International Journal of Communications Law & Policy

UCC ARTICLE 2 B AND THE IMPACT ON COPYRIGHT LICENSING - A EUROPEAN PERSPECTIVE

By Thomas Hoeren

Download the Paper in PDF Format: IJCLP Web-Doc 4-2-1999

Abstract

Since the very beginning of the drafting of Article 2 B UCC, its impact on intellectual property law has been disputed. The dispute started when the drafting committee decided to extend the scope of the article from mere software licensing to contracts on every informational good: Article 2B now covers licenses of information and software contracts for existing information and for information to be developed as well as any agreement related to a license or software contract in which a party is to provide support, maintain or modify information. Licenses of trademarks, trade name, trade dress, or of patents and related know-how are not covered unless they are associated with a license or software contract that is otherwise covered by this article (Sect. 104 (2)).

This extension led to the fear that the new regulation will become the super-act on copyright licensing. In the preface of the text, the drafting committee pushed this question aside by mentioning that patent and copyright law do not affect contract law (see also Sect. 105 (a)). This idea of a coexistence of copyright and contract law is puzzling. Both areas are not coexisting in parallel universes, they are intermingled and depend upon each other. Copyright law provides the background for licensing while contract terms are deciding upon the value of an exploitation right or the applicability of a certain copyright regime. While the first relationship is clear the latter-mentioned liaison between copyright and contract law is not self-evident and should be considered in the following.