lecture 4 - Authorship & Ownership
It is important to be able to identify the owner of a copyright interest. Only the owner (or, in some instances,
the owner’s licensee) has authority to bring proceedings for copyright infringement (and therefore to exercise
the interest to secure a financial return). The general rule (see below) is that the author is the first owner of a
copyright interest. It is therefore generally necessary to be able to establish the identity of a work’s author.
(This can also be important for other reasons – relating to the term of copyright and the grant of moral rights
[see below]). Note that the general is that the author is the first owner of copyright. Copyright is a property
right that can be assigned (see section IX below) and, as a result, the owner of a copyright interest may well be
someone other than the work’s author.
Authorship of a work
- Under the CDPA 1988, there is a close connection between the concepts of “authorship” and “first
ownership”. However, it is important to distinguish between the law governing “authorship” of a
copyright work and the ownership of copyright in that work. As you will see, the author of a work will
not necessarily be the owner of the copyright in that work.
- Nevertheless, even where authorship and ownership are in different hands, it may still be important
to know the identity of a work’s “author” – for example, to determine the term of copyright
protection or to consider a potential breach of moral rights.
- General rule - “‘Author’, in relation to a work, means the person who creates it.” (CDPA s.9(1))
Authorship of copyright in works not requiring originality (“related rights”)
In general, deemed to be the person / organisation responsible for their coming into being (see, CDPA 1988, s
9(2))
- Sound recordings or films
The author of a sound recording is the producer. The joint authors of a film are the producer
and the principal director. (CDPA s.9(2) (aa) and (ab)). See Slater v. Wimmer [2012] EWPCC 7
[13].
Under s.178, the “producer” is defined as “the person by whom the arrangements necessary
for the making of the recording or film are undertaken.”
For further, explanation of this concept, see A & M Records v Video Collection [1995] EMLR
25; Bamgboye v. Reed [2004] EMLR 5 For further discussion of the definition of the
“producer”, see Bently et al, 5th ed, ch 5, sec 2.2.2.
- Broadcasts
The author of a broadcast is deemed to be: “...the person making the broadcast...or, in the
case of the broadcast which relays another broadcast by reception and immediate re-
transmission, the person making that other broadcast.” (CDPA 1988, s9(2)(b)) [
- Published edition
The author of the typographical arrangement of a published edition is the publisher (CDPA
1988 s.9(2)(d)). (CDPA s.9(1))
- Computer-generated works
By virtue of CDPA s.9(3), the author of a literary, dramatic, musical or artistic work which is
“computer generated” is “the person by whom the arrangements necessary for the creation
of the work are undertaken”.
“’[C]omputer-generated’ , in relation to a work, means that the work is generated by
computer in circumstances such that there is no human author of the work.” (CDPA 1988, s
178)
For an example of a computer-generated work, see Nova Productions Ltd v Mazooma
Games Ltd [2006] RPC 379.
Works requiring originality – the “creator”
- The creator of a work is the person who has contributed relevant labour and skill. Thus, the question
of authorship is closely connected with the question of originality considered above.
- Is the putative author responsible for the “expression” of the work, rather than simply (a) a
contributor of background “ideas” or “facts” or (b) a simple amanuensis?
- Donoghue v Allied Newspapers Ltd [1938] Ch 106 cf. Cummins v Bond [1927] 1 Ch 167
Joint authorship
, - Where the conditions set out in CDPA 1988, s 10(1) are satisfied, a work will be a work of joint
authorship: “. . . [A] “work of joint authorship” means a work produced by the collaboration of two or
more authors in which the contribution of each author is not distinct from that of the other author or
authors...” (CDPA, s.10(1))
- This provision establishes three conditions which must be satisfied before a work will be regarded as a
work of “joint authorship”. Each author must have contributed sufficiently to the work; there must
have been collaboration and the contributions of each author must not be distinct.
- There is a presumption that joint authorship will generally lead to entitlement in equal shares.
However, this presumption can be varied, see Brown v Mcasso Music Productions Ltd [2006] EMLR 3;
Fisher v Brooker [2007] FSR 255. For a recent example of a case concerning a claim for joint
authorship in the lyrics and music for a song (by the group, The Fall) see Minder Music Ltd v Sharples
[2015] EWHC 1454.
- Note that certain broadcasts are deemed to be works of joint authorship under CDPA, s 10(2)): “A
broadcast shall be treated as a work of joint authorship in any case where more than one person is to
be taken as making the broadcast (see section 6(3)).”
- For a thorough recent review of the principles applicable to joint authorship of works, see Martin v
Kogan [2017] EWHC 2927 (IPEC) [13]-[56]. The judgment in this case has been appealed and a
Judgment of the Court of Appeal on this issue can be expected in the course of the first term of the
academic year 2019-20.
