Copyright waiver: is it possible and what are the consequences?

Authors often have the question of whether it is possible to simply relinquish copyright in their work. This question may seem simple, but the legal answer is very ambiguous. On the one hand, copyright automatically arises from the moment a work is created and belongs to the author. On the other hand, there are certain mechanisms that allow the author to dispose of his creation in such a way as to make it as accessible to others as possible.

In this article we will examine the nature of copyright, its components (personal non-property and property rights) and analyse whether it is possible to waive copyright in Ukraine at all. We will also find out what legal consequences of copyright relinquishment may occur and what alternative ways exist for authors who wish to provide free access to their works.

Section 1: The nature of copyright and the principle of its inalienability

In order to understand whether copyright can be waived, it is first necessary to delve into its nature. Copyright, unlike many other types of property, has a unique dual nature, combining personal and property aspects. This duality is key to answering the question of waiver.

1.1 The author’s moral rights: what they are and why they are inalienable (right to name, right to inviolability of the work)

The author’s personal non-property rights (also known as moral rights) are an integral part of copyright that are inextricably linked to the personality of the creator. They have no direct economic content, but protect the author’s connection to his creation, his reputation and creative freedom. Such rights include:

• Right to Name: This is the right to request to be named (real, pseudonymous or anonymous) in any use of a work. It guarantees the recognition of authorship.
• Right to inviolability of the work: This is the right to oppose any distortion, mutilation or other alteration of the work that may harm the honour and reputation of the author.
• Right to make the work public: The right to decide whether and when the work will be made available to the public for the first time.
• Right to withdraw a work: The right to withdraw a previously publicised work with compensation to users.

The key feature of these rights is their inalienability. This means that they:

• Cannot be transferred to others (even by contract or inheritance). They remain with the author for life.
• They cannot be waived by the author. That is, the author cannot legally renounce, for example, his right to his name or his right to protect the work from misrepresentation. Any such waiver in a contract would be legally null and void.
• Valid indefinitely and protected even after the death of the author (through heirs who protect the integrity of the work).

For example, if a composer has written a song, he will always be its author and will have the right to have his name listed. He cannot sign a document disclaiming authorship of that song. That right belongs to him as an individual. This is the answer to the question whether copyright can be waived in terms of its personal non-property aspects – no, it cannot.

1.2 The author’s property rights: disposability but not expressly waivable

In contrast to personal non-property rights, the author’s property rights have an economic content. They include the right to use the work, the exclusive right to authorise or prohibit its use by others, and the right to remuneration. These rights are alienable, which means that they can be disposed of.

Disposition of property rights can take place in two main ways:

• Alienation (purchase and sale): The complete transfer of ownership of a work to another person. The acquirer becomes the new owner of the property rights.
• Licensing: Granting permission to use a work under certain conditions (term, territory, method of use) without transferring the ownership right itself.

It is important to understand that the transfer of property rights by contract (sale or licence) is not a waiver of copyright in the broad sense. It is a form of disposal of his right. The author does not relinquish ownership of the right, but realises it by transferring it to another person, or by granting permission to use it. Just as the sale of a house is not a relinquishment of ownership of houses in general, but an act of realising ownership of a particular house. Copyright, as a legal category, continues to exist, it is just that its property aspects now belong to another person.

1.3 Legal interpretation of copyright relinquishment under Ukrainian law

Under current Ukrainian law (in particular, the Law of Ukraine on Copyright and Related Rights), a direct, unconditional waiver of copyright is not provided for and is legally impossible.

This means that:

• Any statements by the author that he or she waives copyright in his or her work without making them in a proper legal manner (e.g., through a contract of alienation of property rights) will be null and void. That is, if the author simply writes on social media I waive copyright to this photograph, it will not automatically result in the loss of those rights.
• Personal non-property rights, as already noted, cannot be waived in principle.
• Property rights may be disposed of (transferred, licensed), but this is an act of exercising the right, not a waiver of it. If the author does not dispose of them, they remain with him.

Thus, if the author wants his work to be freely used by others, he needs to use the mechanisms provided for by law (e.g. alienation of property rights, granting licences, in particular open licences), rather than simply declaring refusal. Otherwise, the author will remain a rights holder and any use of his work without authorisation may be regarded as an infringement of his rights.

Section 2: What is understood by waiver in practice and its legal alternatives

Having considered the theoretical foundations of copyright, it becomes obvious that a direct waiver is impossible in Ukrainian law. However, in practice, authors often seek to achieve the effect of waiver – that is, to make their work as accessible as possible for use by others. For this purpose, there are legal mechanisms which, although not a waiver in the literal sense, allow the author to dispose of his rights in accordance with his intentions.

