ble only the rights of economic exploitation are. Even these may be subject to certain exceptions, for example, rights concerning a form of exploitation not known at the time of the assignment may be declared nonassignable. The droit moral is frequently declared to be nonassignable.

(B) The explanation of this tendency should probably be sought in the difference between the Anglo-Saxon philosophy of "copyright" and the continental European philosophy of "droit d'auteur" ("rights of the author"); whereas the former is more attached to the work and is primarily concerned with property rights, the latter is so strongly attached to the personality of the author that a complete severance of the rights in a work from the person of the author is generally not conceivable.

II. PARTIAL ASSIGNMENT 5

(A) With the possible exception of the Philippines, no foreign law has been found according to which assignment would be possible only if it relates to all the rights comprising copyright. In other words, the principle of indivisibility of copyright ownership seems to be unknown abroad.

(B) A considerable number of foreign copyright laws admit partial assignment, either expressly or by implication.

In the countries following the British system, partial assignment is expressly provided for in the law. Thus, for example, in the laws of

2 AUSTRIA: Except by inheritance (Law No. III of 1936, § 23, par. 1) and by devolution upon a co-author (par. 2), "copyright is non-transferable" ("das Urheberrecht [ist] unübertragbar", par. 3). Waiver of the "paternity right" is void (§ 19, par. 2). may be alienated or transferred" (Copyright Law of 1941,

ITALY: "Only the rights of utilization

Art. 107); the moral rights are "inalienable" (Art. 22).

TURKEY: Only "the exercise of property rights may be transferred" (Copyright Law of 1951, Art. 48); "contractual waiver of the [moral] rights shall be void" (Art. 14).

FEDERAL REPUBLIC OF GERMANY: The Referentenentwurf of 1954 provides that "Copyright is transferable in compliance with a disposition mortis causa or on co-heirs in connection with the division of the inheritance. Otherwise it is not transferable" (§ 21). The exposé states "The Draft is based on the principle that copyright, whether in its totality or in its parts (e.g., the right of exploitation), is not transferable [However, the authors may grant rights of use] * • But, the granting of a right of use is not equivalent with the alienation of a part of the copyright but merely with the granting of a license as known in the field of patent law. Alienation of the right would deprive the author in perpetuity of the alienated part of copyright; this would be in opposition to the essence of copyright" (p. 109).

Cf. also COLOMBIA: "Authors or their successors in title may alienate their copyright in whole or in part" (Law No. 86 of 1946; Art. 48). "Authors who transfer the full exercise of their copyright concede only the rights of exploitation and reproduction. They therefore retain an inalienable right of control over the work [in respect to moral rights] (Art. 49);

PORTUGAL: "Assignment of copyright in a work includes all rights other than those inherent in authorship, those purely personal to the author, and those excepted by this Law" (Decree No. 13725 of 1927, Art. 97).

FEDERAL REPUBLIC OF GERMANY: According to the Referentenentwurf, only those rights of use may be transferred (or rather, "granted": eingeräumt), which are "known at the time of the grant" (§ 24).

Cf. a limitation of another kind (a limitation in time) in the YUGOSLAV Copyright Law of 1951: "The copyright in the whole work or its individual parts may be transferred, in whole or in part *** for a period of time not longer than ten years" (§7).

AUSTRIA, COLOMBIA, ITALY, PORTUGAL, TURKEY: see note 1, supra. CANADA: "Independently of the author's copyright, and even after the assignment, either wholly or partially, of the said copyright, the author shall have the right to claim authorship of the work, as well as the right to restrain any distortion, imitation or other modification of the said work which would be prejudicial to his honor or reputation (Copyright Act, R.S., c. 55, § 12, par. 7).

An interesting question, but not examined here, is the question of the limits of divisibility. Generally, it is believed that where copyright is divisible, it is divisible in as many parts as there are different rights, For example, the right of public performance, the right of cinematographic adaptation, the right of graphic reproduction, the right of sound recording, would be different rights capable of separate assignments. In practice, however, the limits are not so clear cut. Are reproduction in book form and as a serial two rights or contractually circumscribed aspects of one right (the right of reproduction)? Is copyright divisible ad infinitum? Where is the point where one ceases to assign a distinct right and merely puts contractual limitation on a right?