- Sufficient contribution to the work
A putative joint author must make a sufficient contribution of the “right kind” of labour and
skill. See, for example:
Ray v Classic FM Plc [1998] FSR 622
Fylde Microsystems Ltd v Key Radio Systems Ltd [1998] FSR 449 Cala
Homes v. Alfred McAlpine Homes [1995] FSR 818
Fisher v Brooker and Onward Music Ltd [2007] FSR 255
In Martin v Kogan [2017] EWHC 2927 (IPEC) [13]-[56], Hacon J distinguished between
“primary” and “secondary” skills involved in the creation of the work, suggesting that the
contribution of “primary” skills was more likely to give rise to a successful joint authorship
claim.
- Collaboration
For a work of “joint authorship” to arise, there must have been some common design uniting
the authors (see Levy v Rutley (1871) LR 6 CP – “a joint labouring in furtherance of a
common design”). There is no requirement of an intention to create a work of joint
authorship – see Beckingham v. Hodgens [2003] EWCA 143.
For an illustration of this requirement, see Brighton v Jones [2004] EMLR 507.
- Contributions not distinct
The requirement that contributions should not be “distinct” means that, for example, a book
made up of chapters written by different individual authors will not constitute a work of joint
authorship under the statute – rather, it will comprise a collection of separate, individual
copyright works
Unknown authorship
- A work is of “unknown authorship” where the identity of the author is unknown or, in the case of a
work of joint authorship, the identity of none of the authors is known (see CDPA ss 9(4)- (5)). In the
case of such works, special rules apply to the term of copyright (see s 12(3)) and a presumption of
ownership of copyright arises (s 104(4)).
First ownership
Basic rule - “The author of a work is the first owner of any copyright in it, . . .” (CDPA s.11(1))
- It had often been assumed that the copyright Directives have made relatively little impact on the
subject of authorship/ownership (for specific intervention, see Software Directive, Art 2(3); Database
Directive, Art 4). However, in (C-277/10) Luksan v van der Let, the CJEU held that an Austrian law
vesting exclusive rights in a cinematographic work in the producer, rather then the director, violated
the Information Society Directive (even though that Directive did not explicitly indicate the identity of
a cinematographic work’s author). The Court read across provisions stipulating the authorship of
cinematographic works from other Directives (which were not directly at issue in the case). The Court
It is important to be able to identify the owner of a copyright interest. Only the owner (or, in some instances,
the owner’s licensee) has authority to bring proceedings for copyright infringement (and therefore to exercise
the interest to secure a financial return). The general rule (see below) is that the author is the first owner of a
copyright interest. It is therefore generally necessary to be able to establish the identity of a work’s author.
(This can also be important for other reasons – relating to the term of copyright and the grant of moral rights
[see below]). Note that the general is that the author is the first owner of copyright. Copyright is a property
right that can be assigned (see section IX below) and, as a result, the owner of a copyright interest may well be
someone other than the work’s author.
Authorship of a work
- Under the CDPA 1988, there is a close connection between the concepts of “authorship” and “first
ownership”. However, it is important to distinguish between the law governing “authorship” of a
copyright work and the ownership of copyright in that work. As you will see, the author of a work will
not necessarily be the owner of the copyright in that work.
- Nevertheless, even where authorship and ownership are in different hands, it may still be important
to know the identity of a work’s “author” – for example, to determine the term of copyright
protection or to consider a potential breach of moral rights.
- General rule - “‘Author’, in relation to a work, means the person who creates it.” (CDPA s.9(1))
Authorship of copyright in works not requiring originality (“related rights”)
In general, deemed to be the person / organisation responsible for their coming into being (see, CDPA 1988, s
9(2))
- Sound recordings or films
The author of a sound recording is the producer. The joint authors of a film are the producer
and the principal director. (CDPA s.9(2) (aa) and (ab)). See Slater v. Wimmer [2012] EWPCC 7
[13].
Under s.178, the “producer” is defined as “the person by whom the arrangements necessary
for the making of the recording or film are undertaken.”
For further, explanation of this concept, see A & M Records v Video Collection [1995] EMLR
25; Bamgboye v. Reed [2004] EMLR 5 For further discussion of the definition of the
“producer”, see Bently et al, 5th ed, ch 5, sec 2.2.2.
- Broadcasts
The author of a broadcast is deemed to be: “...the person making the broadcast...or, in the
case of the broadcast which relays another broadcast by reception and immediate re-
transmission, the person making that other broadcast.” (CDPA 1988, s9(2)(b)) [
- Published edition
The author of the typographical arrangement of a published edition is the publisher (CDPA
1988 s.9(2)(d)). (CDPA s.9(1))
- Computer-generated works
By virtue of CDPA s.9(3), the author of a literary, dramatic, musical or artistic work which is
“computer generated” is “the person by whom the arrangements necessary for the creation
of the work are undertaken”.
