Copyright clauses are now a standard element of many types of agreements. Whether the contract concerns a graphic design, architectural plans or a film script, provisions regulating copyright are crucial for protecting your interests. This is why they deserve particular attention.

Who can transfer copyright?

If you intend to acquire economic copyright or enter into a license agreement, the first step should always be to verify whether the other party is in fact entitled to enter into the agreement. This is particularly important when the agreement is concluded not with the author but with, for instance, a company. In such cases, it is advisable to confirm (and also provide for the relevant representations in the agreement) that the company has validly acquired the relevant economic copyright from the author and is therefore entitled to transfer or effectively license those rights to you.

AI and copyright –risks that should be addressed in the agreement

Does AI-generated content constitute a work?

Given the growing use of artificial intelligence, it is worth expressly regulating whether and to what extent the author may use AI tools, particularly in projects where the work has not yet been created at the time of signing the agreement. One of the risks associated with AI is that the final output may not qualify as a “work” protected by copyright. Under copyright law, a work must be the result of human creative activity. While the mere use of AI does not automatically exclude copyright protection, the more limited the human contribution, the greater the risk that no protected work will arise. For example, where human involvement is reduced to merely entering a prompt, the resulting content may not constitute a work. In such cases, no copyright will be created.

Preventing copyright infringement when using AI tools

The use of AI-generated content may lead to infringement of third parties’ copyright in pre-existing works. Where the output generated by an AI tool is identical or substantially similar to works used to train that tool, there is a risk of copyright infringement. For this reason, where the parties permit the use of AI tools, it is advisable to impose an obligation to use tools that minimise the risk of infringement. In order to identify such tools, it is worth carrying out – so far as reasonably possible – a review of the AI tools intended to be used, in particular with regard to the provider’s terms and conditions, the data sources used to train the AI, and any safeguards applied by the tool, such as output-filtering mechanisms.

From the perspective of the other party to the agreement, it is also important to verify whether the counterparty using AI has adopted internal policies governing the use of AI and whether its employees have received appropriate training in this area.

Copyright transfer or a license? The implications of this choice

The most important issue the parties must address is whether the agreement should provide for the transfer of economic copyright (and, if so, to what extent), or whether it should grant permission to use the work without transferring ownership of rights. There are two different types of agreements:

  • agreement transferring economic copyright
  • Economic copyright is transferred to another party. As this involves the rightholder disposing of their economic rights, it is a far-reaching decision and should therefore be taken consciously and with a full understanding of its legal consequences.
  • license agreement
  • The copyright remains with the rightholder, while the licensee is granted permission to use the work within the scope specified in the agreement.

Freedom of contract and the limitations under copyright law

As a rule, the parties enjoy considerable freedom in shaping the terms of copyright agreements. However, Copyright law lays down a number of important rules that must be taken into account for such agreements to be valid and effective.

In particular, the author is generally regarded as the weaker party to the agreement. For this reason, the Act on Copyright and Related Rights provides specific mechanisms designed to protect authors against potential abuse of a stronger contractual position by the other party.

Forms of the agreement and effective transfer of copyright – legal requirements

If the parties intend to transfer economic copyright under an agreement, this intention must be expressly stated in the contract. A transfer of ownership of a copy of a work (for example, when a painting is commissioned) does not automatically result in the transfer of economic copyright. For this reason, copyright issues must always be regulated separately and explicitly.

Where an agreement provides for the transfer of economic copyright, it must be concluded in written form to be valid. The electronic form is also acceptable, provided that the agreement is signed using a qualified electronic signature. It is important to note that not every electronic signature meets this requirement – for example, a signature applied via the Polish e-government platform ePUAP does not constitute a qualified electronic signature.

Exclusive versus non-exclusive license – key differences

If the parties decide to grant a license instead of transferring copyright, they should bear in mind that copyright law distinguishes between two types of license. The choice between them depends on the objectives of the parties.

