authorship & ownership prof. tanya aplin king’s college london [email protected]
TRANSCRIPT
Importance of authorship
• Owner of economic rights; holder of moral rights
• Calculating term of protection
• Point of attachment under Berne
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
United States• Copyright vests in the author• 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)
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”
• Childress v Taylor 945 F 2d 500 (1991)• Copyrightable contributions• Intention to be joint authors• No independent meaning standing alone (inseparable) or
some meaning when standing alone but primary meaning because of their combined effect (interdependent)
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 US Sup Ct
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– CCNV v Reid 490 US 730 (1989)
• Certain commissioned works if the parties expressly agree in writing that the work is a work made for hire
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
France
• Collaborative work - “a work in the creation of which more than one natural person has participated” Art 113-2
• Joint property of its authors• Applies to audiovisual/cinematographic works• Certain person presumed to be joint authors -
author of script; author of adaptation; author of dialogue; author of specially composed music; the director - Art L113-7
France
• Composite work - “a new which in which a preexisting work is incorporated without the collaboration of the author of the latter work” - Art 113-2
• 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 113-2– Property of the natural or legal person under whose
name it has been disclosed. The author’s rights shall vest in such person - Art 113-5
France• Employee created works• See Art L111-1• Preassignment of economic rights?• See now Art L113-9 for software
United Kingdom• Author is the person who creates the work - s9 CDPA
1988• Author is first owner UNLESS created by an employee in
the course of his employment - s 11(2)• 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)
• Films - work of joint authorship of producer and principal director
European Union (EU)• Only a few provisions that address authorship or
ownership• Software & Databases - see Art 2 Software Dir & Art 4
Database Dir– Initial ownership rests with authors– Ownership can rest with legal person designated as rightholder
where Members States so permit– Employers entitled to own economic rights in software
• Films - principal director must be recognised as one of the authors– Art 2(2) Rental Right Directive; Art 1(5) Satellite & Cable
Directive; Art 2(1) Term Directive
EU - Luksan• 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
Luksan• 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
Luksan• Presumptive transfer of rental right to producer according
to Rental Right Dir. (Art 3(4)) - allows producer to recoup investment - on this investment rationale Member States can operate a presumption for other economic rights provided not an irrebuttable presumption precluding the principal director from agreeing otherwise
• Principal director entitled by operation of law to right of fair compensation for private copying
• Cannot lay down an irrebuttable transfer of remuneration/compensation rights