2.1 Alienation of property rights: complete transfer of rights to another person under a sale contract

One of the most radical ways of disposing of property rights is their alienation, carried out under a contract of sale. This is not a waiver of copyright, but, on the contrary, is an act of its realisation – transfer of copyright property rights to another person.

At the conclusion of such a contract:

• The owner of property rights changes: The author ceases to be the owner of those economic rights that were alienated. The acquirer (buyer) becomes the new full-fledged right holder and can independently decide how to use the work, grant licences, sell the rights further, etc.
• Rights do not disappear: The copyright in the work does not cease to exist; it is simply transferred to another person.
• The author loses economic control: Usually, after alienation, the author loses the right to receive remuneration from further use of the work, unless otherwise specified in the contract (e.g., royalties from further sales).

For example, a software developer may sell his software code to a large development company. This means that the company becomes the owner of the property rights to this code and can modify, license, sell it without any additional permissions from the original author. This is the closest to abandonment, as the author completely loses control over the economic use of the work.

For more information on this mechanism, see our article “Transfer of Copyright: Sale and Licence Agreement“.

2.2 Licensing: granting permission to use a work under certain conditions, but not a waiver of rights

Another common tool for the disposal of property rights is licensing. As we have already discussed, a licence agreement is an agreement whereby the right holder grants another person permission to use a work in a certain way, within certain limits and under certain conditions.

In licensing:

• The ownership of the work remains with the licensor (author/rights holder). The licensee receives only the right of use, not full ownership of the rights.
• Author retains control: The Licensor may restrict use by term, territory, method, etc.
• Not a waiver: It is not a relinquishment of rights, but a flexible way of using them to benefit or distribute the work according to certain rules.

For example, an illustrator may grant a licence to a publisher to use his illustration for the cover of a book. The illustrator remains the owner of the rights to the illustration and the publisher receives only the right to use it for the cover, usually for a fixed term and territory.

2.3 Transferring a work into the public domain: whether this can be done during the author’s lifetime through special licences (e.g. Creative Commons Zero – CC0)

The public domain is the state when a work is no longer protected by copyright and can be freely used by anyone without authorisation or remuneration. Usually, a work enters the public domain after the end of the statutory term of copyright (in Ukraine – 70 years after the death of the author).

However, the author may consciously seek to transfer his work into the public domain or allow it to be used as freely as possible during his lifetime. Special open licences exist for this purpose , in particular Creative Commons Zero (CC0).

• CC0: This licence allows authors to waive all possible copyrights (mostly proprietary) permitted by law and place the work in the public domain worldwide. It is the closest legal instrument to an actual copyright waiver, allowing users to copy, modify, distribute and perform the work, even for commercial purposes, without requesting permission or paying a fee.
• It is important to note that even with CC0, certain inalienable non-proprietary rights of the author (such as the right to name or integrity) may remain in some jurisdictions. Nevertheless, CC0 is the most effective tool for those who wish to make it as easy as possible for others to use their work.

For example, a scientist can publish his research under a CC0 licence so that it becomes freely available for further development and dissemination of knowledge without restriction.

2.4 Publishing a work without attribution (anonymously) and its implications for rights

Sometimes authors publish their works anonymously, without giving their name or pseudonym. Some may consider this to be a disclaimer of authorship. However, it is not a waiver of copyright as such.

• Realisation of a non-property right: Publishing a work anonymously is the realisation of one of the author’s personal non-property rights: the right to a name, which provides for the possibility of using the work anonymously.
• Preservation of property rights: Even if the author does not disclose his name, he is still the owner of the property rights to the work. If someone else begins to misuse such an anonymous work (e.g., commercially without permission), the author has the right to reveal his or her identity and protect his or her rights by collecting a fee or demanding that the infringement cease.

That is, anonymity is the author’s choice regarding attribution, not an abdication of his property or other non-property rights. The author simply chooses not to reveal his or her identity publicly, but legally continues to be the copyright holder.

Section 3: Legal Consequences of Attempted Copyright Relinquishment

Having established that outright copyright relinquishment is not possible, it is important to understand the legal consequences of copyright relinquishment if the author does attempt to do so informally, or misinterprets the legal mechanisms. Such actions may lead to legal uncertainty and undesirable consequences for both the author and potential users of the work.

