Get It In Writing

Correspondent | Monday March 26, 2018 13:49

Question: I have been sent a contract. What do I need to do before signing it?

Firstly, it is important to establish what type of contract is it? Remember, if you as a creator are a Copyright Licensor, COSBOTS  may be able to look at the contract on the creators’ behalf as part of its Copyright Advisory Services.COSBOTS can assist with agreements for its members – an agreement between a member and someone who wishes to use his or her works from a magazine or book, to a festival or public event. Alternatively, if a member has been commissioned to create a new piece of work outside Botswana, COSBOTS may be able to give you advice on the copyright implications of your contract.

Do I Have The Complete Contract?

A contract might refer to a ‘schedule’ or ‘appendix’. The most sensible thing to do is to make sure that as a creator you are provided with all the documents that are referred to in the agreement, often enough schedules contain extra information that may have a material effect on the agreement and its provisions.

 

What Is The Governing Law?

Laws of Botswana will not necessarily govern all agreements, particularly if the 3rd party is based in other jurisdictions. Copyright laws are different from country to country, so there may be different copyright implications relating to the execution of agreement entered into or being contemplated.

Is The Contract Clear About The Grant Of Rights?

A ‘licence’ is when a creator  allows someone to use the work for specific purposes and the respective creator retains the copyright in the work. An ‘assignment’ is the transfer (sale) of rights: in this situation, the creator will not retain the copyright.

Is The Licence Exclusive?

An exclusive licence would be highly restrictive because the artist or creator would be excluded from allowing any other party (including the artist or creator) from making use of the work.

Does The Agreement Refer To Moral Rights?

Moral rights are a bundle of personal rights given to creators or subjects of certain types of work, namely literary, dramatic, musical, film or artistic works. They can be waived (given up), but they cannot be assigned (sold) to a third person.  It is not advisable to waive moral rights. Moral rights are a bundle of personal rights given to creators, including the right to be identified as the creator when work is commercially published or showcased to the public. This right lasts for as long as copyright is in works. They are:

The Paternity Right, or the right of an artist to be identified whenever their work is commercially published, exhibited to the public or included in a broadcast or film.

The Right of Integrity or an artist’s right to object to derogatory treatment of their work.

False Attribution or the right not to be identified as the creator of a work created by someone else.

The Right of Privacy, or the right of someone who has privately commissioned a photograph or film not to have copies of the work exhibited, broadcast or issued to the public.

This right lasts for as long as the resulting photograph or film remains in copyright.Artists are frequently asked to “waive”, or give up, their moral rights in a written document. It is highly inadvisable to waive your moral rights: not only would you no longer obtain the benefits moral rights confer, you would also no longer have the right to receive a by-line and be identified as the author of your own work. Most moral rights lasts for the artist’s lifetime plus a further 50 years.

When Do Moral Rights Apply?

These rights do not necessarily come automatically, however: in order to obtain the benefit of the Paternity Right, the artist of a copyright protected work must “assert” it, by indicating their wish to exercise this right.

This can take many forms, but commonly it includes a statement in a contract to the effect of “[the artist] hereby asserts his/her right to be identified as the author of [name of work]”. This contract should be with the party you seek to make liable.

Does The Contract Mention The Duration And Territory Of The Licence?

You should be careful of terms such as ‘in the universe’ and ‘perpetual’ as these terms have no limitation.

So for example, the contracting party may for now only use a creators work in one territory but a contract saying ‘in the universe’ would also allow the work to be used in other territories as well.

Is The Language Clear?

A contract should have clearly defined terms that do not create any ambiguity. For example, the same term should be used consistently to describe a creator’s work (whether ‘artworks’ or ‘the Works’ for instance), and this term should be defined to state which work exactly is part of the contract.  Remember, you do not have to accept the terms being proposed. If you are unhappy with the contract, you can attempt to negotiate.