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Copyright - Authorship - Coggle Diagram

- - - - Exceptions also exist in relation to Crown copyright, parliamentary copyright, and works created by officers of international organizations - CDPA 1988, s. 11(3)
  - - - In order for an employer to be first owner of copyright, it is also necessary to show that the work was made in ‘the course of the employment’.
        
        Even though an author is an employee, if the work was not created in the course of employment, the author retains ownership of copyright.
        
        Whether a work has been made in the course of employment will depend on the particular circumstances of the case in hand.
      - An important factor that has influenced the courts when determining whether a work has been made in the course of employment is whether the making of the work falls within the types of activity that an employer could reasonably expect or demand from an employer. In turn, this depends on the scope of the employee’s duties.
        
        This can be seen, for example, in Stevenson Jordan v. MacDonald & Evans, in which the question arose as to whether an accountant or his employer (a firm of management consultants) owned copyright in a series of public lectures that the accountant had given about the budgetary control of businesses.
        
        Morris LJ noted that the employer had paid the expenses of the lecturers, that the employee-accountant could have prepared the lectures in the company’s time, used its library, and had the lectures typed up by company secretaries, and that the lectures were a useful accessory to his contracted work
        
        Nonetheless, Morris LJ found that, since it was not shown that the accountant could have been ordered to write and deliver the lectures, they were not created in the course of his employment. As such, the copyright belonged to the employee rather than to the employer.
      - Noah v Shuba was a copyright infringement action in relation to a book called A Guide to Hygienic Skin Piercing, written by the claimant, Dr Noah. During the proceedings, it was argued that, when Dr Noah wrote the guide, he was employed as a consultant epidemiologist at the Public Health Laboratory Service; as such, the copyright vested in his employer.
        
        While there was no doubt that Dr Noah was an employee of the Public Health Laboratory, it was less clear as to whether the guide had been written in the course of his employment.
        
        Dr Noah discussed his work with colleagues, made use of the services of the Public Health Laboratory Service library, and had the manuscript typed up by his secretary. In addition, the guide was published by the Public Health Laboratory Service at its own expense.
        
        Nonetheless, Mummery J held that the guide had not been written in the course of Noah’s employment. One factor that influenced this decision was that Dr Noah had written the draft at home in the evenings and at weekends. Another was that Noah’s contract required him to publish articles, but did not require him to write books.
      - the mere facts that a work is made at home or that the employee makes use of their personal resources do not necessarily mean that it will fall outside the scope of the employee’s duties. Ultimately, the question of whether a work is made within the scope of employment depends upon the contract of employment.
        
        In Missing Link Software v. Magee the question arose as to whether software written by an employee outside work time and on his own equipment was created in the course of his employment and thus copyright in it owned by his employer.
        
        The claimant company argued that, since it had employed the defendant to write programs of the kind in dispute, similar programs, even if written in his spare time, were created in the course of his employment.
        
        The Court held that although the employee had written the software in his own time and on his own equipment, nonetheless it was not unarguable that, because it fell within the scope of the tasks that he was employed to carry out, the computer programs were created within the course of his employment.
      - In Byrne v. Statist [1914] 1 KB 622, a journalist made a translation to be used in the newspaper in his own time; this was held not to be in the course of his employment.
    - - the copyright in works made in the course of employment will not be treated as belonging to the employer where there is an agreement to the contrary. Such an agreement may be written or oral, express, or implied.
        
        As we will see, there is a general requirement that assignments of copyright be in writing. However, such formality is unnecessary with respect to the agreement reversing the presumption of initial ownership, which can be oral or implied. But to refer to a relationship as not being one of employment was not an implied agreement that copyright was to vest in the employee: Robin Ray v. Classic FM [1998] FSR 622.
      - In some cases, such agreements have been implied from custom. For example, in Noah v. Shuba, Mummery J said that if the skin-piercing guide had been written in the course of Dr Noah’s employment, he would nonetheless have implied a term into Dr Noah’s contract that the copyright remained with the employee - Noah v. Shuba [1991] FSR 14, 26–7
        
