Assignment or Licence? Regulating Authors’ Economic Rights in Public Contracts

Abstract

This article analyses the allocation of authors’ economic rights in public contracts under EU and Estonian law, with particular focus on the choice between assignment and licensing of copyright in public procurement. EU public procurement law does not harmonise the regulation of intellectual property rights, leaving contracting authorities wide discretion and resulting in divergent contractual practices. Drawing on doctrinal analysis and a case study of Estonian public contracts concluded between 2022 and 2024, including design contests and innovation partnerships, the article examines how economic rights are regulated in practice.

The analysis shows a strong preference for assignment of economic rights, frequently combined with contractual clauses characteristic of licensing. This hybrid approach enables contracting authorities to secure extensive control while shifting legal and financial risks onto tenderers and authors, particularly in relation to remuneration, liability, and third-party infringement. The article argues that such practices are often inconsistent with the legal logic of copyright assignment. It concludes that licensing, especially exclusive licensing, can in many procurement contexts provide a more proportionate and legally coherent alternative, ensuring functional control, fair remuneration, and balanced risk allocation.