Authorship & Ownership

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1 Authorship & Ownership Prof. Tanya Aplin King s College London Importance of authorship Owner of economic rights Holder of moral rights Calculating term of protection Point of attachment under Berne Prof. Tanya Aplin 1

2 International Author undefined in Berne Confined to natural persons? Note: Cinematographic works - makers - Art 4(a) Berne - ownership a matter for legislation in the country where protection claimed - Art 14bis Works of joint authorship - Art 7bis - term measured from death of the last surviving author Art 2(6) protection operates for benefit of authors and successors in title United States Copyright vests in the author Author = person who provides minimal level of creativity Works made for hire - employer or commissioner is the author Joint work - Authors of a joint work are co-owners Collective works - copyright in contributions distinct from copyright in the collective work (ss. 101 and 201 US Copyright Act 1976) Prof. Tanya Aplin 2

3 United States Joint work is a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole Duration measured by life of last surviving joint author Joint authors are joint owners Each owner has an equal, undivided interest; cannot grant assignments or exclusive licences without consent of other joint owners United States Childress v Taylor 945 F 2d 500 (1991) Intention to merge contributions into a unitary whole Intention to be joint authors Contributions must be copyrightable - mere contribution of an idea insufficient No independent meaning standing alone (inseparable) or some meaning when standing alone but primary meaning because of their combined effect (interdependent) Prof. Tanya Aplin 3

4 United States Thomsen v Larson 147 F 3d 195 (2 nd Circuit) Foll. Childress v Taylor Must intend to be joint authors intention not strictly subjective Look for indicia of authorship Contributor s decision making authority over the work How the parties credit themselves (the billing ) Written agreements with each other and with third parties United States Collective work: is a work, such as a periodical issue, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective work. Copyright in each separate contribution is distinct and vest in the author of the contribution. BUT the owner of copyright in the collective work is presumed to have acquired only the privilege of reproducing and distributing the contribution as part of that particular collective work, any revision of that collective work, and any later collective work in the same series. S. 201(c ) See Tasini v New York Times (2001) US Sup Ct Prof. Tanya Aplin 4

5 Works made for hire - U.S. Works made for hire - s. 101(a) Work prepared by an employee within the scope of his or her employment Certain commissioned works if the parties expressly agree in writing that the work is a work made for hire Significance is that the employer or commissioner is considered the author (and thus owner) s201(a) CCNV v Reid 490 US 730 (1989) adopts common law agency meaning not control test/s Commissioned works must squarely fit within the enumeration France Author of a work of the mind shall enjoy by the mere fact of its creation, an exclusive incorporeal property right This right shall include attributes of an intellectual and moral nature as well as attributes of an economic nature the existence or conclusion of a contract for hire or of service by the author shall in no way derogate from the enjoyment of the right Arrt L111-1 IP Code Prof. Tanya Aplin 5

6 France Collaborative work - a work in the creation of which more than one natural person has participated Art Joint property of its authors Art L113-3 Shall exercise by common accord, but where contribution of a different kind may separately exploit his own personal contribution without prejudicing the exploitation of the common work Renoir case (1973) France Collaborative works include audiovisual works Art L113-7 Certain person presumed to be joint authors - author of script; author of adaptation; author of dialogue; author of specially composed music; the director; and authors of the pre-existing work (if adapted from a pre-existing work) - Art L113-7 Prof. Tanya Aplin 6

7 France Composite work - a new which in which a preexisting work is incorporated without the collaboration of the author of the latter work - Art Property of the author who produced it subject to the rights of the author of the preexisting work France Collective work - a work created at the initiative of a natural or legal person who edits it, publishes it, and discloses it under his direction and name and in which the personal contributions of the various authors who participated in its production are merged in the overall work without it being possible to attribute to each author a separate right to the work as created. Art Property of the natural or legal person under whose name it has been disclosed. The author s rights shall vest in such person - Art Le Brun v Braesheather Cass. civ 1, 18 Oct, 1994, (1995) 164 RIDA 305 Prof. Tanya Aplin 7

8 France Employee created works See Art L111-1 Preassignment of economic rights? See now Art L113-9 for software Unless otherwise provided by statutory provision or stipulation, the economic rights in the software and its documentation created by one or more employees in the execution of their duties or following the instructions given by their employer shall be the property of the employer and he exclusively shall be entitled to exercise them United Kingdom Author: person who creates the work - s9 CDPA 1988 General rule: author is first owner UNLESS created by an employee in the course of his employment - s 11(2) CDPA 1988 Works of joint authorship - a work produced by the collaboration of two or more authors in which the contribution of each author is not distinct from that of the other author/s - s10(1) CDPA 1988 Films deemed a work of joint authorship of producer and principal director Prof. Tanya Aplin 8

