Ownership of copyright
Contents
Ownership of copyright
The basic rule is that copyright initially belongs to the author of the work concerned. If a work is created by 2 or more persons and it is not possible to identify their individual effort, they will be joint owners of the work. If an employee makes the work in the course of their employment, the employer is the owner of any copyright in the work, subject to contrary agreement.
The author is the person who creates the work. In the following cases, the author is:
- the producer of a sound recording, meaning the person who made the arrangements necessary for making the sound recording;
- the producer and principal director of a film. The producer of a film is the person who made the arrangements necessary for making the film;
- the person making a broadcast; and
- the publisher of a typographical arrangement.
In relation to photographs, the person who took the photograph is generally the author. However, if one person arranged and composed the subject matter of the photograph, and another person merely pressed a button to take the shot, the person who arranged the scene is likely to be deemed to be the author.
Employees
Where a work is made by an employee in the course of their employment, the employer will be the first owner of copyright in the work, subject to any agreement to the contrary.
A work that is not created in the normal course of employment will not automatically belong to the employer. For this reason, employment contracts sometimes contain provisions to secure ownership of any copyright works created by employees, even those created by employees in their own time and even if they are not related to the employer's business.
Business partnerships
In the case of a partnership business, where a copyright work is made by a partner, the work will be owned by the partner. However, if the partner made the work in the ordinary course of the partnership business and for the purpose of the partnership, the work will be regarded as an asset of the partnership, unless the partnership agreement provides otherwise. The partner will retain the legal ownership of the work in the absence of an assignment, but the partners will have the right to have the copyright applied for the benefit of the partnership.
Commissions
If a person commissions a third party to create a work, the third party will usually still own the copyright even though someone else has paid for the work to be done. In this situation, the person paying for the work will usually take an assignment of all present and future rights in any work created for them by the third party.
If this is not done, and the court is asked to imply terms relating to the copyright ownership, the court will only imply the minimum necessary terms. Depending on the facts, it is possible that the person commissioning the work will not get the ownership of the copyright, but will instead receive a licence to use the work only.
Collaborations
Where more than one person has created a work, the work may be classed as a work of joint authorship if the contribution of each author is not distinct from that of the other authors. If it is distinct, 2 or more separate works will exist. Each person claiming authorship must have used enough skill and labour to be classed as an author. Each joint author has the same rights as a sole author. However, one joint author may sue any of their other joint authors who do any of the acts restricted by copyright (including reproduction) without their consent.
Unknown authorship
A work is a work of unknown authorship if the identity of the author is unknown (i.e. it is not possible for a person to ascertain the author's identity by reasonable inquiry) or, in the case of a work of joint authorship, if the identity of none of the authors is known.