The Philippines Copyright Law of 1924 mentions "assignment or conveyance of copyright” (§ 26) and nowhere speaks about partial assignment. Although it does not expressly provide that only assignment of all the rights is possible, its silence on partial assignments (and its general similarity to the United States law) may mean that copyright is regarded as indivisible.

the United Kingdom, Canada, Australia, India, the Union of South Africa, etc., there are detailed rules regulating partial assignment.' Partial assignment is also possible under the older laws of continental Europe, for example under those of Germany, Switzerland and Sweden.8

The same is characteristic of some Latin American laws such as those of Argentina and Mexico.o

Partial assignment is expressly admitted also by Japan and the U.S.S.R.10

(C) In countries where the entire copyright is generally nonassignable but where rights of use are assignable or grantable, differentiation. between various rights of use is characteristic, and one or more rights of use may be assigned or granted without the others. For the purposes of the problem under consideration, this leads in practice to the same result as if copyright were declared to be partially assignable. So, for example, in Austria and Italy."

(D) In some countries and in some cases, copyright is not only divisible but is divided at its inception. Certain rights in the same work vest, from the beginning and by operation of law, in one person, others in another person. This could be called a This could be called a split copyright.12

(E) Except as noted below, it is not apparent that in those countries. recognizing a partial assignment, its effect would be different from that of an exclusive license.

UNITED KINGDOM: "An assignment of copyright may be limited

(a) so as to apply to one or

more, but not all, of the classes of acts which by virtue of this Act the owner of the copyright has the exclusive right to do *** and references in this Act to a partial assignment are references to an assignment so limited" (Copyright Act, 1956, § 36(21).

The AUSTRALIAN Copyright Act, 1912-1935, adopts in this respect the United Kingdom Copyright Act, 1911, which provides "The owner of the copyright in any work may assign the right, either wholly or partially * **" (§ 5(21).

CANADA: "The owner of the copyright in any work may assign the right, either wholly or partially ***" (Copyright Act, R.S., c. 55, § 12(4)).

CEYLON, INDIA, ISRAEL, PAKISTAN, the UNION OF BURMA and the UNION OF SOUTH AFRICA follow, by reference, the United Kingdom Copyright Act, 1911, as quoted under Australia, supra. NEW ZEALAND: "The owner of the copyright may assign the right, either wholly or partially (Copyright Act, 1913, § 8(2)).

Also, IRELAND: "The owner of the copyright in any work may assign the right, either wholly or par. tially **" (Industrial and Commercial Property [Protection) Act, 1927, § 158(21). GERMANY: "Copyright may be transferred to others, with or without limitations

on Literary Copyright, 88131).

**" (Law of 1901 SWITZERLAND: "Copyright shall be capable of transfer ** The transfer of one of the rights comprised in copyright shall not imply the transfer of other partial rights ⚫ (Copyright Law of 1922,

Art. 9).

SWEDEN: "Copyright may be transferred, with or without limitations * * *" (Law No. 381 of 1910, $1521).

ARGENTINA: "The author or his successor in title may alienate or assign (cedar) the work totally or *" (Law No. 11723 of 1933, Art. 51).

partially

MEXICO: "Copyright in respect to a given work shall be the property of the copyright owner apart from those rights which, within the limits of the contract, are necessary to its fulfillment.' (Copyright Law, 1956, Art. 38).

10 JAPAN: "A copyright may be assigned in whole or in part" (Copyright Law of 1899, Art. 2). U.S.S.R.: "A copyright may be alienated in its entirety or in part (Basic Principles of Copyright, 1928, §16).

AUSTRIA: "The author may authorize other persons to use the work by certain or all of the methods of exploitation reserved to the author under §§ 14 to 18 (license to use a work). He may also grant to other persons the exclusive right to do so (right to use a work)" (Law No. 111 of 1936, § 24).

ITALY: The Copyright Law of 1941, after enumerating several rights of "economic utilization" in Articles 12 to 18, provides that "the exclusive rights specified in the preceding Articles are independent of one another" (Art. 19).

12 For example, UNITED KINGDOM:"where a work is made by the author in the course of his employment by the proprietor of a newspaper the said proprietor shall be entitled to the copyright in the work insofar as the copyright relates to publication of the work in any newspaper ***; but in all other respects the author shall be entitled to any copyright (Copyright Act, 1956, § 4, [2]).

