Problems Arising from Nonregistered Rights
Without registration, it is not easy to identify the rights holder of, in particular, a copyright work. It is dangerous to rely on information contained in a copyright notice in a published work or on a web page, since title to the copyright may have passed on more than once since the notice was originally published. Often a work is considered to be an “orphan work” if the author or copyright owner cannot be identified or traced at all. Some businesses are prepared to take the risk of using an orphan work without permission on the assumption that, if no author or copyright owner can be found, that use will remain undetected.
For practical reasons, it is not possible to provide a registration system for confidential information and technical know-how. A licensee of the use of such information may therefore unwittingly be paying for the right to use information that is already available in the public domain and which, with effort, the licensee could have found and used without payment. The party possessing such information will be reluctant to warrant its secret nature since it too has no means of verifying whether this is so.
As for trade dress (the visual appearance of a product), trade names, and logos, internet search engines have now facilitated identification of their existence and the extent and geographical scope of their use. Instances of accidental use of a trade name or trade dress that closely resembles that of a competitor have therefore fallen sharply. The same applies to unregistered designs of products whose shape is distinctive.
Nonregistered Rights As Property
Although details vary between different countries, copyright, database rights, and designs are generally protected by statute that specifically accords them the status of property that can be assigned, licensed, mortgaged, or left to someone in a will or on death. Rights in respect of confidential information, know-how, trade dress, get-up and the like are generally said to be in personam. This means that those rights can only be enforced against others when they are infringed in certain circumstances, but they do not constitute property as such. Commercial practice in most countries, however, is to treat the latter category of rights as though they were property when assigning them (whether together with the business from which they originated or separately).
Because of its variety and longevity, copyright in a single work may be simultaneously the subject of many separate property transactions. For example, the right to publish a work of fiction in book form may be assigned to A for 20 years, the right to serialize it in a newspaper may be exclusively licensed to B for six months, and the right to reproduce it in cartoon form for the full copyright term may be nonexclusively licensed to D. An option to purchase the movie rights, exercisable for 10 years, may be bought by E, and the right to produce a computer game based on it may be pledged to F as collateral for a loan which enables the copyright owner to pay for its translation into French so that it may be published in that language by G for 50 years. Since assigned rights may themselves be disposed of by the assignee, and many licenses permit the grant of sublicenses, a party that is not aware of all these transactions may struggle to establish precisely who controls which rights to a given work.
In principle, the owner of copyright, database right, or design right is the party that initially creates it. Rules which vary from country to country regulate issues relating to ownership where the creator is employed by another or is commissioned by another as an independent contractor.
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