3.1 For non-property rights: they remain with the author for life, and any waiver of them is legally null and void

One of the most important principles of copyright law in Ukraine is that the author’s personal non-property rights (right to name, right to inviolability of the work, right to publicisation, etc.) are inalienable and non-transferable. This means that they cannot be sold, gifted, or relinquished.

• Legal nullity: Any statement, clause in a contract or other act that purports to completely waive these rights is legally null and void. That is, it has no legal effect and creates no legal consequences.
• The rights remain with the author: The author always remains the bearer of these rights. Even if he publicly declares I renounce my authorship of this song, this does not deprive him of the right to demand that his name be used in its performance or to oppose its distortion.
• Protection after death: The right to protect a work from misrepresentation, in particular, continues after the death of the author and can be exercised by his heirs or authorised persons.

So, if the author of a song publishes it on the internet with the caption No copyright – use as you wish, he or she still retains the right to have his or her name mentioned, and can demand that use cease if his or her work is, for example, changed into an offensive parody that damages his or her reputation. This is one of the key consequences of copyright relinquishment, or rather its impossibility.

3.2 For property rights: if there is no legally formalised contract of alienation or licensing, the rights continue to belong to the author

Unlike non-property rights, the author’s property rights may be transferred or licensed. However, if the author has not duly formalised such a transfer, i.e. by means of a written contract of alienation ( sale and purchase) or a licenceagreement, the rights continue to belong to the author :

• The rights continue to belong to the author: Informal statements such as I waive commercial rights to this work or this work is freely available without legalisation do not usually result in the author losing his property rights.
• Any use without permission is an infringement: A user who relies on such an informal waiver and uses the work without permission risks becoming a copyright infringer. The author, upon discovering such use, has every right to demand termination, damages, or payment of royalties for the use.

For example, an artist posts his painting on a website with a note Use for any purpose, I waive rights. A travel company takes this painting and places it on billboards for commercial advertising. Since no alienation or licence (even a free licence through the appropriate legal instrument) has been issued, the artist can go to court and claim compensation from the company for the misuse of his work.

3.3 Risks and legal uncertainties associated with informal declarations of abandonment

Attempts to informally waive copyright create more problems than they solve. They lead to significant legal uncertainty and multiple risks:

• For the author:
  • Loss of potential benefit: If the author really wanted to grant free use but did not formalise it properly, he or she may lose the opportunity to control the use or potentially monetise the work in the future.
  • Uncontrolled use: The work may be used in an undesirable context, and the author may not be able to counteract this effectively, as his refusal to do so would create legal confusion.
  • Risk of litigation: If the author or his heirs change their minds and decide to defend the rights, it will lead to complex litigation due to the lack of clear terms.
• For the user:
  • Risk of infringement: A user who relies on an informal disclaimer may be held liable for copyright infringement because there is no legal basis for use.
  • Uncertainty of future use: The lack of clear terms does not allow the user to be sure whether he or she can modify the work, use it commercially, or resell it further.
  • Loss of reputation and financial loss: Litigation can cause significant financial and reputational damage.

This is why it is important to avoid informal statements and always use clear, legally enforceable tools to dispose of copyright.

3.4 What happens to copyright after the end of its statutory term (passing into the public domain)

The only legal way in which a work truly ceases to be the object of exclusive proprietary copyright (and, in effect, becomes free for use) is when the statutory term of copyright expires. After that, the work passes into the public domain.

In Ukraine, as in most countries, the general term of copyright for a work is:

• During the life of the author;
• Plus 70 years after his death (except in some specific cases, such as anonymous or co-authored works).

Only after this period of time the property rights to the work cease and it can be freely used by anyone without the author’s (or his heirs’) authorisation and without payment of remuneration. Until then, the rights exist and belong to the author or the person to whom he has transferred them. Thus, a waiver of copyright cannot accelerate the transfer of a work into the public domain.

For more information, see our article “Copyright Term and Related Rights: What to Know“.

Chapter 4: How to effectively dispose of a work without relinquishing rights

So, we have learnt that it is literally impossible to waive copyright. But if the author’s goal is to ensure a wide and free use of his work, there are quite legitimate and effective legal tools that allow him to do so without giving up his rights and retaining some control over the creation.

4.1 Using open licences (e.g. Creative Commons licences) to regulate the terms of use of a work

One of the most popular and effective ways to allow widespread use of a work is through the use of open licences, in particular Creative Commons (CC) licences. These licences are not a waiver of copyright; rather, they are a legally enforceable tool that allows the author to clearly define how others can use their work while retaining their rights.

