The Author as First Owner
As a general rule of thumb the author of the work is the first owner of copyright and any moral rights which are contained within it (see Moral Rights).
- In the case of literary, dramatic, musical or artistic works, (including photographs) the author of the work meaning the person who creates it.
- In the case of films, the author is the producer and the principal director (only the principal director has the moral rights)
- In the case of broadcasts, the author is the broadcaster
- In the case of a sound recording, the author is the producer
- In the case of a typographical arrangement, the author is the publisher
What if there is more than one author?
Where two or more people have created a single work protected by copyright and the contribution of each author is not distinct from that of the other(s), those people are generally joint authors and therefore joint first owners of copyright. For example, a computer program created by a team of programmers. This may not apply in certain situations (for example, when the authors are employees). If someone wanted to copy or use a work of joint ownership, all of the owners would have to agree to such a request, otherwise an infringement of copyright could still occur.
Where individual contributions are distinct or separate, each person would be the author of the part they created. For example, where the music of a song is written by one individual and the lyrics by another each owns the copyright in the work they created and it would only be necessary to obtain the consent of the lyricist to use the lyrics without the music. The permission of both authors will be required if the song (that is, the music and lyrics together) is to be recorded or performed.
Exceptions to the authors as first owner rule: Employee created works
If a literary, dramatic, musical or artistic work or film is made by an employee in the course of their employment, the employer is the first owner of copyright in the work. However, this can be overridden by the specific contract of employment or any other agreement to the contrary. An employer should keep careful records of which employees create works in the course of their employment, as well as the terms under which copyright material is produced on commission.
These records could be needed to prove ownership of copyright should this be disputed at a later date. Joint ownership might arise, for example, if a person was commissioned on a freelance basis to create a book together with one of the company’s employees. If there is no contract governing ownership of copyright produced it is possible that both the person being commissioned, and the company, would be joint first owners of copyright in the book that results.
Exceptions to the author as first owner rule: Commissioned works
When you ask or commission another person or organisation to create a copyright work for you, the first legal owner of copyright is the person or organisation that created the work and not you the commissioner, unless you otherwise agree it in writing. However, in some circumstances, for example when copyright is not dealt with in the contract to commission the work, Courts may be willing to find that there is an implied licence from the contractor to the commissioner so that the commissioner is able to use that work for the purpose for which it was commissioned. This does not necessarily result in a transfer of ownership. Instead, the company commissioning the work may only get a limited non-exclusive licence. This situation demonstrates the importance of establishing who owns copyright through a contract.
Exceptions to the author as first owner rule: Crown Copyright
Copyright material produced by Her Majesty or by a Servant or Officer of the Crown in the course of his or her duties belongs to the Crown. The Office of Public Sector Information (OPSI) can provide more information about this.
This business advice article is subject to Crown Copyright © 2012