Research Handbooks in Intellectual Property series
Edited by Estelle Derclaye
Chapter 13: The Issue of Exceptions: Reshaping the Keys to the Gates in the Territory of Literary, Musical and Artistic Creation
12 Dealing with rights in copyright-protected works: assignments and licences Andreas Rahmatian* 1. Introduction: use of copyright Copyright, in line with all other intellectual property rights, is often referred to as a ‘negative right’, that is, a right to prevent others from doing certain things.1 However, this is an overstatement. In the same way as a plot of land, for example, is not merely owned to keep out trespassers, but also used for, say, crops or buildings, copyright is a positive right also and cannot be reduced to the infringement component only. Copyright in its conception as a property right, at least in the UK,2 arguably shares the conceptual features of any property right, which means that the extent and content of the copyright are expressed by an external and an internal aspect.3 The external aspect denotes the relationship of the holder of the property right to third parties and is the right to exclude, in the form of a trespass/infringement action. The internal aspect denotes the content or substance of the property right and is the right to use: it is what in relation to property rights over tangible objects would be referred to as incidents of ownership, for example, a right to possession and use, a right to management, to capital and income, or a right to alienate and burden.4 These incidents of ownership are determined by (among other things) the physical characteristics of the object of the property (if any).5 Since in the case of...
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