5b. HOW … can other people use a work? – Contractual licenses
If authors do not wish to give up their copyrights by assigning them to other natural persons, they can sign a contract (licence agreement) that simply gives others the right to use (licences) their work. The users (licensees) do not acquire any exclusive rights – they just obtain the consent of the author to use the latter’s rights in a specific way. Licensees do not assume the legal position of an author (in contrast to the assignment of copyrights). In particular, the acquired right to use the work may not be assigned to third parties, unless a sub-licence is permitted. Authors may also grant additional licences to their work to other persons, unless a licensee has been given an exclusive licence.
Types of licences:
- Exclusive licence and sub-licence
Authors and users can agree that the licence gives the user an exclusive right to use the work, and that neither the author nor any other person may use the work (exclusive licence). Authors and users can agree in a contract that the user may in turn give rights to use the work to additional persons (sub-licences).
- Statutory licence
A statutory licence is based on provisions of the Copyright Act that grant the licensee the right to use the work. It is also referred to as a limiting provision of copyright law and is a very important part of copyright law. Users of a work can use a protected work under a statutory licence without needing the consent of the author or the owner of rights. The best-known example of a statutory licence is the limiting provision on private use in the personal sphere or within a circle of persons closely connected to each other (Art. 19 para. 1 (a) CopA) and the use of the work for educational purposes (Art. 19 para. 1 (b) CopA). Statutory licences are discussed in detail in the chapter ‘How … may others use a work?‘
- Compulsory licence
A compulsory licence refers to a legal obligation on authors or owners of rights to grant users a corresponding licence. In this case, authors or owners of rights must conclude a licence agreement with users. However, Swiss law only makes provision for one compulsory licence (Art. 23 CopA).