Creative Commons licences offer a set of terms that the author can combine to create the desired level of openness:

• CC BY (Attribution): This is the most free licence available. Allows others to copy, distribute, publish and use the work, as well as create derivative works based on it, even for commercial purposes, as long as attribution is required.
• CC BY-SA (Attribution-ShareAlike – With attribution – Distribution under the same terms): Permits the work to be used (copied, distributed, modified), including for commercial purposes, but requires that any derivative works be distributed under the same licence (CC BY-SA). This ensures viral spread of openness.
• CC BY-NC (Attribution-NonCommercial): Allows the work to be used (copied, distributed, modified) for non-commercial purposes only, with attribution. Commercial use without the author’s separate consent is prohibited.
• CC BY-ND (Attribution-NoDerivatives): Allows others to use the work only in its original form (no modifications) and only with attribution. Prohibits the creation of derivative works.

Combinations of these elements (e.g. CC BY-NC-SA or CC BY-NC-ND) allow the author to fine-tune the terms of use. The use of such licences is an effective way of making the work available for wide use, while retaining control over key aspects and the right to the name.

4.2 Royalty-free licences: granting permission for use without commercial advantage to the author

If an author wishes to make his work available for use without commercial gain, he can use royalty-free licences. This is most often done through Creative Commons licences with an NC (NonCommercial use) element .

For example, an artist may publish their digital drawings under a CC BY-NC licence, allowing others to use them for personal projects, blogs or teaching, but prohibiting their sale or use in commercial advertising without a separate agreement. This allows the work to spread and benefit while protecting the author’s commercial potential.

Such licences are an excellent solution for authors who wish to promote culture, education or scientific research by making their works available for free, but reserving the right to monetise them in the future or to control commercial use.

4.3 Publishing a work with minimal restrictions (e.g., only requiring attribution)

For authors who wish to liberalise the use of their works as much as possible, while retaining only fundamental rights, the best option is to publish under licences with minimal restrictions. The best example is the CC BY (Attribution) licence.

This licence requires users to specify the author of the work. Everything else (copying, distribution, modification, commercial use) is permitted. This allows the work to become part of free culture or open science, maximising its dissemination and influence while satisfying the author’s personal non-proprietary right to the name.

For example, a photographer may publish his landscape photographs under a CC BY licence. This means that anyone can use these photos in their presentation, in an article, as a background for a website, even for a commercial product, as long as they mention the name of the photographer. This makes life much easier for users and encourages the dissemination of creativity without losing authorship.

4.4 Contact a lawyer for advice on the best way to achieve the author’s goal

While open licences like Creative Commons greatly simplify the licensing process, in some cases, particularly where unique works, significant commercial interests or complex international agreements are involved, a more tailored approach may be required.

A consultation with a lawyer specialising in copyright law can help:

• Determine the best tool: The lawyer will help you choose between alienation, licensing (open or individual) and other mechanisms, taking into account your goals and the specifics of the work.
• Draft a customised contract: If standard licences are not suitable, a lawyer can draft a contract with unique terms that will protect your interests as much as possible.
• Assess risks: A professional can help you identify potential legal risks associated with the chosen way of disposing of rights.
• Ensure legal compliance: A lawyer will verify that the chosen route complies with all applicable legal requirements.

If you are not sure which tool is best for your purpose, or need help drafting or analysing a contract, contact qualified copyright lawyers. Polikarpov Law Firm can help you develop a strategy for disposing of your rights that is in your best interests and compliant with the law.

Conclusions

To summarise, the issue of copyright waiver is a common but often misinterpretedissue . According to the legislation of Ukraine, a full and unconditional waiver of copyright, especially of personal non-property rights (the right to a name, the right to inviolability of a work), is impossible and legally null and void. These rights are inextricably linked to the author and are retained by him for life.

At the same time, the author has the full right to dispose of his property rights. Instead of a non-existent waiver, he can use clear and legal mechanisms: alienation of property rights ( outright sale) or licensing ( granting permission to use under certain conditions). For those who wish to distribute their works as freely as possible, there are open licences, such as Creative Commons (in particular CC0 for public domain), which allow flexible terms of use while preserving the underlying copyright.

It is important to note: any informal declarations of copyright relinquishment without proper legal formalisation create significant legal uncertainty. This may lead to undesirable consequences of copyright relinquishment for both the author (loss of control, risk of misuse) and users (risk of infringement).

Thus, formal legal tools should always be used to dispose of one’s work effectively and safely. This will allow the author to achieve his goal (be it monetisation or free distribution), avoid legal disputes and ensure clear terms of use for all parties concerned.