The Copyright Act confers ownership of copyright on the author. This expression is used both in relation to the traditional forms of copyright protected works by individuals and to proprietorship of the newer economic rights type of copyright.
Copyright may be owned by individuals or corporates. It is a form of property protected by the Constitution. It can be assigned licensed or may pass on death or insolvency.
There may be joint ownership either by transfer or designation by several parties involved in the creation of the work. In some cases where one person formulates some aspects and another person reduces it to writing, joint authorship may be established.
Editorial or a critical input would generally not be sufficient to constitute a claim to joint authorship. A work of joint authorship” is defined as 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.
A film shall be treated as a work of joint authorship unless the producer and the principal director are the same people. A broadcast shall be treated as a work of joint authorship if more than one person makes the broadcast and the contribution of each person is not distinct from that of any of the others involved in making that broadcast.
Controversy may arise as to joint authorship in some cases. For example, a piece of music may be composed by several band members. The input of different persons may vary considerably in terms of creativity skills and labour. Ideally, the matter should be governed by a contract. There may be difficult questions of interpretation in the absence of a written contract.
Several different copyrights may subsist the same work. There will be literary and musical copyright, respectively in the lyrics and music. There may be both traditional works type copyright based on artistic creation and economic or entrepreneurial rights in certain aspects of how it is delivered and dealt with.
The author of work is defined in respect of each class of work.
• Sound recording; the producer;
• Film; the producer and principal director;
• Broadcast or relay of broadcast; the cable program service provider;
• Typographical arrangement of published edition; publisher;
• Computer-generated work, orchestrator
• Database; the maker;
• Photographs; the photographer
Where a work is made in the course of employment, the copyright is presumed to belong to the employer. In many cases, work undertaken outside of hours will not be in the course of employment. However, there will be cases where such work is in the course of employment. Independent work outside employment may have implications under other rules, such as the implied obligation of fidelity and loyalty. In many cases, the position will be governed by a contract of employment.
A person may be treated as an employee in many cases, notwithstanding that he is a director of a company. Many directors have employment contracts.
Where a work, other than a computer program, is made by an author in the course of employment by the proprietor of a newspaper or periodical, the author may use the work for any purpose other than for the purposes of making available that work to newspapers or periodicals, without infringing the copyright in the work.
Contractor / Commissioning
Where copyright work is created by an independent contractor. there will be no presumption that it belongs to another for whom he provides services. However, there may be an express or implied term of the particular contract for services which applies.
Where a work is commissioned, it may be expressed or implied in the contract that the copyright is to belong to the commissioner. Alternatively, the copyright may remain in the author, but the commissioner may have a licence (exclusive or otherwise) to use the work. The terms of the commissioning contract may require that the author holds the work on trust for the commissioner or another.
In the case of photographs and films commissioned for private and domestic purposes, there is a privacy right for the person who commissions the work not to have the work made available to the public. This is subject to certain exceptions.
Copyright is a form of intellectual property. It can be owned, transferred or licensed. It may pass to the owner’s successor on death.
An assignment is an outright transfer of copyright. A licence is consent to use the copyright on terms and conditions, where the ownership of the copyright is retained. A licence may be absolute or partial. A partial assignment may be limited or restricted in some way, for example, in terms of duration or geographical extent. The various elements and rights attaching to copyright may be separated and licensed in any manner as is desired.
An assignment of copyright must be in writing and signed by or with the authority of the assignor. In the absence of writing, it may be possible to rely on an equitable remedy where there is an agreement to assign.
An assignment may be unconditional or subject to conditions. It may be limited to certain geographical areas.
A copyright licence is a contract permitting the use of copyright on terms. It may take place formally by a contract document or by implication. The terms of the contract will define the extent of the licensee’s permitted use. It cannot exceed the scope of the licensor’s rights. An exclusive license permits the licensee to exercise the rights granted, exclusive of all others, including the licensor.
A licence granted by a copyright owner is binding on every successor in title to his or her interest in the copyright, except a purchaser in good faith for valuable consideration and without notice (actual or constructive) of the licence or a person deriving title from such a purchaser.
A prospective owner of the copyright may deal in future copyright and make a licence in relation to it.
The principles of equitable ownership apply to copyright. A person may be the legal owner, while another may be the beneficial owner. The legal owner may hold it on trust voluntarily or because of circumstances and events for another.
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