authorship & ownership prof. tanya aplin king’s college london [email protected]

17
Authorship & Ownership Prof. Tanya Aplin King’s College London [email protected]

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Page 1: Authorship & Ownership Prof. Tanya Aplin King’s College London tanya.aplin@kcl.ac.uk

Authorship & Ownership

Prof. Tanya Aplin

King’s College London

[email protected]

Page 2: Authorship & Ownership Prof. Tanya Aplin King’s College London tanya.aplin@kcl.ac.uk

Importance of authorship

• Owner of economic rights; holder of moral rights

• Calculating term of protection

• Point of attachment under Berne

Page 3: Authorship & Ownership Prof. Tanya Aplin King’s College London tanya.aplin@kcl.ac.uk

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

Page 4: Authorship & Ownership Prof. Tanya Aplin King’s College London tanya.aplin@kcl.ac.uk

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)

Page 5: Authorship & Ownership Prof. Tanya Aplin King’s College London tanya.aplin@kcl.ac.uk

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)

Page 6: Authorship & Ownership Prof. Tanya Aplin King’s College London tanya.aplin@kcl.ac.uk

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

Page 7: Authorship & Ownership Prof. Tanya Aplin King’s College London tanya.aplin@kcl.ac.uk

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

Page 8: Authorship & Ownership Prof. Tanya Aplin King’s College London tanya.aplin@kcl.ac.uk

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

Page 9: Authorship & Ownership Prof. Tanya Aplin King’s College London tanya.aplin@kcl.ac.uk

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

Page 10: Authorship & Ownership Prof. Tanya Aplin King’s College London tanya.aplin@kcl.ac.uk

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

Page 11: Authorship & Ownership Prof. Tanya Aplin King’s College London tanya.aplin@kcl.ac.uk

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

Page 12: Authorship & Ownership Prof. Tanya Aplin King’s College London tanya.aplin@kcl.ac.uk

France• Employee created works• See Art L111-1• Preassignment of economic rights?• See now Art L113-9 for software

Page 13: Authorship & Ownership Prof. Tanya Aplin King’s College London tanya.aplin@kcl.ac.uk

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

Page 14: Authorship & Ownership Prof. Tanya Aplin King’s College London tanya.aplin@kcl.ac.uk

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

Page 15: Authorship & Ownership Prof. Tanya Aplin King’s College London tanya.aplin@kcl.ac.uk

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

Page 16: Authorship & Ownership Prof. Tanya Aplin King’s College London tanya.aplin@kcl.ac.uk

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

Page 17: Authorship & Ownership Prof. Tanya Aplin King’s College London tanya.aplin@kcl.ac.uk

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