Intellectual property – guidance

Ownership of copyright works

Ownership of copyright works may depend on the circumstances under which the work was created.

Creator and first owner

In the case of literary, dramatic, musical or artistic works, the author or creator of the work is usually the first owner of any copyright in it. The joint authors and first owners of copyright in a film are the principal director and the film producer. However, there is an exception where such works are made by employees.

The author and first owner of copyright in a sound recording is the record producer. The author and first owner of the copyright in a broadcast is the broadcaster. The author and first owner of the copyright in a published edition is the publisher.

Copyright in material produced by a Government department belongs to the Crown. The National Archives can provide more information about this.

Works created for an employer

Where a literary, dramatic, musical or artistic work, or a film, is made by an employee in the course of his employment, his employer is the first owner of any copyright in the work (subject to any agreement to the contrary). The expression “in the course of employment” is not defined by the Act but in settling disputes the courts have typically had to decide whether the employee was working under a ‘contract of service’ (eg as an employee) or a ‘contract for services’ (eg as a freelancer or independent contractor).

Where a person works under a ‘contract for services’ he will usually retain copyright in any works he produces, unless there is a contractual agreement to the contrary.

An employer should keep careful records of which person(s) created the work for them and any contractual agreements which were in force. The period of copyright protection will usually still be linked to the date of the death of the creator(s) - that is the employee(s).

Commissioned works

When you ask or commission another person or organisation to create a copyright work for you, the first legal owner of copyright is the person or organisation that created the work and not you the commissioner, unless you otherwise agree it in writing.

However, in some circumstances, for example when copyright is not dealt with in the contract to commission the work, courts may be willing to find that there is an implied licence allowing the commissioner to use the work for the purpose for which it was commissioned. This does not necessarily result in a transfer of ownership. Instead, the commissioner of the work may only get a limited non-exclusive licence. This situation demonstrates the importance of establishing who owns copyright through a contract.

Prior to 1 August 1989 though, the copyright in photographs, portraits and engravings (and only those types of work) which were created as a result of a commission were owned by the commissioner and NOT the creator. Therefore at that time, if you commissioned someone to take photographs for you (for instance of your wedding party), then you would be the owner of the copyright in those photographs.

Joint authors

Where two or more people have created a single work protected by copyright and the contribution of each author is not distinct from that of the other(s), those people may be considered joint owners. There are slightly different rules for what are referred to as “co-written works” – see below.

Joint ownership might arise, for example, if a person was commissioned to create a website together with one of the company’s employees. It is likely that both the person being commissioned and the company would be joint first owners of copyright in the website. If someone wanted to copy or use a work of joint ownership in some way, all of the owners would have to agree to such a request, otherwise an infringement of copyright could still occur.

On the other hand where individual contributions are distinct or separate, each person would be the author of the part they created (for instance where the music and lyrics of a song are created by two different people). In these circumstances, if you wished to use just the lyrics you would only need the permission of the copyright owner of the lyrics.

Ownership of copyright can be transferred, so where something is produced that has involved contributions from more than one person, it would be possible for copyright in all the material to be owned by a single person as a result of appropriate transfers. Indeed, collaborators can agree in advance that copyright in what is to be produced should be owned by a single person or body. This could be helpful when permission needs to be given in the future. However, alternative solutions that might be equally helpful could involve all parties agreeing licensing arrangements in advance.

Co-written works

Where the music and the lyrics in a musical work with words are written specifically for each other by different people (a song from a musical, for example), the term of copyright will last until 70 years following the death of the last surviving composer or lyricist. The music and lyrics will still be separate copyright works, but will have the same length of protection.

Works created by students

There is nothing in the Copyright, Designs and Patents Act 1988 which relates specifically to ownership of copyright in works created by students. Therefore, the normal rules of ownership will apply as outlined in sections 9-11 of the Act.

A teacher/lecturer should not be able to claim joint ownership on a student’s work unless they have made a substantial contribution to that work (this may occasionally occur with primary school children, where a teacher’s involvement with a pupil’s work would usually be more considerable than the interaction with an A-level student).

However, some universities and colleges may ask that the students assign their copyright over to the establishment when enrolling. Alternatively, the establishment might extract a royalty free licence for any works created as a condition of enrolment. In the absence of any such contract, the copyright would remain with the creator.