The common understanding of „transfer of copyright“ is rather different in Poland and in the US. In the US, transfer of copyright is either an assignment or a license. In Poland, transfer of copyright is rather understood as an assignment. License is a „different animal“.
Main assumptions
According to both Polish and US regulations, assignment of copyright is similar to the sale of a good. The owner sells its rights to a third party and can no longer exercise control over how the third party uses those rights. A license is an agreement where the copyright owner maintains its ownership, but allows a third party to exercise some of those rights.
Transfer of copyright according to the US regulations may be executed on an exclusive or nonexclusive basis (license). The transfer on exclusive basis is not valid unless transfer is done in writing. Transfer on a nonexclusive basis does not require a written agreement. In this regard Polish regulations indicate significant similarities, since assignment of copyright and granting license on an exclusive basis require written form. However, with regard to „written form”, it’s crucial to recognize the differences in understanding this form under Polish and the US law (see in Polish: https://www.prawo-it.pl/2022/06/13/podpis-elektroniczny-forma-pisemna-usa/).
Implied license in USA vs nonexclusive license in Poland
What’s more, the US law recognizes implied license that is created by law in the absence of any „tangible“ evidence of license agreement. The purpose of an implied license is to allow the licensee to use the copyrighted work. The custom and practice are used to determine the scope of the implied license. This legal institution resembles non-exclusive license that can be granted according to the laws of Poland. Such license does not require written form for its validity.
In the light of Polish regulations it may be found peculiar, that US Copyright Act contains permit for the author of a copyrighted work to revoke any copyright license or assignment between thirty-five and fourty years after the grant was made. The purpose for this is to give the creator of the work a second chance to exploit the work in situations where the value of the work may have been significantly enhanced since the original transfer. The ability to terminate a transfer cannot be negotiated away.
Summary
As we see, Polish translation of “przeniesienie” of copyright into “transfer” may be a little bit misleading for people familiar with American copyright laws. In the Polish context, “przeniesienie” should be rather translated into “assignment” than “transfer”. In other aspects, concepts of copyright license and assignment according to Polish and laws of the US indicate many similarities.
