Most important points

• Rights of use are authorizations granted by the copyright holder to use a copyrighted work (e.g. text, image, software). The author can grant others simple (non-exclusive) or exclusive rights of use.

• A simple right of use entitles the holder to use the work, but does not preclude the author from allowing others to use the work. An exclusive right of use, on the other hand, gives the owner the sole right of use within the agreed scope – even the author himself may then no longer use the work in the same way, unless otherwise agreed.

• Rights of use can be restricted in terms of content, territory and time (Section 31 (1) UrhG). For example, a right can only be granted for a specific region or industry and for a period of X years.

• Clear regulations on usage rights are important for start-ups, for example if they use creative content, software or brands from third parties or if freelancers create copyrightable works for them. Without an explicit agreement, the rights generally remain with the author.

• In the employment relationship, the principle applies that work results must be handed over to the employer for use (“employee inventions” are regulated separately), but clear contractual provisions on rights to developments are also recommended here in order to avoid disputes.

Types of rights of use

Copyright law recognizes a number of exploitation rights (§ 15 ff. UrhG), e.g. reproduction right, distribution right, making available to the public, editing right, etc. A right of use can relate to one or more of these exploitation rights.

Key distinction:

• Simple right of use: The licensee may use the work within the agreed scope, but the author may also grant the same right to others. For example, if a company buys a simple image license, it may use the photo, but the photographer can also grant the image to others.

• Exclusive right of use: The licensee alone is entitled to use the work to a certain extent. The author himself may no longer exercise this type of use (unless he reserves a specific personal right by contract) and may not grant any further licenses to third parties. This has a higher value for the licensee and is usually more expensive.

In addition, there is sublicensing: The holder of an exclusive right may, unless excluded, grant sublicenses to third parties.

Scope and limitation of rights

If rights of use are granted, this must be clarified:

• Content: What types of use are covered? (e.g. only online use, also print, editing yes/no?). What about adaptations/ further developments? It is standard that the exclusive rights holder must also agree to adaptations.

• Geographical: Worldwide, EU-wide, German-speaking countries or just Germany? Restrictions can be important if different licensees are sought for different regions.

• Temporal: Limited (e.g. right of use applies for 5 years) or unlimited (until expiry of the term of protection, which generally ends 70 years after the author’s death).

• Further conditions: Often also agreement on remuneration (one-off, ongoing license fees, sales-dependent), naming of the author (moral right: right to be named), and whether the right is transferable (in principle, the grant is further transferable, § 34 UrhG, unless otherwise agreed).

Without an express agreement, in case of doubt only a simple right of use applies to the extent necessary for the purpose of the contract (purpose transfer rule, Section 31 (5) UrhG). Therefore, a clear agreement should be made for extensive rights.

Practical example of a startup: rights to code and content

• Software development by service providers: If a startup has software programmed by an agency or freelancer, the developers acquire copyrights to the code. In order for the startup to be able to market and further develop the product independently, a comprehensive right of use must be granted contractually, ideally exclusive, unlimited in time and space, including editing rights. Otherwise, the developer could possibly use the software elsewhere or the startup would be restricted in its use.

• Content from freelancers (designs, texts): Startups should also agree in writing for commissioned work (logo design, website texts, videos) that all necessary usage rights to the results are transferred to the startup so that it can use the content in a legally secure manner (e.g. for marketing, website, print).

• Licensing from third parties: If a startup uses stock photos, open source software or libraries, for example, it must pay close attention to the respective license conditions. Open source licenses can contain conditions such as the transfer of the source code (copyleft effect). Commercial licenses can limit the number of users or make exclusive rights expensive. Here it is important to adapt the license to your own business model.

Avoid infringements

Using works without the corresponding rights leads to copyright infringements and can result in warnings. Therefore:

• Always check whether a right of use exists for each use of third-party content.

• If you are unsure, it is better to obtain written consent.

• All agreements with creatives should clearly regulate the rights issue.

For start-ups in the digital sector, intangible assets are often the core asset – clean rights management ensures that the company can scale its business model without any legal stumbling blocks.