Defining Ownership of Intellectual Property
The general rule for copyright work is that the original author or creator is the first owner of the copyright. Copyright work includes written software, databases, theatrical music, and artistic or photographic works.
Anyone involved in producing copyrightable work should understand the basic operation of copyright laws to ensure that ownership is correctly managed as the parties intend. It is easy to create confusion, particularly when contracting or collaborating casually on a venture that becomes formal over time such as a software start-up.
Individuals and Intellectual Property
Individuals producing work on a self employed basis will generally be the first owners of copyright, particularly for literary or artistic works.
Specific types of works such as film, sound recordings, broadcasts and published editions have specific rules. For example, the first owners of the copyright and economic rights for film recordings are the principal director and the film producer who share joint authorship.
Copyright is a form of property that can be sold, inherited and transferred like tangible property, either in whole or in part. It is possible that economic rights can belong to someone other than the original creator but the original creator still possesses the moral rights as long as the copyright lasts.
Employees and Intellectual Property
The main exception to the general copyright rule is when works are created by an employee within the capacity of fulfilling their contract of service. In the absence of any agreement to the contrary, the employer automatically owns any copyright that the employee creates during the course of their employment.
‘During the course of employment’ is not defined by statute, but the courts decide whether a person was working under an employment contract or contract for services when creating copyright works.
Persons working under a contact for services are considered by the courts to be independent contractors.
Independent Contractors and Intellectual Property
Any work that can be produced in a tangible form and recorded can be contracted such as software, music, films and photography. When using a contractor to create a copyright work; the first legal owner is the contractor unless specifically agreed otherwise.
For cases where the contracted work does not include an agreement dealing with the copyright; in the event of a dispute, the courts may be willing to find that an implied licence exists from the contractor to the contracting party.
A licence allows the contracting party to use copyright work but it is not a form of transfer of ownership.
Collaborative Projects and Intellectual Property
If two or more people have created a copyright work and have made “significant and original contributions” towards it where their contributions are not distinct from each other, they will be joint first owners and authors.
If someone seeks to use work produced by joint ownership, all of the authors responsible for the work have to agree to the request.
Joint ownership of a copyright can be transferred so it is possible for the whole copyright to be owned by one person as a result of appropriate transfers by the joint owners.
To avoid difficulties later on, it is always best to seek legal advice before creating or requesting work for or from third parties or working on a collaborative project. For more information contact will@osmondandosmond.co.uk or by telephone on 0207 583 3434.