        The reason for this was the Public Health Laboratory Service’s long-standing practice of allowing its employees to act as if they owned copyright in their works: it allowed employees to assign copyright to publishers, to claim royalties, and (with respect to the case itself) did not assert that it owned copyright.
    - - An ‘employee’ is defined in the 1988 Act as a person who is employed under a contract of service or apprenticeship - CDPA 1988, s. 178
      - However, there are some work relationships that are less easy to designate as employment relations. There is no simple way to tell whether the contract is an employment contract. Chitty on Contracts suggests the following eight factors to consider:
        
        (4) whether the worker was carrying on business on his own account or carrying on the business of the employer;
        
        (5) the provision of equipment;
        
        (3) whether the worker was properly regarded as part of the employer’s organisation;
        
        (6) the incidence of tax and national insurance;
        
        (2) whether the worker’s interest in the relationship involved any prospect of profit or risk of loss;
        
        (7) the parties’ own view of their relationship;
        
        (8) the structure of the trade or profession concerned and the arrangements within it.
        
        (1) the degree of control exercised by the employer;
        
        H. G. Beale (ed.), Chitty on Contracts (32nd edn, 2015), [40–010].
- - - - Kogan v Martin
        
        (…) a work of joint authorship is a work produced by the collaboration of all the persons who created that work…. Here again it is wrong to focus exclusively on the person who does the writing. There is a further important distinction to bear in mind, which is that between the making of the work and its reduction to material form (or fixation). The work may exist before its reduction to material form… Thus, it has been held that the person who wields the pen is not necessarily the sole author of the work. In Cala Homes (South) Ltd v Alfred McAlpine Homes East Ltd … a director gave detailed instructions to an architect as to the design of a house which the architect then drew. Laddie J … held that the director was a joint owner of the copyright with the architect.
    - - Kogan v Martin
        
        The contribution made by a joint author must be an “authorial” one. [In a previous case decided by Laddie J] … the person who laboured extensively in setting the specification for computer software, and in fixing errors and bugs in it, was not a joint author with the person who actually wrote the software. What counts as an authorial contribution may vary depending on the type of work, however. A screenplay is concerned with providing a plot and dialogue which enable the reader to visualise what is going to happen on the screen, and get a feeling for what the audience will experience. The author is directly concerned with such matters as the choice of characters and the incidents in the film which will bring out those characters, and display their emotions. The storyline and plot are also of direct concern to the author and are a part of what he or she creates. These aspects of a screenplay can, in principle, amount to a contribution of an authorial kind.
        
        A further question is how much of a contribution to the creation of a work must be made before the contributor to a collaborative work becomes a joint author. At trial there appeared to be consensus that the tests for (a) what was a sufficient exercise of skill to attract copyright in an original work, (b) what was a sufficient part to be taken from the work to amount to infringement, and (c) what was a sufficient contribution to justify joint authorship were all aligned. By analogy with the decision of the Court of Justice of the European Union (CJEU) in Infopaq … all three questions were tested by asking whether there were elements which expressed the author’s own intellectual creation.
      - Thirdly it is necessary to show that each of the authors contributed to the making of the work.
        
        In order to render a person a joint author, the contribution must be ‘significant’ and ‘original’ - Godfrey v. Lees [1995] EMLR 307, 325–8
        
        The requirement of originality is easily satisfied: this merely requires that the claimant’s contribution consist of ‘creative choices’ (formerly ‘skill and effort’) - Martin v. Kogan [2017] EWHC 2927 (IPEC), [43]
        
        The requirement that the contribution be ‘significant’ has proved more problematic.
        
        The better view is that ‘significant’ here means ‘substantial’, or ‘considerable’, or ‘non-trivial’, rather than ‘aesthetically important’ - Fisher v. Brooker and Onward Music [2007] FSR (12) 255, [46] (Blackburne J preferred to ask whether the claimant’s contribution was ‘non-trivial’).
        
