Crash course on copyrights: Ownership of a copyrighted work
An important aspect of copyright law is who owns the copyright to a particular work. Normally, it is the person who created the work, but in some cases the employer of this person receives the copyright. And the copyright holder can always transfer his copyright or license others to do certain things with the work.
Who owns the copyright to a particular work can be a difficult question. Usually this question arises shortly after creation of the work, as at this time there is no evidence to prove ownership. Later, the copyright holder is free to transfer or sell the copyright to somebody else. The necessary paperwork provides the evidence of who owns what. The most common situations can briefly be summarized as follows:
- The creator normally owns the copyright.
- The employer owns the copyright for job-related works.
- Works by independents are owned by the creator.
Since creating a literary or artistic work is a highly personal process, it is only logical that the creator of the work receives the copyright protection. The creator is of course free to grant everybody permission to use his work, or to transfer or sell the copyright to somebody else. Many musical artists transfer the copyrights to their works to a record label, in return for a portion of the revenue of every copy sold. An architect who designs a house for somebody else typically will transfer the copyright on the house to the buyer.
A large number of works is produced by people working for somebody else. For example, a software publishing house may employ several programmers to create computer programs, one or more technical writers to write the manual for it, and a graphical artist to create illustrations in the program and manual and to design the packaging. In such a case, the copyright to the works created by these employees belongs to the employer.
A generally recognized exception to the above principle is when creating works is not a normal task for the employee in question. Also, if the work created by the employee is not related to his work, then the employee holds the copyright himself. So, a computer programmer who writes a novel on his office computer during work hours keeps the copyright on the work himself. Of course, if his boss finds out, he might not keep his job for very long.
More and more, employees contracts contain clauses on the intellectual property rights for works created by the employee. The contract of the computer programmer in the above example might for instance say that the IPR of all the works created by the programmer belong to the employer. In that case his boss might be able to claim the copyright on the novel.
However, such a claim may be considered unreasonable in court, and much depends on the specific facts of the situation. For example, if the novel in question is based on a game that the computer programmer was developing for his company, it is much more likely that the copyright to the novel belongs to the employer.
While the copyright situation for employees may not always be clear, the situation for freelancers and other hired workers who work independently (not as an employee) is even less clear. The general principle still says that the copyright on a work belongs to the author. The copyright on a work by a hired hand rests with that hired hand. This holds even when he was asked to create that specific work by a third party in return for a certain payment. It is thus necessary to include a clause in the contract in which the copyrights on the work is assigned to the entity that hires the freelance worker.
Without such a clause in the contract, the rights granted to the entity that buys the work are much more limited. The hiring entity is at least permitted to use the work for the purpose it was commissioned, but he is generally not allowed to do anything else with it. It can be very difficult to establish the purpose for which a creation of a work was commissioned. For example, can the logo specially commissioned for a Website also be used on the company stationery? And on the company cars? So, it is in general a good idea to include such a clause.
Certain jurisdictions, most notably the USA, allow for a "work for hire" arrangement for freelancers who are hired to make certain works. By law, a work for hire belongs to the entity commissioning the work, not the actual creator of that work. Typically this requires a specific clause in the contract that labels the work as "work for hire", and only certain categories of works (such as movies, software, music or photos) can be classified as a work for hire.
The creator is usually free to transfer or sell the copyright (in Dutch) to somebody else. The copyright to a work is in most countries regarded as an object of property, much like a physical object. It can thus be bought and sold, and even inherited when the copyright holder dies.
The transfer of copyright typically requires a written contract specifying exactly what is being transferred. One can, for example, transfer the right to make and sell copies, and keep the right to publish the work on the radio.
Giving a license on the work to others
Rather than transferring the copyright, the creator can also give specific permissions to others. This is called licensing. The author of a book can license a printer to create copies of the book, without having to give all the copyrights to the printer. This allows the author of the book to control where and when he will sell the book.
Licenses with publishing houses are often exclusive, so that the publishing house is the only entity who can publish that book or that piece of music.
- Crash course: Introduction
- Crash course: What copyright protects
- Crash course: Requirements for copyright protection
- Crash course: Ownership of a copyrighted work
- Crash course: Duration of copyright
- Crash course: Rights granted by copyright
- Crash course: Limitations on the rights granted by copyright