  • exclusive license – the licensee is granted the exclusive right to use the work within the agreed field(s) of exploitation. The rightholder may not authorise any other person to use the work in that scope. This provides the licensee with assurance that no third parties will be permitted to use the work;
  • non-exclusive license – a non-exclusive license does not restrict the rightholder from granting licenses to other entities within the same field(s) of exploitation. As a result, the licensee must expect that the author may allow others to use the work in parallel.

It is essential to expressly state in the agreement that a license is exclusive. If this is not clearly stipulated, the license will be deemed non-exclusive by default.

Options regarding the form of the license

An exclusive license must be granted in writing to be valid. A non-exclusive license may be granted in any form, whether it is in writing, including written, documentary or oral form, or even by implication. As a result, an exchange of emails, text messages or communications via other messaging tools, as well as arrangements made over the telephone, may be sufficient to establish a non-exclusive license.

At the same time, agreements concluded in “weaker” form – such as oral agreements – may give rise to evidentiary difficulties. In the event of a dispute, it may be problematic to prove not only that the agreement was concluded, but also its nature and scope. For this reason, it is generally advisable for license agreements to be concluded at least in documentary form, for example through a clear exchange of emails. This helps ensure that the parties’ mutual rights and obligations are clearly defined and can be effectively enforced in the course of their business relationship.

Fields of exploitation under a copyright agreement

Every agreement must specify the fields of exploitation for which economic copyright is transferred or a license is granted. Simply stating that “economic copyright is transferred” is not sufficient. In simple terms, fields of exploitation are technically and commercially distinct ways of using a work. By way of example:

  1. copying a text constitutes reproduction;
  2. selling T-shirts bearing a printed design constitutes introduction to trade;
  3. making a work available on a website constitutes making the work publicly available in such a manner that anyone could access it at a place and time selected by that person.

For the sake of clarity and legal certainty, it is advisable to use the terminology set out in the Act on Copyright and Related Rights when defining the fields of exploitation.

At the same time, it is not good practice to list all possible fields of exploitation in every agreement. Only those fields that are genuinely required from the user’s perspective should be included. In addition, the broader the scope of fields of exploitation granted under the agreement, the higher the remuneration should be.

Derivative rights under copyright law – when the author’s consent is needed

Copyright law also recognises so-called derivative copyright. The use of a derivative work – for example, a film based on a book – requires the author’s consent. This means that, where the user anticipates the need to exploit derivative works, it is important to address derivative copyright already at the contract stage. This issue must be regulated separately in the agreement.

Transfer of copyright and the timing of the transfer

Another key issue in agreements providing for the transfer of economic copyright is determining the moment at which the transfer takes effect. From the author’s perspective, a protective solution is to make the transfer of rights conditional upon payment of the remuneration in full. From the buyer’s perspective, it may instead be important for the transfer to take place upon delivery of the work. If the parties do not regulate this issue expressly, the transfer occurs at the moment specified by law, which is the moment of acceptance of the work.

Where the agreement concerns the creation of a work, rather than a pre-existing work, it is particularly important to specify matters such as the delivery date and the procedure for acceptance of the work.

It may also be important for the author that the party acquiring the economic copyright (or entering into an exclusive license agreement) begins using the work within a specified time. For example, where a book is intended to be adapted into a computer game and placed on the market, the parties may agree on a deadline by which exploitation must commence. If that deadline is not met, the author may be entitled to rescind the agreement after setting an additional grace period.

Territorial scope of the agreement – where the work may be used

Agreements transferring economic copyright, as well as license agreements, should specify the geographical area covered by the agreement, for example, worldwide exploitation, a defined group of countries, or a single territory.

The differences between licenses for a limited and indefinite term

Although the duration of a license agreement is generally a matter of the parties’ choice, certain legal consequences and limitations should be taken into account.

