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Authorship and ownership of copyright Turin, October 2011 Dr E Derclaye.

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Presentation on theme: "Authorship and ownership of copyright Turin, October 2011 Dr E Derclaye."— Presentation transcript:

1 Authorship and ownership of copyright Turin, October 2011 Dr E Derclaye

2 Sections of the act and case law S. 9, 104-105 - Kenrick v Lawrence,Walter v Lane, Cala Homes v McAlpine,Cummins v Bond, Ray v Classic FM S. 10 - Donoghue v Allied Newspapers, Heptulla v Orient Longman, Bamgboye v Reed, Brighton v Jones S. 11 - Byrne v Statist, Stevenson Jordan & Harrison v McDonnell & Evans, Noah v Shuba 2(c) E. Derclaye 2000-2011

3 Joint works 3 conditions: Common design (plan, collaboration) but no need to intend to create a joint work only need to collaborate in creation/execution of the work Contributions must not be distinct Significant contributions but don’t need to be equal (c) E. Derclaye 2000-20113

4 Employee works Employee Course of employment Agreement to the contrary –Contract: of service>< for services –Control and power –Integral part of the business –Who pays for NI, pension, taxes, provides equipment, wages>< fees, takes financial risk 4(c) E. Derclaye 2000-2011

5 Byrne v Statist [1914] 1 KB 622 “He did not make the translation in pursuance of any duty owed by him to the Financial Times as one of their staff, or in the course of his employment by them, but his employment to translate was an independent engagement quite outside his ordinary duties, and was done entirely in his own time.” (Per Bailhache J. at 623). 5(c) E. Derclaye 2000-2011

6 Stevenson Jordan & Harrison v McDonnell & Evans [1952] 69 RPC 10 “(…)[U]nder a contract of service, a man is employed as part of the business, and his work is done as an integral part of the business; whereas, under a contract for services, his work, although done for the business, is not integrated into it but is only accessory to it.” (per Denning, L.J.) 6(c) E. Derclaye 2000-2011

7 Commissioned works BP Refinery (1978)): “for a term to be implied, the following conditions (which may overlap) must be satisfied: –(1) it must be reasonable and equitable; –(2) it must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it; –(3) it must be so obvious that "it goes without saying"; –(4) it must be capable of clear expression; –(5) it must not contradict any express term of the contract.” 7(c) E. Derclaye 2000-2011

8 Ray v Classic Fm “It seems quite clear to me upon the true construction of the consultancy agreement in its matrix of facts that the limits of what was contemplated at the date of the consultancy agreement were that the plaintiff's work would be used for the purpose of enabling the defendant to carry on its business as set out in recital A. namely to broadcast in the United Kingdom. The only necessary implication to give purpose and effect to the consultancy agreement is accordingly the grant of a license to the defendant to use the copyright material for the indefinite future for this purpose and for this purpose only.” 8(c) E. Derclaye 2000-2011

9 Fisher v Brooker Judge declared MF was co-author of the musical work for 40% + revoked his licence to exploit the work in 2005 CA reversed: it was unconscionable to revoke his licence – acquiescence and laches meant that MF had no copyright HL reinstated the judge’s ruling: There must be some detrimental reliance for laches to apply (length of delay and nature of acts done in interval) MF’s very long delay in asserting his claim in fact considerably benefited defendant => it outweighs any disadvantage to him resulting from the delay 9(c) E. Derclaye 2000-2011

10 Fisher v Brooker There is no equivalent in English intellectual property law to the doctrine of adverse possession in relation to real property and there is no statutory limitation in English law to claims to copyright => mere passage of time without asserting one’s copyright does not extinguish the copyright In addition, laches can only bar equitable relief and thus not a declaration of a property right recognised by statute, such as copyright 10(c) E. Derclaye 2000-2011

11 Assignment and licensing Dr Estelle Derclaye Turin, October 2011

12 Assignments The main provision as regards assignments is s. 90 Concept: Assignment means transfer: this means the copyright goes, leaves from A to B. A (the author if he is the first owner for example) is not the copyright owner anymore. Possible to assign copyright in future works Form: royalty or a lump sum, can be for some rights only 12(c) E Derclaye 2002-2011

13 Assignments Conditions: in writing and signed by or on behalf of the assignor, clearly identify work(s), consideration What if orally? The equitable rule applies i.e. so long as there is consideration, an oral contract purporting to assign will be enforceable Exception to these rules: for film production: when there is a contract between an author and a film producer, the author is presumed to have transferred his/her rental right to the film producer (s. 93A); springs from Rental right Directive art. 2(6) Moral rights are non assignable between living people, s. 94, but are on death (s. 95). 13(c) E Derclaye 2002-2011

14 Licenses Permission to do an act that would otherwise be prohibited without the consent of the copyright owner Exclusive and non exclusive: difference Exclusive licensee can sue infringers even without the copyright owner; action can be brought by both the excl. licensee and the copyright owner But formality to accomplish: licence must be in writing and signed by or on behalf of the licensor Implied licences: see Ray v Classic FM 14(c) E Derclaye 2002-2011

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