The importance of a qualified electronic signature in the context of copyright transfer in the IT industry
The conclusion of contracts using electronic signatures is a common practice in the IT industry. Parties residing in different parts of the world are able to sign an agreement in a short time. The solutions that technology offers are ecological and convenient. Nevertheless, when using the options supplied by providers of platforms for signing an electronic document, the legal requirements for conclusion of such contracts must be borne in mind.
The legislation regulating the issue of electronic signatures includes for instance European Regulation No 910/2014 on electronic identification and trust services for electronic transactions in the internal market (eIDAS) which covers:
- a simple electronic signature;
- an advanced electronic signature, and
- a qualified electronic signature.
The distinction made above is important inasmuch as eIDAS associates legal effects equivalent to a handwritten signature only with the qualified electronic signature, which is an advanced electronic signature, supplied by a certified provider.
A qualified electronic signature is individually assigned to the person who uses it, and confirms the integrity of the content contained in the document. Verification of the authenticity of the signature is ensured by a certificate, guaranteeing a high degree of security for the concluded contracts.
The fulfilment of the conditions concerning the form of signed agreement, as mentioned before, is particularly important when the subject of the contract is the transfer of copyright. For such a contract to be effective, the Polish Act on Copyright and Related Rights requires the written form (which implies a handwritten signature). This means that for the transfer of those rights it is not sufficient to affix a simple electronic signature or even an advanced electronic signature to the contract. It is essential that the parties use a qualified signature provided by qualified trust service providers within the meaning of eIDAS. Otherwise, the contract will have not have legal effect of transfer of copyright.
In this context, the recognition of a qualified signature in one EU Member State implies its acceptance in all other EU countries (which also applies to third countries when trust services from that country are recognized in the EU under a separate agreement).