        While, to be a joint author, it is necessary for an author to have made a significant and original contribution to the work, joint authorship does not require that the respective contributions be in equal proportions
        
        Joint authorship will usually be presumed to lead to equal shares, but this may be varied either by the court, where it feels comfortable evaluating the contributions—as in Bamgboye v. Reed [2004] EMLR (5) 61, 86, [85]
        
        In Fisher v. Brooker and Onward Music [2007] FSR (12) 255 (Fisher, author of the organ solo for ‘A Whiter Shade of Pale’, was awarded a 40 per cent share)
        
        Joint authorship will usually be presumed to lead to equal shares, but this may be varied according to the agreement of the parties: Beckingham v. Hodgens [2003] FSR (14) 238, 249 (equal shares)
        
        In Minder Music v. Sharples [2015] EWHC 1454 (IPEC), [73], [84]–[90] (A. Michaels) (a producer who added string elements to song by The Fall was entitled to 20 per cent share in music copyright)
        
        However, the contribution is required to be of the right kind
        
        A contribution to the words of a song will normally give rise to joint authorship of the literary work, but not of the music
        
        A contribution to the ‘performance’ of a piece of music will not render the performer a co-author of the musical work - Peter Hayes v. Phonogram [2003] ECDR (11) 110, 128
        
        Expert evidence may need to be employed to assist the court in distinguishing between what is the work and what is performance: Barrett v. Universal Island Records [2006] EWHC 1009, [356].
        
        a contribution to ‘interpretation and theatrical presentation’ is not to be regarded as a contribution to the creation of a dramatic work - Brighton v. Jones [2005] FSR (16) 288, [56].
    - - The first requirement that must be satisfied for a work to be one of joint authorship is that the work must have been produced through a process of collaboration between the authors.
        
        Kogan v Martin
        
        if two persons undertake jointly to write a play, agreeing in the general outline and design, and sharing the labour of working it out, each would be contributing to the whole production, and they might be said to be joint authors of it. But, to constitute joint authorship, there must be a common design.
        
        One must not merely be the editor or commentator of the other. The work of art must be the result of a common creative effort.
        
        This means that, when setting out to create a work, there must have been some common design, cooperation, or plan that united the authors (even if only in a very loose sense) - Levy v. Rutley (1871) LR 6 CP 583; Cala Homes (South) v. Alfred McAlpine Homes East [1995] FSR 818, 835; Martin v. Kogan [2017] EWHC 2927 (IPEC), [25].
        
        So long as the authors have a shared plan of some sort, there is no need for them to be in close proximity for them to collaborate. Indeed, it is possible for the collaboration to take place over long distances (a practice made much easier because of email) - Cala Homes (South) v. Alfred McAlpine Homes East [1995] FSR 818, 835.
        
        There is no additional requirement that the parties must have intended to create a work of joint authorship - Beckingham v. Hodgens [2003] FSR (14) 238, 249
    - - Kogan v Martin
        
        If the two contributions are distinct it is useless to talk about joint authorship
      - Fourthly for a work to be jointly authored, the respective contributions must not be distinct or separate from each other. This means that the contributions must merge to form an integrated whole (rather than a series of distinct works)
        
        For example, if the contributions of two authors were to merge in such a way that no single author were able to point to a substantial part of the work and say ‘that is mine’, the authors would be joint authors.
        
        If, however, one author were to write the first four chapters of a book and the other author, the remaining six chapters, instead of the resulting book being a joint work, the respective authors would have copyright in the particular chapters that they wrote - CDPA 1988, s. 10(1)
        
        For example, a song that comprises music and lyrics is not a work of joint authorship if one author writes the lyrics, while the other composes the music: the music and lyrics are distinct works, each of which has a single author - But this will count as a work of ‘co-authorship’, a designation with implications in terms of term of protection, but not the rights of the contributors: CDPA 1988, ss 10A, 12(8).
        
        In Beckingham v. Hodgens [2003] FSR 238, 248, it was held that where one person added an introduction to the music of a song, this introduction was not ‘distinct’ because it was ‘heavily dependent’ on the rest of the tune and because, by itself, it would ‘sound odd and lose meaning’. In any case, the introductory fiddle music was repeated a number of times elsewhere in the arrangement.
        
        Cf. Hadley v. Kemp [1999] EMLR 589, in which Park J suggested that a saxophone solo in the middle of Spandau Ballet’s ‘Gold’ might be a distinct work.