Ownership Of Copyright Under Employment: Circumstances For Employee Ownership

Copyright Law in the United Kingdom

What circumstances can employee own his copyright under the cause of employment?

This essay will be looking at the copyright work and thereby focusing on the circumstances where the author can own his own work while under employment. The rule that copyright initially vested in author is however subject to a number of exception. The first is concern with work made by employee while under employment. Copyright law in the United Kingdom is an origination of the concept of common law. It became a statutory law with the passing of the Copyright Act, 1911 and currently the act is known as Copyright, Designs and Patents Act, 1988 (Cornish, Llewelyn and Aplin 2013). The type of work to which this Act applies is literary meaning song lyrics, computer programmes, commercial documents, articles and newsletters. In the year 1992, computer programmes was also considered as literary works as part of the copyright act. The Act shall also be applicable to dramatic, musicals and artistic work such as plays, dance, recordings and paintings. Additionally, films and broadcasts shall also be considered as part of Copyright Act in the United Kingdom (Bently and Sherman 2014).

Section 9 to 11 of the Copyright Act 1988, deals with ownership and authorship of copyright. For the purpose of this Act, author shall mean a person who creates the unique work (Harriss and Atkinson 2013). In the case of sound recording, the producer who produced the sound recording shall be regarded as the owner, in the case of broadcast, the person who made the broadcast shall be regarded as the owner and in the case of a typographical arrangement, and the person who published the edition shall be considered as the owner. This is important in the case of employment as during the course of employment a person who creates any of the following work shall also be regarded as the owner, having full ownership over them. However, until the time the person continues his employment, the employer is considered as the owner of the copyright even though the employer is the creator of the work (Kur, Planck and Dreier 2013). According to section 9 subsection 3 of the Act, in the case of dramatic, literary and musical work that is generated by computer, the author of such work shall be the person who made the work generate through computer program (Davis 2012). For the purposes of employment, a person who generates such work shall be regarded as the author however; the ownership belongs to the employer until the time the person is in the course of his employment (Lemley 2012).

Ownership and Authorship of Copyright under Section 9 to 11 of the Copyright Act 1988

The following statutory provisions are contained in the Copyright, Designs and Patents Act, 1988 for the protection of literary, dramatic and musical works. According to section 1(1) (a), the following kind of works are given copyright protection such as literary, dramatic, musical and artistic (Bently and Sherman 2014). Hence, copyright provides protection to the idea of the creation and not just the creation.  Generally, names, phrases and titles should not be regarded as unique work however; a logo may be regarded as a unique work as it has all the elements of uniqueness and originality in it (Von Hippel, Jong and Flowers 2012).

According to section 11 of the Copyright Act, 1988, where an employee creates any work during the course of his employment, then the employer shall be considered as the owner of the work unless there is a contract that states a contrary (Cornish, Llewelyn and Alpin 2013). According to Section 215 of the ownership of design right, the first owner of a design is considered as the owner of the maker of the design unless such a design is created in the course of employment (Griffith, Miller and O’Connell 2014).

When a company, group of people or individuals create a work copyright arises. The work created shall fall under the protection of copyright if it is original exhibiting a certain level of originality, skill and labor. Interpretation of copyright is related to the creation of the work and the idea behind it rather than only the creation (Torremans 2013). For example, the idea for formation of a book shall not be protected but the content of the book shall be protected.        Under normal circumstances, an individual or collective individuals who authored the work are considered as owners of the work and they are considered as people having the first ownership of their work (Coleman 2013). However, if such work is produced as part of the employment then the first owner shall be the company that is the employer of the person who created the work. In cases of freelancing, the authors of the work are the persons who created the work rather than the employer of the same. The owner of the copyright may sell or transfer his ownership right to some other person. If the copyright work is taken as sample from the previous work then the copyright does not survive anymore. The owner of the copyright has the exclusive authority to bring an action against the person who breached his exclusive copyright. However, this is not always the case, if the work is created by the employee in the course of their employment; the employer becomes the owner of the copyright (Griffith, Miller and O’Connell 2014). If an independent contractor creates the work and if the contractor in writing signs an agreement that states that the work shall be considered as authority of the employer then the independent contractor shall not have any claim for obtaining copyright over the work. The employer in this case shall be regarded as the owner of work. Finally, if the owner of the copyright sells his exclusive right then he may not be regarded as owner of the unique work (SHErMAN and Bently 2015).