A license agreement:

  • may be granted for an indefinite period – it will remain effective until terminated. The parties may agree on the applicable notice period. If no notice period is specified, the author is entitled to terminate the license with one year’s notice, effective at the end of the calendar year. This means, for example, that notice served on 5 December 2025 will take effect on 31 December 2026.
  • may also be granted for a definite period. However, under the Act on Copyright and Related Rights, a license granted for a fixed term exceeding five years is deemed to become a license for an indefinite period upon the expiry of the initial five years.

Moral rights – issues to be addressed in the agreement

Regardless of whether the agreement provides for the transfer of economic copyright or merely grants a licence, moral rights always remain with the author. Even a broad transfer of economic rights does not affect moral rights, which are intended to preserve the personal bond between the author and the work.

Moral rights include, in particular, the right to authorship (including the right to remain anonymous), the right to the integrity of the content and form of the work and to its proper use, the right to decide on the first public release of the work, and the right to supervise the manner in which the work is used.

It is advisable to set forth the rules governing moral rights, for example by specifying how the author is to be credited and what types of modifications to the work are permitted. The author may also authorise the other party to exercise certain moral rights on their behalf or undertake not to exercise them.

Fee models for the use of a work

One of the key issues in copyright agreements is remuneration. Both the transfer of economic copyright and the grant of a license may be made either for consideration or free of charge.

As a general rule, the author is entitled to remuneration unless the agreement expressly provides otherwise. While the parties enjoy considerable freedom in determining the fee, copyright law requires that remuneration be fair and correspond to the scope of the rights granted, the nature and extent of the use of the work, and the benefits derived from such use. In practice, remuneration most commonly takes one of the following forms:

  • a fixed lump-sum fee, payable irrespective of the revenue generated from the use of the work;
  • a pro-rata fee, usually calculated as a percentage of the revenue generated from exploiting the work;
  • a hybrid model, combining elements of both approaches.

As a rule, the author is entitled to separate remuneration for each field of exploitation in which the work is used. Although it is permissible to agree on a single amount covering the entire use of the work, that amount must adequately reflect all fields of exploitation covered by the agreement.

Revenue reporting obligations

A lump-sum remuneration model does not generally give rise to significant practical concerns. However, it should be borne in mind that, under the current regulations, the author is entitled to receive regular and up-to-date information from the counterparty regarding the revenue generated from the use of the work. For this reason, it is advisable to specify in the agreement the type of information to be provided, the form in which it is to be delivered, and the applicable deadlines.

How to structure a pro-rata fee correctly

When a pro-rata remuneration model is introduced in an agreement, the applicable rate must be specified, i.e. the percentage of the revenue from the use of the work payable to the entitled party. In addition, the agreement should address in particular:

  • a precise definition of the calculation base to which the rate will apply – for example, the user’s revenue from the sale of copies of the work, net of VAT (any other agreed exclusions should be expressly listed);
  • the frequency of remuneration payments, such as monthly or quarterly;
  • the rules governing revenue reporting and audit mechanisms, enabling the entitled party to verify the accuracy of the settlements.

Bestseller clause – when can the author seek higher remuneration?

Even where a copyright agreement has been concluded in a valid and effective manner and the remuneration has been properly determined, the author may, in certain circumstances, seek an increase of the agreed fee before a court under the so-called bestseller clause.

This mechanism applies where the author’s remuneration is disproportionately low in relation to the proceeds generated by the buyer or licensee. This may occur, for example, where a work achieves unexpected commercial success, while the author received only a low, one-off fee.

The bestseller clause operates exclusively in favour of the author. If the author has received substantial remuneration but the work proves unprofitable for the buyer or licensee, the buyer or licensee is not entitled to seek a reduction of the agreed fee on this basis.

In order for the remuneration to be increased under the bestseller clause, the author must initiate court proceedings and demonstrate that the statutory conditions for application of the bestseller clause are met. In practice, this may prove challenging.

Protect your copyright – seek specialist advice.

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