Lesson 2: Who Owns Copyright in a Work?

artGenerally speaking, the person who first creates the literary, musical, artistic or dramatic work is the first owner of the copyright. However, there are some exceptions to this general rule. The scenarios below provide some examples of differences in ownership rules as well as how copyright can be transferred from one copyright owner to another.

Select each of the six scenarios to uncover some relevant considerations in copyright ownership.

Scenario 1: Employee versus Independent Contractor

You are hiring someone in Canada to write some marketing brochures for you. You are deciding whether to hire them as an employee or as an independent contractor (a freelancer).

In Canada, if you are hiring the person as an employee, then, as the employer, you will be the first owner of the copyright, unless both parties enter into an agreement to assign the copyright to the employee. In contrast, if you hire the person as an independent contractor rather than as an employee and pay them for services rendered, then that person will be the owner of the copyright, unless you negotiate an agreement to have the copyright assigned to you. Therefore, it is important to address ownership of copyright issues at the time you are entering into a contract for services with an independent contractor.

The principle that an employer owns the copyright in works made by employees during the course of employment is not the rule around the world. A good number of countries do not make a distinction for works made in the course of employment. In these countries, regardless of the employment status of the author/creator, this person will always be the first owner of the copyright. As an employer, then, you would always have to negotiate an assignment of copyright with your employees if you want to retain control over their creative expressions made during the course of their employment.

Scenario 2: Collaborating on a Book Project

You and your friend are writing a book together. You have a great relationship, but you both have different objectives for the book once it is finished.

Different countries might have different legal tests to determine whether you and your friend are joint authors/creators and therefore joint owners of the copyright. In Canada, for example, you are likely to be considered joint authors/creators because you both had the intention of writing the book together and, therefore, you would likely jointly own the copyright. You may want to have a co-authorship agreement to address what rights each of you will have in the future, especially if you each decide you want to do different things with the book once you have finished it.

Or one of you might assign (transfer) their rights to the other so that only one author/creator would be the copyright owner. The assignment should be in writing, since, in most countries, an assignment is required to be in writing and signed. An assignment can be given for the entire bundle of copyright rights or limited to a specific activity (for example, the right to publish or the right to translate). It can also be a worldwide grant or limited to a specific jurisdiction or jurisdictions.

Scenario 3: Owning a Painting

You have just bought a painting by a local artist. You love the painting and want to share it with your friends. You would like to take a photograph and post it on your Facebook page. You wonder whether you can do this.

When you buy a painting, you own the physical object and can exercise your property rights over the tangible object. You can destroy the painting, lend it to a friend, hide it in a closet or display it. However, while you own the physical object and can display it and so forth, you do not have any rights over the creative expression that appears on the canvas. Therefore, you cannot make copies of the painting such as by photographing it, copying it by hand or allowing others to copy it or photograph it, unless your actions are permitted by law (as we will discuss later), or you have explicit permission from the copyright owner to do so.

Scenario 4: Reselling a Painting

You have decided you want to sell the work of art for a sizeable profit but are concerned that the artist will want some form of payment for their work having been resold.

In Canada, the general rule is that once the work of art is first put up for sale by the artist, the artist can only receive the initial purchase price and has no claim in respect of subsequent sales of that artwork.

But in some other jurisdictions, especially in some European civil law countries, the law recognizes a resale right, whereby creators of artistic works are entitled to a royalty every time the work of art is resold.

Scenario 5: Publishing a manuscript posthumously

Your uncle is a famous author. When he dies, he leaves you with all of his original private papers, but he leaves your sister with the right to publish all of his written works. Among his papers, you find a manuscript of a book that he has not yet published.

Your sister has the right to publish the manuscript because she owns the right of publication (a copyright right).

This point was made in a case involving Charles Dickens, the famous author of such English classics as Oliver Twist and A Tale of Two Cities. Dickens’s will left his private papers to one party and his copyrights to another. Among his private papers was an unpublished manuscript. A lawsuit ensued over who had the right to publish the manuscript: the owner of the private papers or the owner of the copyrights. The court held that only the owner of the copyrights could authorize the publication of the manuscript, even though the owner of the private papers had physical possession of the manuscript.1 The ownership of the paper and ink with which the creative work was expressed did not bring with it the right to publish the creative expression itself.

1 In Re Dickens, [1935] Ch 267.

Scenario 6: Buying a Computer Program

You have just acquired a piece of software and want to know whether you can make copies of it for everyone in your office.

When you purchase a computer program, you don’t have ownership of the computer code (the copyright work). Instead, you are only licensing the program (i.e., you have permission to do certain things with it), and your use of the software is governed by the terms of the licence. Some copyright laws will allow you to make a copy of the program for back-up purposes or for other specific reasons permitted by law, but, in general, you will likely not be allowed to make copies of the computer program for your office staff, unless you are expressly licensed to do so by the copyright owner.

Last modified: Wednesday, 21 October 2020, 9:41 AM