One dictionary definition¹ for copyright is “the exclusive and assignable legal right, given to the originator for a fixed number of years, to print, publish, perform, film, or record literary, artistic, or musicalmaterial.”

Copyright is an intellectual property right that vests automatically. The question arises whether the right has international enforcement due to the nature of the right itself. Copyright subsists the moment it meets the two basic criteria that qualifies the work to be protected by copyright, i.e., originality and reduction to material form. This begs the question, is it then an international right? The mere creation vests an international right despite per-country national legislation. Or does it not? International instruments such as TRIPS and the Paris Convention address the authorship² and enforcement of copyright by its members. In terms of the Trade Related Aspects of Intellectual Property (TRIPS) Agreement under the General Agreement on Tariffs and Trade (GATT), signatories to the GATT are required to implement national laws of a basic minimum protection and establish procedures for the effective enforcement of the copyright of national and foreign rightsholders.

The Berne Convention³ deals with the protection of copyright works and the rights of their authors and sets the minimum standards of protection that its members should grant copyright creators. Three basic principles are defined:

1. Works of an author that is a national of a contracting member state must be given the same protection in each of the other contracting member states as the latter grants to the works of its own.
2. Protection must not be conditional upon compliance with any formality—it must thus be automatic. And,
3. Protection is independent of the existence of protection in the country of origin of the work.

The Berne Convention sets the minimum duration that copyright will apply in various types of work and defines, for the duration of copyright, the exclusive rights that require the permission of the copyright owner. These are:

• The right to authorise translations of the work.
• The exclusive right to reproduce the work, though some provisions are made under national laws that typically allow limited private and educational use without infringement.
• The right to authorise public performance or broadcast, and the communication of broadcasts and public performances.
• The right to authorise arrangements or other types of adaptation to the work.
• Recitation of the work, (or of a translation of the work).
• The exclusive right to adapt or alter the work.

The Berne Convention also provides for the protection of an author’s moral rights, i.e.,

• The right to claim authorship
• The right to object to any treatment of the work that would be “prejudicial” to his honour or reputation.

Each member country may permit certain uses of works in its legislation, such as a statutory licence for reproduction and communication of works by educational institutions. The Berne Convention limits the impact of such exceptions to the copyright owner’s (author’s) exclusive rights by providing that the normal exploitation of the work and legitimate interests of the author must not be affected.

In addition to the Berne Convention, but less significant⁴ and effectively no longer relevant,⁵ is the Universal Copyright Convention (UCC). The UCC is an international instrument that was drawn up in 1952 under the auspices of UNESCO. The UCC was concluded in an attempt to incorporate a greater number of countries into the international copyright community.

The UCC contains the following generally recognized principles of international protection of copyright:

1. Requirement for the adequate and effective protection of copyright at the national level.
2. The national treatment of foreign authors.
3. Replacement of the obligatory formalities as a condition of copyright by the copyright notice.
4. The minimum terms of protection.
5. The exclusive right of translation.
6. The notion of publication of a work.
7. Non-retroactivity.
8. The system of compulsory licences in favour of developing countries.

Although copyright protection is obtained automatically without the need for registration or other formalities, most countries nonetheless have a system in place to allow for the voluntary registration of works.

Despite the international conventions, there is no “international copyright” that will automatically protect a work throughout the world. Protection against unauthorized use in a particular country depends on the national laws of that country.

The vesting of the right, in the opinion of the author, is an “international right,” by the true nature of the right. The enforcement thereof, however, remains a jurisdictional matter, which tips the scale to the unbalanced side.

If a right vests automatically when the work is created, the default position in terms of copyright law is that the creator owns the work created—the author-owner concept.

An author-owner is free to assign copyright to anyone. Outsourcing work to freelance consultants such as software development, website development, or creation of logos, designs, and drawings, are thus owned by the person who authored them. A written contract can change this basic rule. As an example, many publishers require assignment of copyright as a condition of publication. In some jurisdictions legislation prescribes certain categories for commissioning of a work (work-for-hire), where such commissioning of the work is in writing and signed by the creator or creators before the work begins.