Protection of Literary, Dramatic and Musical Works

When two or more authors prepare a work with the intention of combing their contributions into indivisible parts, then the work is considered as a creation of joint authors. The joint authors are considered as copyright owners. The best example of joint author work is a book, which is written by more than one author (Lang and Heasman 2015). However, if the book is primarily written by any one of the authors and later other authors contribute to the original work then such a work shall not be regarded as an inseparable work. Copyright enables the holder of the right to have control over the distribution of their work and prevent others from doing the same. The ability of the owners to manufacture and distribute the work helps them in deriving economic benefits from their work (Hall et al. 2012). To publish or produce the work in the market, the publisher or the seller has to obtain the permission of the author and he has to acquire exclusive right over the work. If copyright ownership is an origination from the author then the publisher has to derive authority from negotiation of the terms of the license. By vesting copyright ownership on the author, they have the authority to control the honor of their work and benefit them from exploitation. This is the internal effect of copyright. The internal and external ownership of copyright give the authority of creation, distribution and production of the original works. Additionally, lawmakers have also introduced legislative remuneration powers for securing the private lending rights of the unique work (Hart, Clark and Fazzani 2013).

A common situation that many companies face is regarding the creation of a new computer software system. It is seen in many companies than ace programmer’s works on a part time basis, since programming is a major part of an IT undertaking, an outside computer software consultant is appointed to help the ace programmer with the implementation of the software. After a lot of hard work and time investment, both the software developer develop new software that could effectively manage the computer software system (Evers, Miller and Spengel 2015). The company paid the software developer whom they hired from outside and the company assumed themselves as the owner of the software system. After few months, it is seen that the programmer uses the software for their personal use and they obtain economic benefits from the software that was created for the company. The general assumption in such cases is that once we are paid for the work for which we are appointed, the ownership of the work gets over and the employee considers himself the owner of the copyright work (Harriss and Atkinson 2013). This is however true, and the programmers have the right to utilize their work and make economic benefits out of it. Law considers such act as lawful; the software company should have made the programmers sign a contract that restricted them from using the software outside the premises of the company for distribution or marketing purposes (Kur, Planck and Dreier 2013).

First Ownership of Copyright

In determining whether the author is under a contract of services, the first step is to differentiate between “contract of services” and “contract for services.” The “contract of service” can be determined by applying the contract law and tort law and very few have been applied in the context of copyright law. The older case laws have given us the evidence that greater the control of the employer over an employee, greater is the chances that the employee shall fall under the contract of services (Davis 2012). The control was considered as an important part of the Copyright Act, 1911 in the United Kingdom. However, recently the companies are departing from the control test. The Courts have relied on other areas of law for interpretation other than the law of copyright for determining the contract of service. Many types of policy considerations exist for the interpretation of copyright other than the copyright for the understanding of contract of service. The control test is not appropriate for all copyright matters, especially in those areas where skilful employees are involved. In such cases, it is almost impossible to establish the amount of control that an employer has over a creation (Lemley 2012). Stephenson, Jordan and Harrison Ltd. v. MacDonald and Evans is a famous case that have provided for a new approach for understanding of the term of contract of service. In this case it was held, that an integral part of the business as explained by Lord Denning is the test of copyright to determine whether the author is an employee under the contract of service. As per the requirements of the Act, it is important to proof that the employee is under the contract of service however, this is not sufficient for copyright ownership. The work should be made while the employee was in the course of their employment. This is difficult to determine as the hours of employment and extent of employment is not always specified. The Courts sometimes rely on the facts of the case to determine the course of employment (Cornish, Llewelyn and Alpin 2013).

