Prawo Zamówień Publicznych

no. 1/2023

Copyright of a design work in a design contest procedure - considerations from the perspective of public procurement law and copyright law

Beata Giesen
Doktor habilitowany nauk prawnych, profesor Uniwersytetu Łódzkiego
Abstract

The need to regulate the copyright of a design work may arise several times, at various stages of the design contest. At the initial stage, the organiser should ensure that it has the right to use the copyrights in the design contest entries to the extent necessary to settle the design contest. The mere fact of submitting an entry may be deemed tantamount to granting a non-exclusive licence to the organiser, provided that at least the fields of use are specified in the design contest regulations.

It is also necessary to conclude a contract that ensures the organiser can use the copyright concerning the winning work. If a subsequent work is to be created on the basis of this work, the organiser of the design contest should also have the right to distribute and use the dependent work. From a copyright perspective, these may be two separate works.

The agreement imposing the obligation to transfer the author´s economic rights may take place either when the individual participants enter the design contest or after it ends. The latter solution seems to be preferable, as it avoids a number of problems.

The agreement to transfer the author´s economic rights should at least specify the work in question and the specific fields of use. In addition, the content must set out an obligation on the author to transfer the copyright to the organiser of the design contest, along with an obligation on the organiser to carry out reciprocal performances, i.e. the prize established in the design contest. The organiser’s obligation should be subject to a condition - the winning of the work in the design contest. The participant of the design contest undertakes to transfer the copyrights to the competition work not as gratuitous donation (causa donandi) to the organiser, but in order to have the right to participate in the design contest and possibly to receive the designated prize for winning it. In any case, it is a pecuniary benefit to the organiser, made in exchange for the chance to win.

In addition, when formulating the contract, it is also worth taking into account the organiser’s right to consent to the disposition and use of the study.

In principle, the acquisition of author’s economic rights does not entitle the organiser to infringe the author’s moral rights.

In the proceedings of the design contest, the issue of the author’s moral rights comes to light in relation to the need to ensure the anonymity of competition works. The organiser of the design contest should also determine the details of the release of these works and take care of any entitlement to infringe the integrity of the work.

Keywords
copyright of a design contest work; the agreement to transfer author´s economic rights; moral rights of the author