FAQ for Model Agency Agreement
The FAQ, drafted by our South African People explains the purpose and scope of the Model Agency Agreement. We welcome comments, additional questions and assistance with the structure and language of this FAQ so that it will be as useful as possible.
• What is the model agency agreement?
The model agency agreement is a model or blueprint that copyright-holders can use to draw up their own agreements. It sets out a particular way of arranging an agency relationship, recognizing that it is not the only way and may not always be the best way of formalizing such an agreement. The model can’t possibly be a proper substitute for legal advice and we don’t pretend that it is legal advice.
• What does the model agency agreement do?
The model is just a form. It is only when two parties agree, and show their agreement by filling in the blanks, choosing options and indicating their acceptance of the agreement on the form that a legally binding contract will exist. There are other legal issues beyond what we can deal with here or in the agreement that can affect the validity of the contract. One issue is the age of parties (in South Africa if a person is under the age of 21 years then she usually requires the consent of her parents to make a binding agreement). If you are concerned about possible legal issues then seek legal advice.
• I see that the agreement refers to South African law. What if one or both parties are outside South Africa?
The agreement is valid and binding in almost all legal systems. This means that even when an agreement is set up between two non-South African entities, courts in other countries will apply South African law to determine the meaning of the contract. If you are especially concerned about cross border transactions seek legal advice.
• Why should I use the model agency agreement?
The model agency agreement attempts to protect both the content creator/copyright holder and aggregators and distributors. It requires that parties agree on essential terms like the money payable to the content creator/ rights holder for the licensing of the work.
• I am a content creator/copyright holder, how would I benefit from the model agency agreement?
The model agency agreement tries to protect important rights. It gives the agent a license but does not give her the copyright. This means that you don’t give up ultimate control of your work.
It also has a paragraph on what happens if the agent goes out of business. This is one of the biggest dangers facing content creators i.e. that risky new entrepreneurial ventures will fail. If your agent were to go out of business but retain control of your works then you wouldn’t be able to go to another agent or license the works to others yourself.
• I am a content aggregator/ distributor how would I benefit from the model agency agreement?
One of the biggest dangers facing aggregators/distributors is potential legal liability for distributing infringing content. This would happen if the content creator/rights holder includes someone else’s copyrighted work without permission or authorisation by law. In the model agency agreement the content creator/ rights holder assures the agent (aggregators and distributors are agents according to the agreement) that the work does not infringe copyright, or defame anyone or infringe other personality rights. That is probably not enough on its own to completely protect you from liability from infringement but it’s a good start.
• How does this model agreement relate to the Creative Commons license?
The model agency is provided as one way, certainly not the only way and not always the most appropriate way, of using Creative Commons licensed material in profit generating business models. This agreement gives an agent or distributor rights which the Creative Commons license keeps back for the creator or rights holder of a cc-licensed work. For example a musician who licenses her work under a BY_NC license can give the right to use work commercially to an agent who can in turn sub-license its use commercially in an advertisement.
• What is the difference between this model agreement and the Creative Commons license?
The Creative Commons license is a copyright license which allows others to freely use work provided they abide by the terms of the license. It does not require any agreement from people who use the work other than their compliance with their license. This agreement is a model agency agreement which can be used to create a commercial agreement, between specific parties, the parties must show their agreement with the terms of the agreement.
• If I have licensed my work under a non-commercial license can I enter into a commercial contract and can I use this form to do it?
Yes you can enter into a commercial contract and you can use the model agency agreement to do it. First however you need to make a commercial decision that this is the best option for you. If you are satisfied that it’s the best option then you can use the model agency agreement to enter into an agreement with an agent or distributor. If you are dealing directly with someone who wants to use your work for a commercial use you will probably need to modify the agreement.