Authorship and Ownership

Authorship and Ownership

1. Who is an author?

   • Categorical distinction:an author of an artistic, literary, musical and dramatic (authorial work) is known as a 'creator'; author of an entrepreneurial work is known as a 'producer'.
   • Defined in statute as 'someone who creates it'. But this is a legal tautology. Thought: is this a result of bad drafting, or purposely left open-ended for the purposes of statutory interpretation (Endicott (2005)
   • Donoghue v Allied Newspapers: issues with who is the author - the ghost-writer, or the person who supplies the information such as a famous celebrity? • It was said that ideas are not protected by copyright therefore the celebrity cannot claim copyright. • On the other hand, someone who is taking down the comments verbatim is not the author (e.g. a transcriber/amanuensis) • It must be that the journalist can only claim a copyright when they had edited etc. Similar to Walter v Lane (1900)
   • Cummins v Bond: who is the author? A seance resulting in someone jotting down 'info' from the dead. A question of whether the medium, the editor or the spirit was the author. The judge said he was not going to decide on spiritual origins: the medium has exercised skill to be the author. Although the defendant claimed to have transcribed, punctuated and arranged in paragraphs, his contribution was not considered to be sufficient.
   • Exceptions and special scenarios lie with computer generated works (s9.3 CDPA 1988); the person by whom the arrangements necessary for the creation of the work are undertaken. And the case of unknown authorship (s9.5 CDPA 1988) anonymous works or works under pseudonym. Orphan Works Directive: necessary to have some due diligence to identify the author
   • Entrepreneurial work: Sound recordings under s9.2(a) CDPA 1988 - the author is the 'producer' and s178 DPA: producer is identified as the person by whom the arrangements necessary for the making of the sound recording are undertaken - Films: s105(5) and (6) CDPA 1988 - the author is both the principle director and the producer - Broadcasts: s9.2(b) CDPA 1988 - the author is the person who 'makes' the broadcast But what about relays? Not an original transmitter - Typographical arrangements: the author is the publisher, not the editor
     • Films are considered works of joint authorship - producer and principle director (s10 (1A) CDPA) Broadcasts are also considered works of joint authorship: where more than one person is taken as making the broadcast.
   • The author is presumed to be the first owner.
     • Joint authorship is founded under the principles in Hadley v Kemp; 1) must show contribution - be careful of the performer/author distinction - if they do not do anything but simply perform the song e.g. change up the speed etc, they cannot be authors 2) must show it was through a process of collaboration in that it was a shared goal (translations are 2 distinct works) 3) the respective contributions must not be distinct from each other.

2. Who is an owner?

   • Employee Works: the employer is the owner of any works created by an employee, in the course of employment. (s11 CDPA) 1) Are they an employee? 2) Was the work created in the course of employment? s178: 'employee' someone under a contract of service or apprenticeship [distinctive from contract FOR service - freelancers]
     • Court looks to external factors to consider if someone is an employee such as; • Does the employer dictate the terms and conditions? • How Is the working relationship being affected by holiday and sick pay, pension rights, tax liability? • What is the parties’ view of their relationship? • What is the structure of the trade or profession concerned and the arrangements within it? • What is the employer providing and facilitating the equipment and utensils (e.g. computer)? • Whether the worker was carrying on business on his account or carrying on the business of the employer. • Was the worker properly regarded as part of the employer’s organisation?
   • Ownership can pass upon assignment of the licence or through employee works.