Friday, 16 March 2012

Misconceptions surrounding copyright

Many think that when you pay a company to create something for you that you naturally own the copyright. This is not correct. Copyright requires an explicit transfer of rights.

When an author or contractor undertakes an assignment to write a report, that report does not become the sole property of the organization who commissioned it unless they have expressly stated a transfer of rights in the contract.

When a work is created by an employee, that is a separate matter.

This is always a complex issue, but the general rule for written works is that the author owns the copyright. Even where the author is a journalist under an employment arrangement for a blog, magazine or newspaper, they do not lose their rights to use their creation. In fact, the  journalist maintains the rights for selected purposes. These include use in the creation of a book or for photocopying. Here the employer maintains all other rights [s 35(4)].

What this means is that even in cases where a person was employed to create a report, they can still maintain the rights to include that material in a book that they publish. That is, they can (even as an employee for a magazine say) take their own material and publish this as a part of a book deal. Here, the original employer does maintain rights over the report, but the author has the rights to use the their creation in a derivative work.

It is significant to note that the general rule and the exceptions can be altered through agreement and by assignment [ss 35(3),97(3),98(3),179]. As a consequence, a company can commission a work where the company requires the author of the report to sign an agreement that the company owns the copyright. It is possible to assign Copyright ownership through written contract. As a result, it is unwise to make the assumption that the owner of a copyright will be either the creator of the work in question, the company who commissions a work or even the creator’s employer. Before jumping to conclusions, it is essential to check ownership and this should be checked in each particular case.

Copyright law specifically recognizes that both works and derivative works may be made by more than one party.

This is referred to as a work of joint authorship. In this instance, the copyright in such a work is jointly owned unless it is specifically contracted differently (that is the rights have been separately assigned). A work will be deemed to be jointly owned in the event that the contributions any one author made are not distinguishable.

This is different to instances where various authors contribute separate parts of a work such as in separate chapters. Here, each author is not a joint author, but each author maintains and holds the copyright created through their own input.

So, when a paper or report has been created jointly through the involvement of several individuals, they authors in committee or through whatever process now each hold copyright in the material works they have created. Each author can make derivative works using the whole or even republish a book using the material.

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