Exclusive rights in the provision of SMM services

Maxim Maleykin

SMM services most likely involve creative work, therefore, as a result of the provision, objects of copyright arise. That is, the result received by the customer has a special status, and the customer must ensure that he has the right to use these objects. To do this, you must agree with the author on the transfer of exclusive rights. You can read about what it is and about the methods of lawful use of the results of SMM services in our article.

Contents:

What results of intellectual activity arise in the provision of SMM services?

In the course of the implementation of SMM services, copyright objects are likely to arise. Objects of copyright may include articles and reviews, photo and video materials. The regulation of copyright for video content is more complex because video is a complex work that consists of several elements. You can read about copyright on video in our article «Copyright when creating a video». For the rest, you can designate some general rules for objects that arise in the course of the provision of SMM services. The most important thing is not to neglect these norms, otherwise the entire result from SMM support may turn out to be illegal and lead to losses.

Who owns the rights to works in SMM - the customer or the performer?

As a general rule, the copyright for objects belongs to the author, i.e., the person who created them. Among all copyrights, special attention should be paid to the exclusive right. Its owner has the right to determine the ways of using the work. For example, in the case of a photograph that can be used for advertising on a social network, the photographer will be the exclusive owner. However, there are exceptions from this procedure established by the Civil Code, when the customer and the contractor agree otherwise.

A special place is occupied by the service work, i.e., those objects of copyright that were created as a result of the exercise of the labor function. For example, if there is an employee on the staff who is engaged in SMM support. In this case, the exclusive right will automatically belong to the employer. A different procedure can be prescribed in an employment or civil contract. At the same time, it is worth remembering that the provision of SMM services should be part of the employee's labor functions and the employer is responsible for proving this.

Transfer of rights to works in the provision of SMM services

If the right belongs to the performer, then the right can be transferred to the customer by concluding an agreement on the alienation of the exclusive right. In this case, the performer completely waives his exclusive rights, while non-property copyright cannot be transferred. Consequently, such a contract cannot contain any restrictions.

At the same time, if the author does not want to transfer the exclusive right, he can provide it with certain conditions, for example, in terms of the period, purposes and amount of use, etc.

The contract you enter into may have a different name. For example, an agreement for the provision of SMM services, in which, along with other conditions, you can include provisions on the fate of the exclusive right.

Regardless of which contract of these two, you conclude, it is imperative to prescribe a cost condition. In this case, you can indicate the price of all objects at once (А40-141009 / 2012). If the contract is mixed, then the cost of the entire contract can be foreseen (А40-196239 / 2016). Thus, the price of the objects will be included in this total cost. If your agreement does not contain an indication of the price, then in general it will be recognized by the court as not concluded.

Very often in practice, author's order agreements are concluded. Under such an agreement, the author undertakes to create works by order. This situation will be relevant for you if you enter into an agreement directly with a person who will provide you with SMM services. You can include in such a contract a condition on the transfer or grant of rights. However, the question arises as to what will happen with exclusive rights in the absence of any conditions. In this case, if the agreement does not stipulate the preservation of the rights of the author, the court may recognize the complete transfer of exclusive rights to the customer. Consequently, the rules on the contract on the alienation of exclusive rights will apply. On the other hand, in some cases, the court does not indicate a specific form, but notes: the customer, regardless of the existence of conditions, has the right to use the result of the contract in accordance with the goals specified in the contract.

Is it allowed to reuse materials in the provision of SMM services?

Reusability of materials depends on who owns the exclusive right to them. It is the copyright holder who has the right to determine this. Therefore, if you are the owner of the exclusive right, you can reuse the materials without any restrictions. If you have entered into a licensing agreement with the author, then it is better to immediately provide in this agreement with the possibility or prohibition to reuse the materials. For the author to be interested in this, it is possible to envisage a method of payments in the form of royalties, when the remuneration to the author will depend on the number of uses and the effectiveness of the advertisement. An indicator of this can be the number of users who followed the links to the customer's pages or website.

The process of transferring rights to the results of intellectual activity

Instructions for the transfer of rights to works in the provision of SMM services

In order to obtain the exclusive right to a work resulting from the provision of SMM services, you should go through the following steps.

Step 1. Determine your legal status and qualify the contract. You need to analyze whether the relationship between you has already been settled in some way, for example, by an employment contract. It is also worth checking if the contract does not contain elements of the author's order. Then the right passes to the customer. In the absence of any contracts, the exclusive right belongs to the performer.

Step 2. Draw up an act of acceptance and transfer. In this act, it is necessary to describe all the results of intellectual activity and the methods of their transfer. The act may contain conditions for the right to disclosure, amendment and anonymous publication.

Step 3. Payment of remuneration to the author. Such remuneration may be included in the cost of services under the contract.

Thus, one cannot ignore the exclusive rights that arise for the SMM service provider. Depending on what kind of contract you enter into (licensing or alienation of rights), you receive an exclusive right in full or with restrictions. If you already have an employment contract, then the exclusive right belongs automatically to the employer. The main thing that the customer needs to do is not to ignore this issue. When concluding any agreement, regardless of its name and qualifications, you can include conditions on the copyright holder.