In an employment relationship, depending on the national law, the author-owner rule generally does not apply. Work created by an employee in the course and scope of the employee’s employment belongs to the employer.

Works for hire, on the other hand, require a contractual arrangement between the creator and hirer to transfer copyright ownership.

There are two ways by which a copyright owner can transfer some rights, through permission to perform certain restricted acts, or all rights to the copyright: either through a license or by assignment.

A copyright assignment is when the copyright holder transfers ownership of the copyright to another person or organisation. A license is the permission to perform certain restricted acts with regards to the copyright work and the copyright owner retains ownership and certain rights to the work. A license is often preferred over an assignment when the copyright holder wishes to maintain and exercise some ownership control over the rights and how the licensee uses the copyright holder’s rights.

A valid assignment of copyright must be in writing and signed by, or on behalf of, the copyright owner/assignor. The subject of the assignment must be clear as to what copyright is being assigned in which work(s).

A copyright license, i.e., the permission to use a copyright work, does not have to be in writing unless it is an exclusive license. A license can be oral or arise by implication when considering all of the facts and circumstances surrounding the transaction between the copyright owner and the purported licensee. For example, when a website is made available on the world wide web, an implied licence is granted to internet users to copy that website for the purpose of viewing it on a web browser. However, the exact scope of implied and unwritten licences may be unclear.

The vesting of copyright may be international; however, copyright protection remains territorial in nature. A work will only enjoy copyright protection if it meets the legal requirements of the copyright law of the country where protection is sought.

The scope of the right and the assignability thereof is also a matter of territorial nature.

Of specific importance is the creation of a work by more than one author from more than one employer, where the authors and the employers are of different nationality and based in different countries, and the work is commissioned on the understanding that the product qualifies as a work-for-hire.

Under the work-for-hire doctrine, the employer or the company that has commissioned the work is considered the author and automatic copyright owner of the work.

Not all jurisdictions acknowledge the assignability of copyright works. In a scenario where a copyright work is completed as a “work-for-hire,” the jurisdiction of the creator of the work becomes relevant.

For example, German copyright law does not recognise the work-made-for-hire doctrine. Even when an employee creates a work in the course of employment, the employer will not become the owner of the copyright; likewise, an independent contractor will remain the owner of the copyright work created. An author/ creator can however grant licences to other persons authorising the use of the copyright work.

The right of a licensee is more restrictive than an owner right. Where the subject of the copyright work is a design for a product or equipment that is needed by the commissioner of the work for commercial exploitation or use, the impossibility of ownership could have severe economic impact. It is thus important to verify on works-for-hire whether ownership in the work is transferable, or whether the only possible right may be a license, thus depriving the “contractual” owner of copyright enforcement. In this analysis, consideration is given to established contractual devices to achieve the same, or a very similar, commercial outcome of copyright “assignment” in the relevant work.

A comparative analysis of key countries’ assignment possibilities and requirements for assignment recordal in official registries is tabled below. ■
Available at Social Science Research Network (SSRN):
https://ssrn.com/abstract=4179617.

1. The Oxford Dictionary of English.
2. Although the Berne Convention generally refers to the “author” as the relevant recipient of the economic rights of copyright, it is recognised that member states may have different national approaches to copyright authorship and ownership.
3. Berne Convention for the Protection of Literary and Artistic Works, Sept. 9, 1886, as revised at Paris on July 24, 1971, and amended in 1979.—https://www.wipo.int/treaties/en/text.jsp?file_id=283698 (last visited 23 April 2020).
4. Since almost all countries are either members or aspiring members of the World Trade Organization (WTO), and thus comply with the Agreement on Trade-Related Aspects of Intellectual Property Rights Agreement (TRIPS), the UCC has lost significance.
5. Rosati, E., 2022. [Guest post] Universal Copyright Convention— RIP. [online] The IPKat. Available at:  [Accessed 31 March 2022].