9 United Kingdom Works of joint authorship Brighton v Jones (2003) (Park J, Ch D) Play Stones in His Pockets Contribution needs to be significant and original Contribution must be of the relevant kind, ie towards the creation of the work Contribution does not have to be to the actual writing, but it must be to the expression There must be collaboration United Kingdom Employee created works Robin Ray v Classic FM (1998) Lightman J, Ch D Need to show a contract of service, not a contract for services what the actual contract says is relevant (it was a consultant agreement) but not determinative No contra indications that the plaintiff was an employee he was free to provide services where and when, and there was no supervision or control by defendant Prof. Tanya Aplin 9

10 United Kingdom Commissioned works - Robin Ray v Classic FM (1998) An assignment or licence may be implied into the contract Must be guided by what is necessary in the circumstances - ie take a minimalist approach Assignment is likely to be necessary where client needs not only right to use the copyright work but to exclude the independent contractor and third parties from using the work, e.g. Sell copies in competition with contractor or third parties Where contractor creates a work which is derivative from a pre-existing work of the client Where contractor is engaged as part of a team with employees of the client to produce a composite or joint work European Union (EU) Is there an EU notion of authorship? Painer C-145/10 Portrait photograph can be protected by copyright if such photograph is an intellectual creation of the author reflecting his personality and expressing his free and creative choices in the production of that photograph. [94] The protection conferred is not inferior to other works the degree of protection does not depend on possible differences in the degree of creative freedom in the production of various categories of works. [97] & [98] Prof. Tanya Aplin 10

11 EU Only a few EU provisions address authorship or ownership In the case of a work of joint authorship, term shall be calculated from the death of the last surviving author Art 1 (2) Term Directive 2006/116/EC But no agreed upon definition of work of joint authorship! EU musical works Musical works Art 1 Term Extension Dir. 2011/77/EU Deals with the issue that some Member States treat musical works as including both music and lyrics which may be co-written, while others treat music and lyrics as separately authored works see rec. 18 & 19 Art 1: The term of protection of a musical composition with words shall expire 70 years after the death of the last of the following persons to survive, whether or not those persons are designated as co-authors: the author of the lyrics and the composer of the musical composition, provided that both contributions were specifically created for the respective musical composition with words. (Emphasis supplied) Prof. Tanya Aplin 11

12 EU audiovisual works Cinematographic or audiovisual works Principal director must be recognised as one of the authors (Member States free to designate other additional coauthors) Art 2(2) Rental Right Directive; Art 1(5) Satellite & Cable Directive; Art 2(1) Term Directive The term of protection of cinematographic or audiovisual works shall expire 70 years after the death of the last of the following persons to survive, whether or not these persons are designated as co-authors: the principal director, the author of the screenplay, the author of the dialogue and the composer of music specifically created for use in the cinematographic or audiovisual work. Art 2(2) Term Directive EU - audiovisual works Luksan v van der Let C-277/10 (9 Feb 2012) Luksan - scriptwriter & principal director of documentary; van der Let - producer Concluded audiovisual production contract - L assigned all copyright in film but excluded certain modes of exploitation - e.g. digital making available. No provision on statutory rights of equitable remuneration. Dispute arose because Producer made the film available on the Internet; Producer argued that Austrian law (Art 38(1)) vested all exclusive economic rights in him including rights to equitable remuneration Prof. Tanya Aplin 12

13 EU - audiovisual works With regard to exploitation rights at issue (satellite broadcasting, making available, reproduction) principal director is to be considered as an author and these rights vest in him; precludes national law that allocates these rights by operation of law exclusively to producer Art 14bis Berne doesn t help; EU has exercised competence here & Member States cannot compromise Incompatible with Information Society Directive to accept that the principal director be denied the exploitation rights Art 17(1) & (2) Charter Fundamental Rights EU - right to property (including IP) - Austrian legislation tantamount to depriving him of this property EU software & databases See Art 2 Software Dir & Art 4 Database Dir Initial ownership rests with authors BUT ownership can vest in thelegal person designated as rightholder where Members States so permit Employers entitled to own economic rights in software Prof. Tanya Aplin 13

14 EU orphan works Directive 2012/28/EU on certain permitted uses of orphan works Applies to literary works, cinematographic or audiovisual works and phonograms contained in collections of publicly accessible libraries, educational establishments or museums as well as in the collections of archives or film or audio heritage institutions, first published or broadcast in a Member State or unpublished but made publicly accessible by these organisations with the consent of the rightholder - Art 1 Orphan work if none of the rightholders is identified or, even if one or more is identified, none is located despite a diligent search; considered an orphan work in all Member States EU orphan works Diligent search Art 3 Good faith search consulting the appropriate sources, carried out in the Member State of first publication or, in the case of cinematographic and audiovisual works, the Member State which has the headquarters or habitual residence of the producer Permitted uses Art 6 Making available to the public Reproduction for the purposes of digitisation, making available, indexing, cataloguing, preservation or restoration Only to achieve aims related to their public interest missions Fair compensation due to rightholders that put an end to the orphan status of work Prof. Tanya Aplin 14

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