In the case of Byrne v. Statist Co, it was held that an employee who was appointed for making translations of the speech for extra remuneration other than his regular salary, held the copyright in his translated speech. The author undertook the translation during his own time and not part of his employment. It was for this reason, why he was able to claim copyright over his work (Davis 2012). In the case of Stephenson, Jordan and Harrison Ltd. v. MacDonald and Evans, an accountant owned copyright over the lectures he wrote with the business in which he was working. The lectures were prepared for universities and colleges and thus were not considered as part of his employment. Other place where the problem of determination may arise is with respect to the staff in the hospital or nurse or staffs who work at school. If the staffs who works at school prepares lecture note for his own convenience then it shall be regarded as his copyright and not the copyright of the company as his job is not to prepare lecture notes but to teach students. Hence, this shall be regarded as part of the author’s own work. In such case, the employer cannot seek protection over the work of his employee. Each case must be examined depending on the facts of the case and according to the “contract of service” of the employee.

Ownership of Copyright under Employment

The importance to establish ownership of the work, depending on the facts can have a profound effect on the employer. Firstly, the employee may sue the employer for infringement of the employee’s copyright. Secondly, except the employer has received an assignment from the employee and is willing to take that risk that, he owns the copyright in the given work; the employer may get involved into two different kind of lawsuit to protect his copyright against infringement. First he may get involved with the employee and then with the infringer of the copyright. The process of trial for solving the ownership of work by the employer is time consuming, expensive and aggravating. If the employer becomes unsuccessful in his initial attempt against the employee, he will lack the standing to sue the alleged infringer. Only when the employer is able to prove that he is the owner of the copyright, he will be able to proceed with the action against the infringer (Griffith, Miller and O’Connell 2014).

Secondly, the problem is related to the ambiguous wording of the Act and the journalist enjoys this regime. According to the Act, an employer of the journalist is given copyright in the work of the journalist if the employer meets the requirements of ownership. However, this right is restricted to the publication of work in any newspaper or magazine. There is absence of such a provision in the Act and that is why it is noted in many scenarios that journalist take advantage of this. Once a work is published in any magazine or newspaper, the owner of the work shall be the employer and not the employee. An associated problem with this provision is the policy fundamental to this. It is difficult to a section that the journalists are paid only for the creation of their work while other employees create copyright works incidental to their responsibilities. Commercial screenwriters and artists are also employed to create copyright works; however, they have no special right to restrict certain uses of their works (Lang and Heasman 2015).

Thirdly, is the extent of rights that an employer has in the work of the employee. An employer who owns copyright in the work not only has the right to distribute or sell the work but also obtains subsidiary rights of the work. This is enumerated in section 3 of the Copyright Act, for example, dramatic, film and translation rights. These rights do not only continue during the course of employment but it also continues even after the employment contract is terminated. This gives opportunity to the employer to enjoy the work even after the employment with the employee is over. However, this right should not prejudice to the rights of the employees.

Transfer of Copyright Ownership

Due to this wide scope of exploitation of the work, it attains a value that is beyond the consideration of the employee and the employer. It is not always the activity of the employer that increases the value of the work. A work may be exploited in a way that is not known to the employee and the employer and it may attain a greater popularity of the work than anticipated. This may happen when the advertisement firm for the advertisement of his work pays an employee and consequently the advertisement becomes very popular. The advertising company reaps the benefit for the popularity of the advertisement. Though the work was created for some other purpose and for some other project and gradually used by someone else for monetary benefits (Hart, Clark and Fazzani 2013).

Conclusively, it may said that the inadequacies in the present law system and the use of incomplete phrases  such as “ contract of service “ and “ course of employment” have led to greater uncertainty in the understanding of law. There is a need for amendment in the existing Copyright Law of United Kingdom and especially amendment should be made regarding the policy and uncertainty of the rights of the journalist and rights of the employer for the exploitation of the copyright work.

References:

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