III. RECORDATION OF ASSIGNMENTS

(A) The number of countries in which assignments must or may be recorded in a public register is probably less than 20 altogether. (B) The validity of the assignment depends on recordation in Argentina, Chile, Ecuador, Lebanon, Spain, Syria, and Uruguay.13 In Colombia the unregistered assignee cannot enforce his rights.14

An unrecorded assignment is not enforceable against third parties in Brazil, Canada, Japan, Portugal and the Philippines, 15 and, in respect to cinematographic works, in France.16 However, in the laws of Canada and the Philippines it is expressly stated that only third parties without (actual) notice can invoke the lack of recordation.17 Recordation of assignments is optional, but certain special remedies are available only to the registered assignee, in Australia and New Zealand. The special remedies include fines, summary search, seizure, and destruction.

18

Recordation of assignments is optional and serves as prima facie proof of the registered facts in Australia, Mexico and New Zealand. 19 There exists an optional possibility to record assignments also in the

18 ARGENTINA: "The alienation or assignment, whether total or partial ** must be registered in the National Copyright Register; otherwise such alienation or assignment shall not be valid" (Law No. 11723 of 1933, Art. 53).

CHILE: "Transfer [of one or more of the rights specified in the Lawy shall be by way of a public deed entered in the Copyright Register ***" (Law No. 345 of 1925, Art. 9).

ECUADOR: "Every contract in respect to literary and artistic copyright, in order to acquire legal validity, shall be entered in the appropriate register.' (Copyright Law of 1887, Art. 48). LEBANON: "Under penalty of nullity, every assignment shall be made in writing ...the assignee shall send to the Director of the Protection Office, within 15 clear days from the date of its execution, an abstract of the act of assignment." (Decree No. 2385 of 1922, Art. 163). It is possible, however, that the nullity relates only to the written form of the assignment, and that registration thereof is only a prerequisite to suit (cf. Art. 158).

SPAIN: "Every transfer of copyright, irrespective of its importance, must be incorporated in a public deed and registered in the appropriate register; otherwise the transferee shall not be entitled to the benefits of the Law" (Regulations of 1880, Art. 9).

SYRIA: Same as Lebanon, supra.

URUGUAY: "In order to have legal effect, transfers of copyright shall be recorded in the Registry (Law No. 9739 of 1937, Art. 54).

14 COLOMBIA: "Any alienation of a scientific, literary or musical work, whether in whole or in part, shall be embodied in an authenticated deed and entered in the National Copyright Register. If these formalities are not observed, the transferee shall be unable to enforce his right" (Law No. 86 of 1946, Art. 52) 15 BRAZIL: "Assignments, transfers, publication contracts and other acts related to literary, scientific or artistic property, concerning which the interested parties desire to give notice to third parties, shall be inscribed in the margin of the Register" (Decree 4857 of 1939, Art. 309).

CANADA: "Any grant of interest in a copyright, either by assignment or license, may be registered in the Registers of Copyrights (Copyright Act, R.S., c. 55, § 4011). "Any grant of interest in a copyright, either by assignment or license, shall be adjudged void against any subsequent assignee or licensee for valuable consideration without actual notice, unless such prior assignment or license is registered in the manner prescribed by this Act before the registering of the instrument under which such subsequent assignee or licensee claims (§ 40 (31).

JAPAN: "Succession to, or an assignment or pledge of, copyright shall not be effective against third persons without registration thereof." (Law No. 39 of 1899, Art. 15).

PORTUGAL: "The following shall be subject to registration at the competent offices: (1) All deeds of transfer of copyright, whether total or partial (Decree No. 13725 of 1927, Art. 105).

PHILIPPINES: "A copy of every assignment or conveyance of copyright or permission or license to use it *** shall be filed with the Philippines [Patent Office) *** in default of which it shall be void as against any subsequent purchaser or mortgagee or assignee for a valuable consideration, without notice, whose assignment has been duly filed" (Copyright Law, 1924, § 26). 16 FRANCE: "In the event of *** nonrecordation of the acts assignments, etc. ・・・ above referred to, the rights resulting from such acts ** shall not be enforceable against third parties". (Code of the Motion Picture Industry, Art. 33, enacted by Decree No. 56-158 of Jan. 27, 1956).

17 See note 15, supra.

19 AUSTRALIA: "Registration of copyright shall be optional but the special remedies provided for by sections fifteen, sixteen and seventeen of this Act can only be taken advantage of by registered owners.' (Copyright Act, 1912-1935, § 26). "When any person becomes entitled to any registered copyright or other right under this Act by virtue of any assignment or transmission, or to any interest therein by license, he may obtain registration of the assignment, transmission or license in the manner prescribed" (§ 29). NEW ZEALAND: Same texts as under Australia, supra. (Copyright Act 1913, §§ 38 and 41). 19 AUSTRALIA: (Copyright Act, 1912-1935, § 33).