“’[C]omputer-generated’ , in relation to a work, means that the work is generated by
computer in circumstances such that there is no human author of the work.” (CDPA 1988, s
178)
For an example of a computer-generated work, see Nova Productions Ltd v Mazooma
Games Ltd [2006] RPC 379.
Works requiring originality – the “creator”
- The creator of a work is the person who has contributed relevant labour and skill. Thus, the question
of authorship is closely connected with the question of originality considered above.
- Is the putative author responsible for the “expression” of the work, rather than simply (a) a
contributor of background “ideas” or “facts” or (b) a simple amanuensis?
- Donoghue v Allied Newspapers Ltd [1938] Ch 106 cf. Cummins v Bond [1927] 1 Ch 167
Joint authorship
, - Where the conditions set out in CDPA 1988, s 10(1) are satisfied, a work will be a work of joint
authorship: “. . . [A] “work of joint authorship” means a work produced by the collaboration of two or
more authors in which the contribution of each author is not distinct from that of the other author or
authors...” (CDPA, s.10(1))
- This provision establishes three conditions which must be satisfied before a work will be regarded as a
work of “joint authorship”. Each author must have contributed sufficiently to the work; there must
have been collaboration and the contributions of each author must not be distinct.
- There is a presumption that joint authorship will generally lead to entitlement in equal shares.
However, this presumption can be varied, see Brown v Mcasso Music Productions Ltd [2006] EMLR 3;
Fisher v Brooker [2007] FSR 255. For a recent example of a case concerning a claim for joint
authorship in the lyrics and music for a song (by the group, The Fall) see Minder Music Ltd v Sharples
[2015] EWHC 1454.
- Note that certain broadcasts are deemed to be works of joint authorship under CDPA, s 10(2)): “A
broadcast shall be treated as a work of joint authorship in any case where more than one person is to
be taken as making the broadcast (see section 6(3)).”
- For a thorough recent review of the principles applicable to joint authorship of works, see Martin v
Kogan [2017] EWHC 2927 (IPEC) [13]-[56]. The judgment in this case has been appealed and a
Judgment of the Court of Appeal on this issue can be expected in the course of the first term of the
academic year 2019-20.
- Sufficient contribution to the work
A putative joint author must make a sufficient contribution of the “right kind” of labour and
skill. See, for example:
Ray v Classic FM Plc [1998] FSR 622
Fylde Microsystems Ltd v Key Radio Systems Ltd [1998] FSR 449 Cala
Homes v. Alfred McAlpine Homes [1995] FSR 818
Fisher v Brooker and Onward Music Ltd [2007] FSR 255
In Martin v Kogan [2017] EWHC 2927 (IPEC) [13]-[56], Hacon J distinguished between
“primary” and “secondary” skills involved in the creation of the work, suggesting that the
contribution of “primary” skills was more likely to give rise to a successful joint authorship
claim.
- Collaboration
For a work of “joint authorship” to arise, there must have been some common design uniting
the authors (see Levy v Rutley (1871) LR 6 CP – “a joint labouring in furtherance of a
common design”). There is no requirement of an intention to create a work of joint
authorship – see Beckingham v. Hodgens [2003] EWCA 143.
For an illustration of this requirement, see Brighton v Jones [2004] EMLR 507.
- Contributions not distinct
The requirement that contributions should not be “distinct” means that, for example, a book
made up of chapters written by different individual authors will not constitute a work of joint
authorship under the statute – rather, it will comprise a collection of separate, individual
copyright works
Unknown authorship
- A work is of “unknown authorship” where the identity of the author is unknown or, in the case of a
work of joint authorship, the identity of none of the authors is known (see CDPA ss 9(4)- (5)). In the
case of such works, special rules apply to the term of copyright (see s 12(3)) and a presumption of
ownership of copyright arises (s 104(4)).
First ownership
Basic rule - “The author of a work is the first owner of any copyright in it, . . .” (CDPA s.11(1))
- It had often been assumed that the copyright Directives have made relatively little impact on the
subject of authorship/ownership (for specific intervention, see Software Directive, Art 2(3); Database
Directive, Art 4). However, in (C-277/10) Luksan v van der Let, the CJEU held that an Austrian law
vesting exclusive rights in a cinematographic work in the producer, rather then the director, violated
the Information Society Directive (even though that Directive did not explicitly indicate the identity of
a cinematographic work’s author). The Court read across provisions stipulating the authorship of
cinematographic works from other Directives (which were not directly at issue in the case). The Court
