Necessity to License Copyrighted Works: Perspective of Different Creative Economies
Abstract: Under the current international framework of copyright, rights are automatically granted to all creators of eligible works regardless of their will. Elimination of formalities, formerly a necessary condition for grant of copyright, deprived creators of choice as to whether obtain rights with accompanying obligation for others or not. Copyright legislation has primarily been established for satisfaction of interest of creators pursuing monetary gain, who are often interested in control of works. However, contrary to simplistic formula ‘interests of right holders vs. interests of general public’, many creators do not need exclusive rights, legal tools enabling exclusion of others from use of works, as their motivations for creativity often involve possibilities to share fruits of their labour. The law mostly does not differentiate between interests of creators with different motivations. Works of all creators cannot be used without their prior authorisation for the whole duration of copyright, excluding cases falling under limitations and exceptions to copyright. If right holders would like their works to be used they have to give authorisations, as unauthorised use is generally illegal. Legal instruments normally do not specify form of authorisations, however, in order for users to have some kind of proof of acquisition of necessary authorisations, they have to be in written form, typically in form of licenses. This creates necessity to license. Potential user have to ask for licenses and right holders if they consent, regardless of whether they create with intent of monetary profit or with other non-monetary motivations, have to license use of their works, as almost the only internationally accepted way to eliminate doubt in legality of use of copyrighted works, and thus avoid allegation in ‘piracy’. Provisions of copyright law are generally not sensitive to different interests of creators and, consecutively, right holders. Right holders realise their interests through licenses by establishing legal setting suitable for their needs. In this thesis, all creators are viewed as participants of three different creative economies: commercial, sharing and hybrid – classification not new, but relatively recently gaining support. Participants of different economies have different interests, nonetheless, they all have to license. The thesis explores issues related to compliance with the necessity to license copyrighted works by participants of commercial, sharing and hybrid economies.
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