MEXICO: "The [Copyright] Office shall keep a register and enter in separate books thereof: I) all documents *** that in any manner may confer, modify, transfer, encumber or extinguish copyright ***" (Copyright Law, 1956, Art. 112). "Entry in the register shall create a presumption that the facts therein stated are true ***" (Art. 115).

NEW ZEALAND: (Copyright Act, 1913, § 45).

Union of South Africa and Italy.20 In the Union of South Africa, no legal consequences of recordation are expressly provided for. In Italy, recordation probably mainly results in prima facie proof.21

(C) The laws of Australia, Canada, New Zealand, and of the Union of South Africa expressly admit the recordation not only of total or partial assignments but also of licenses. 22 Recordation of licenses, as well as of assignments in toto, is admitted by the Philippines. 23 Recordation of total and partial assignments or licenses may be implicit also in some of the other laws mentioned herein before.

IV. EFFECT OF ASSIGNMENT ON COPYRIGHT NOTICE

(A) Laws may require that a copyright notice be placed on copies of works and that the notice include the name of a person (or legal entity). If such person (or legal entity) is the author or the publisher, irrespective of whether he is also the owner of the copyright, assignments of the copyright do not cause any problems in respect to notice. But if one of the elements of the notice is the name of the owner of the copyright, assignment-i.e., change in the ownership— raises the problem of whether the notice may or must be changed accordingly.

(B) It would seem that there are altogether three foreign countries in which a notice requiring the indication of the name of the owner of the copyright is prescribed: in the Philippines it is a condition of the acquisition of copyright in any published work, in Norway it is a condition of acquisition of copyright in photographic works, whereas in Mexico it is a requirement sanctioned by fine only.24

The Philippines law allows the assignee to substitute his name for the name of the assignor in the notice.25

Such possibility of substitution is not mentioned in the laws of Mexico and Norway.

(C) Provision is made in the Universal Copyright Convention, article III, paragraph 1, for a copyright notice containing the name of the copyright proprietor. There is no indication in the Convention as to whether, when copyright has been assigned, the proprietor named in the notice may or must be the assignee.

assignments [of pro

"UNION OF SOUTH AFRICA: "A register wherein may be registered prietorship in the copyright of works] or assignments [of the sole right to perform a musical or dramatic work]. shall be kept in the copyright office at Pretoria" (The Patents, Designs, Trade Marks, and Copyright Act, 1916, §152). "When any person becomes entitled to any registered copyright or other right under this Chapter by virtue of any assignment or transmission thereof or of any interest therein by license, he may ・・・ obtain registration of the assignment, transmission, or license* *'' (§ 154). ITALY: "** legal instruments executed between living persons, transferring in whole or part rights recognized by this Law** may ⚫ be registered ** (Law No. 633 of 1941, Art. 104). ITALY: Cf. Art. 103, par. 3, of Law No. 633 of 1941.

2 Cf. notes 18, 15, 18 and 20 supra, respectively.

23 Cf. note 15, supra.

#PHILIPPINES: "Copyright

... with the required notice of copyright

may be secured by ** * registration

and by publication

(Copyright Law of 1924, ($11). "The notice of copyright ⚫ shall consist of the word "copyright" accompanied by the name of the copyright proprietor and the year in which the copyright was registered" ($16). NORWAY: "The exclusive right shall exist only if each copy of the photograph *** bears the word "Eneret" and the name of the proprietor [of the exclusive right] *** (Law on Rights in Photographs,

1909, (82).

MEXICO: "Works protected by this Law, if published, must bear the expression 'Derechos reservados', or its abbreviation 'D.R.' owner and the indication of the year of first publication *** However, indication, in this or any other form, of the reservation of the right shall not be a necessary condition of protection but the publisher who omits it will be subject to the sanctions established by this Law (a fine from 500 to 10.000 pesos),"

25 PHILIPPINES: "When an assignment of the copyright secured for a specific work has been registered, the assignee may substitute his name for that of the assignor in the statutory notice of copyright prescribed by this Act" (Copyright Law, 1924, §28).

