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Signature formalities (survey results)

Presented at Open Source Legal Workshop, Amsterdam, April 4 2013
by

Andres Guadamuz

on 26 April 2013

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Transcript of Signature formalities (survey results)

Costa Rica Signature formalities (survey results) Introduction We conducted survey in English and Spanish inviting several legal experts from around the world.
Detailed questions about signature formalities in copyright assignments.
We also opened up the questionnaire using social media, but there were no takers.
15 respondents from 14 jurisdictions. Sample questions Can ownership in copyright be transferred (assigned)?
Can an exclusive copyright license be granted?
If copyright can be assigned then are any formalities required for assignment?
Is a technical signature accepted for purposes of copyright formalities?
Is digital data accepted for purposes of copyright formalities?
Where in the law are the consequences of failure to comply with the formalities set out? Chile Copyright ownership can be assigned, and exclusive licenses can be granted.
There are writing formalities required for assignment, the contract must be notarized.
Assignment can be concluded through electronic signature.
Assignments that do not meet the required formalities can be declared void at the request of a party.
Voided assignments almost never have any effects to third parties, but there may be exceptions with regards to future promises Colombia Assignment of copyright is possible in writing, and this document has to be registered in the National Copyright Registry.
Assignment can be performed via electronic signatures.
The assignment is to be declared completely void in the absence of a formal requirement.
While the act is completely void, bona fide third parties may be able to try to enforce acquired rights. Copyright assignment is possible if it is “recorded in a public or private document, before two witnesses“, so no registration is needed.
Technical signatures can be used for assignment.
An assignment contract is invalid in the absence of formalities, and while it is completely void, it has to be declared as such by a court of law.
The voided act has no effect whatsoever, even against third parties. Germany Copyright cannot be assigned, but it can be granted by exclusive license.
Formalities are not required for licensing that requires sub-licensing.
Technical signatures are accepted for the purpose of copyright formalities.
Acts that require formalities are completely void in the absence of constitutive formalities. UK (England) “An assignment of copyright is not effective unless it is in writing signed by or on behalf of the assignor.”
Writing is defined to include electronic means of displaying information, and electronic signatures are allowed to sign assignment.
The effect of lack of formal requirements is that the contract has no contractual effect, and it is to be treated as a declaration of intent.
This means that it may have effects to bona fide third parties. USA Copyright assignment must be signed and in writing, as well as exclusive licenses that give the right to grant sub-licenses.
Non-exclusive licenses do not require any formalities.
Technical signatures are accepted in order to fulfill signature formalities.
Acts lacking formalities are completely void, although third parties may be able to acquire some rights. South Africa Copyright ownership can be assigned, and exclusive licenses can be granted.
Both require to be signed and in writing.
Technical signatures are allowed to fulfill copyright formalities.
An absence of formal requirements renders the assignment completely void, but bona fide third parties may in principle have acquired rights, and can raise estoppel. Guatemala Copyright cannot be assigned, but it can be granted by exclusive license.
It is not clear if sub-licensing or exclusive licenses require formalities, but technical signatures are accepted to fulfill formalities. Hong Kong Copyright ownership can be assigned, and exclusive licenses can be granted.
The assignment must be signed and in writing.
Technical signatures are accepted for the purpose of copyright formalities.
Failure to comply with formalities is difficult to prove, but still technically valid.
A proven absence of a formality will have the effect of voiding that particular act, but it will still have effects for those with equitable interest in the transaction. Japan Copyright ownership can be assigned, and there are no formalities required for assignment.
Similarly, exclusive licenses can be granted with no formalities Netherlands Copyright assignment can be transferred and exclusive licenses granted, assignment requires formalities, while granting does not.
The formality for assignment is a deed, which is a written and signed document.
Technical signatures are allowed, but these are not defined.
The effect of lack of formality is that the contract is void at instance of a party. Italy Copyright can be assigned and licensed exclusively.
There are formalities required for both. The transfer or exclusive license needs to be in writing, but this requirement is probative and not constitutive.
There appears to be no signature requirement, but technical signatures are accepted for copyright purposes.
The failure to comply with formal requirements is difficult to prove, so the act will still be technical y valid. Portugal The law distinguishes between partial and total transfer, both requiring formalities.
A partial transfer requires a document in writing, notarized signature, and registration.
A total transfer requires a public deed and registration.
Technical signatures are not accepted for the purpose of copyright formalities.
The absence of a formal requirement makes the act completely void. Taiwan Copyright ownership can be assigned, and exclusive licenses can be granted.
There are no formalities required for either. Concluding Most jurisdictions allow copyright assignment and exclusive licenses.
The most common requirements are signature and writing.
Technical signatures can be used.
Lack of formalities voids contract.
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