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If you want to use a protected work or protected service, it is important to be able to identify who owns the copyright in a work: the rights holders. Alongside rights holders, there are also collective management organisations that are mandated by the rights holders to manage their rights.
Users who want to reproduce, communicate to the public or distribute a work, can obtain the necessary permission and negotiate a price with these persons or with these collective management organisations.
Copyright in a literary or artistic work is granted to the author of such work.
However, these rights will sometimes be fully or partially transferred to third parties, such as a publisher, a producer, the author's employer or to a client.
The author: the original rights holder
The original copyright owner is the natural person who created the work. They hold the copyright from the moment they create the work.
In the case of anonymous and pseudonymous works, the publisher is considered to be the author vis-à-vis third parties, unless there is no doubt as to the author's true identity.
In the case of an audiovisual work, the exploitation rights are presumed to have been transferred to the producer.
The transfer of copyright
The transfer of copyright to an intermediary
Even though the author is the primary copyright owner, copyright may be transferred to other people or to companies. Primary copyright owners do not necessarily have to economically exploit their work themselves. They can entrust the exploitation to one or several assignees, such as a producer or a publisher. These assignees can only start to exploit the work after the authors have transferred their full or partial copyright to them for remuneration.
In that case, authors no longer own the transferred rights. For example, if the author of a novel exclusively transferred his reproduction and distribution rights to a publisher, so that the publisher can have copies printed for sale, the author will no longer have the right to give other people permission to publish and distribute his work. Only the publisher can still grant such a permission.
It should be noted that the transfer of the original author’s copyright (i.e. the natural person who created the work) must meet a number of strict conditions in order to be valid. Furthermore, the author always retains his moral right, since it is linked to his persona.
The transfer of copyright to the employer
If the author created a work within the framework of his employment contract, the economic rights in the work may be transferred to his employer. Special rules apply in the case of an employment contract.
If the economic rights were transferred to the employer and depending on the extent of the transferred rights, the employer will be entitled to grant permission. The employee will not be able to use the works without the employer's permission.
The transfer of copyright to the client who commissioned the work
If the author created a work within the framework of a commission, the economic rights in the work may be transferred to the client who commissioned the work. Special rules apply in the case of a commission contract.
If the economic rights are transferred to the client who commissioned the work and depending on the extent of the transferred rights, the client will be entitled to grant permission. The author will not be able to use the works without the client's permission.
Some authors are members of an authors’ organisation, also called collective management organisations, which manages their rights on their behalf. Any request for exploitation of the work must therefore be addressed to that organisation. In addition, certain forms of exploitation require the collective management organisation to intervene.
If it is impossible to identify or locate the copyright holders
It may not be possible to identify the copyright owners of a work or to locate them in order to ask their permission to use the work. In such cases, they are referred to as orphan works.
According to the current legislation, the inability to contact the copyright holder does not waive the obligation to obtain their permission prior to the exploitation of the work. Nevertheless, the European Directive 2012/28/EU was approved on 25 October 2012, which permitted certain uses of orphan works.
This directive was transposed into Belgian law by the law of 20 July 2015 transposing Directive 2012/28/EU of the European Parliament and of the Council of 25 October 2012 on certain permitted uses of orphan works.
Orphan works, i.e. works for which the rights holder cannot be identified or located, may sometimes be used. More specifically by:
- public libraries,
- educational institutions and museums,
- repositories of cinematographic or sound heritage,
- and public service broadcasters.
They are allowed to use orphan works without requesting the rights holder’s permission. The purposes for which these works are intended, must be stated in legislation.
These organisations must perform a diligent search (French version – Dutch version) for the rights holder. If they cannot find the rights holder, they must register the work as an orphan work in a database that is managed by the European Union Intellectual Property Office.
When the rights holder of an orphan work manifest himself, he may terminate the status of orphan work and he will therefore be entitled to remuneration for the use of his orphan work by the afore-mentioned institutions and bodies.
Please note, if you do not fall into one of the categories listed above and you wish to use the work of an author whom you do not know or cannot find, you should exercise caution and follow these recommendations:
- a search for the rights holder must be carried out. It must at least include a search for the persons who are assigned to the work as:
- or producers.
A collective management organisation in the sector of the work must be contacted, as well as with the national library in charge of legal deposits.
The user must prove that they have used every possible method to find the rights holder.
- If, after this search,
- it is still impossible to identify or locate the copyright owner,
- and if the user cannot benefit from a legal exception,
then the user is not allowed to exploit the work without prior permission. If he still does so, the user is liable to civil and criminal sanctions, and he may to be ordered to pay damages.