(D) Where the copyright proprietor is required to be named in the notice, the recognition of a partial assignment may raise an additional question as to whose name is to appear in the notice. For example, where an author assigns book publishing rights to a publisher, retaining all other rights in himself, and if the publisher is recognized as the assignee and owner of the book publishing rights, is it appropriate for the publisher to be named as copyright owner in the notice appearing in copies of the book? The laws of the three countries mentioned under (B) above recognizing partial assignment and providing for a notice containing the name of the copyright proprietor do not appear to provide an express answer to this question; 26 nor does the Universal Copyright Convention.

V. CAPACITY TO SUE

(A) In the British system, according to which copyright is partially assignable, a partial assignee may sue in his own name as far as violations of the rights assigned to him are concerned. See particularly the laws of the United Kingdom, Australia, Canada, New Zealand, and the Union of South Africa.27

The situation in Germany and France is basically similar."

26 As to the question of whether copyright is partially assignable in the Philippines, see note 6, supra. 27 UNITED KINGDOM: According to the Copyright Act, 1956, "infringements of copyright shall be actionable at the suit of the owner of the copyright" (§17(1)). Since the property of copyright is divisible by way of partial assignment (cf. §36), the partial assignee is the owner of part of the copyright. Thus, reading sections 17 and 36 together, infringement of the assigned part of the copyright appears to be actionable at the suit of the owner of the assigned part of the copyright.

CANADA: "The author or other owner of any copyright or any person or persons deriving any right, title or interest by assignment or grant in writing from any author or other owner as aforesaid may each individ ially for himself, in his own name as party to a suit, action, or proceeding, protect and enforce such rights as he may hold, and to the extent of his right, title, and interest is entitled to the remedies provided by this Act" ($20 (51).

AUSTRALIA and the UNION OF SOUTH AFRICA incorporate in this respect, by reference, the provisions of the United Kingdom Copyright Act, 1911, which provides that "Where copyright in any work has been infringed, the owner of the copyright shall*** be entitled to all such remedies by way of injunction or interdict, damages, accounts, and otherwise, as are or may be conferred by law for the infringement of a right" (§6[1]) and that "where, under any partial assignment of copyright, the assignee becomes entitled to any right comprised in copyright, the assignee as respects the rights so assigned and the assignor as respects the rights not assigned, shall be treated for the purposes of this Act, as the owner of the copyright, and the provisions of this Act shall have effect accordingly" ($5(3)). Reading together these two provisions, it appears that a partial assignee has the right to sue in his own name.

NEW ZEALAND: Sections 9(1) and 8(3) of the Copyright Act, 1913, being identical with Section 6(1) and 5(3) of the United Kingdom Copyright Act, 1911, the same considerations apply as under Australia and the Union of South Africa, supra.

28 GERMANY: There are no express provisions in the Copyright Laws. Their meaning is interpreted by Ulmer as follows: "Claims arising from violations of copyright belong to the author or his legal successor. If the author or his heir disposed of certain rights of use, a distinction must be made: (i) if the rights derived are simple permissions, then the acquirer is entitled to reproduce the work but he has no rights of prohibition; (ii) if exclusive rights were granted, then the grantee may proceed even against third parties in the defense of his rights *** Besides him, however, the author may also proceed against violations of rights, provided, naturally, that he (the author] still has some protectable interest". Translated from ULMER, Urheber und Verlagsrecht, 295 (1951).

FRANCE: There are no express provisions in the laws relating to copyright. problem as follows:

Plaisant comments on the

"Generally, transfers of property (cessions de propriété), typified by sale, are distinguished from transfers of exercise or concessions (cessions de jouissance ou concessions), typified by rent. This distinction is made for corporeal property. Most of the time it is also made in the case of incorporeal property: business assets, trade marks, patents; it is of special importance in the last case since, according to French law, the licensee has no right to sue for infringement (contrefaçon).

"It is curious that this distinction has never been made in the field of copyright law. Any concession (concession) of a right, however limited it may be in time or space, is considered as a transfer of property (cession de propriété). This solution is probably a remnant of the old practice according to which only total transfers were made***

"In actual fact this state of the law does not seem to cause any practical difficulties ・・・

"In law, however, it would appear that the said distinction ought to be taken into consideration, because it conforms with realities and the logic of things. It cannot be admitted reasonably that the owner of an inn authorized by a subscription contract concluded with SACEM [French society for the perception of the so called small rights to receive publicly a broadcast emission has a title in copyright." Translated from Robert Plaisant, Propriété Litteraire et Artistique, Juris Classeur Civil Annexes, Fascicule 9, No. 54 (1954).