Authorship and first ownership of copyright Flashcards
Is the Berne Convention and TRIPs agreement addressed with initial copyright ownership?
No, they are not addressed to this topic.
In the US, what is the interest in the initial ownership of copyright?
Ownership of the physical embodiment of the work has no bearing on copyright ownership
Whats happened in the case Pope v. Curl?
“But I am of opinion it is only a special property in the receiver; possibly the property in the paper may belong to him; but this does not give a licence to any person whatsoever to publish them to the world, for at most the receiver has only a joint property with the writer.”
Pope v. Curl, 2 Atk. 342 (1741) established for the first time the fundamental distinction between ownership of a particular copy of a copyrighted work and the ownership of the copyrighted work. The principle is reflected in Section 202 of the Copyright Act.
“Authorship and ownership are inextricably entwined” Explain what this means in the USA
The concepts of ownership and authorship are inextricably entwined under the Copyright Act of 1976. Copyright ownership vests, at the moment of creation, initially in the author or authors of the work. Under Section 201 of the Act, the creator of a work is, at least presumptively, its author and owner of the copyright.
What is a joint work and a joint authorship?
17 U.S. Code § 101
A “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.
17 U.S. Code § 201. Ownership of copyright
(a) Initial Ownership.–Copyright in a work protected under this title vests initially in the author or authors of the work. The authors of a joint work are co-owners of copyright in the work.
The authors of a joint work are co-owners of the copyright in the work. Each owns a share of
an undivided whole or is entitled to undivided ownership or interest in the entire work, despite
any differences in each author’s contribution.
The implications of joint-ownership are profound. As co-owners of the copyright, joint authors are treated as tenants in common. Tenancy in common is a common law property concept. If A and B own real property as tenants in common, each has the right to possess the entire property and neither has the right to exclude the other. In copyright law, each cotenant has the right to use or license some third party to use the work, and each co-tenant can convey nonexclusive rights to the joint work without the consent of his or her coauthor, subject to a duty to account to the other co-owners for any profit.
Who qualifies as a joint author in the US?
Factors to be considered:
❑ Degree of contribution to the work
* Not necessarily the same for all co-authors, but it must be ‘authorial’ (i.e. ‘creative’) in nature
* Technical consultation, even if ‘substantial and valuable’, is not enough
❑ Intention to create a joint work (“common design”)
* The intention can be implied or formulated ex post
* There must be some collaborative process in place
* …and some degree of control over the final form of the work
❑ Contributions are ‘inseparable or interdependent’
* ‘Inseparable’ = when the work contains a single form of authorship (e.g. a song)
* ‘Interdependent’ = when the works contains multiple forms of authorship (e.g. music and lyrics)
Explain the case Aalmuhammed v. Spike Lee
In Aalmuhammed v. Lee, 202 F.3d 1227 (9th Cir. 2000), the Ninth Circuit held that “substantial and valuable contributions” to a film by a technical consultant did not make the consultant an author of the joint work in the film. The court explicitly stated that “authorship is not the same thing as making a valuable and copyrightable contribution.” Aalmuhammed clearly differentiates between the modest level of creativity required to make a work
copyrightable and the extent of contribution required to claim the status of a co-author of a joint work.
Explain the difference between works of joint authorship v. collective works in the UK.
Collective works = work where the contributions of the collaborators are distinct and separate from each other.
Examples: song (music + words), collective book, encyclopaedia, …
Collective works → Each author has a separate copyright (Common ownership)
Works of joint authorship → All the authors own the copyright in the work (Joint ownership)
For example case Beckingham v Hodgens [2003] EMLR 18, * Significant contribution of the “right kind of skill and labour”
* No requirement of an intention to create a joint work
Whats does the US legislation say about the works made for hire?
17 U.S. Code § 201 – Ownership of copyright
(b) Works Made for Hire.— In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.
17 U.S. Code § 101
A “work made for hire” is—(1) a work prepared by an employee within the scope of his or her employment; or (2) a work specially ordered or commissioned [for use as one of nine categories]
* The doctrine has limited application in the EU and in the UK
Nine categories of works that can be ‘commissioned’:
1. Contribution to a collective work
2. Part of a motion picture
3. Translation
4. Supplementary work (e.g. forewords, illustrations, charts, editorial notes,…)
5. Compilation
6. Instructional text
7. Test
8. Answer material for a test
9. Atlas
