized to sign on your behalf. A non-exclusive licence may be oral or implied but, for certainty, should be in writing.
The difference between assignment and licensing can be illustrated by an example of someone looking for a home. The person could choose to purchase a house and acquire all the rights and obligations as related to house ownership or could lease a house for a certain period of time to be returned to the owner once the lease term expires. If you were to assign all of your copyright to someone, that transaction is analogous to the above example of purchasing a house. An assignment of all of your copyright in a work transfers your copyright interest to another person completely so that you no longer have any present or future ownership interest in it (other than a possible contingent interest of your estate to revert copyright 25 years after your death). That person has the right then to enforce the copyright against anyone who may infringe it, including you. By contrast, since copyright is a bundle of rights, a licence is similar to the lease example above in that the person to whom you granted the licence has your permission for a specified period of time to use your work in certain ways which might otherwise constitute an infringement of your rights. Such grant of a licence does not change your ownership in the copyright of the work – unlike an assignment of specified rights of copyright, which would transfer ownership of part of your copyright. Granting an exclusive licence precludes you from using the rights you have licensed, but if you grant a non-exclusive licence you retain the right to use any right you have licensed and may also license others to use it.
It should be noted that while you can give away your work in a physical form, provide a written assignment granting either ownership of all or certain rights in your copyright, or grant an exclusive or non-exclusive licence for all or certain rights in your copyright to someone else, you still retain moral rights in your work unless you “waive” them. Moral rights include the right to receive credit for creating the work as well as some rights with respect to its integrity. The only way for you to give up your moral rights is to waive them. Such waiver may be restricted to specified moral rights and may only be in favour of, or benefit, certain persons. It need not be in writing though that’s best for certainty – it may be provided orally or occasionally even impliedly, given the nature of your work. It is not usually necessary, and often not desirable, to waive your moral rights simply because you sell or license your copyright.
This article is informational and not intended as a substitute for legal advice.
