Copyright is a person’s exclusive legal right over their original creation. An individual’s original creation may, for instance, be a book or article, a piece of music or a dress design. If someone copies a copyrighted creation without permission, the copyright owner can bring a claim for copyright infringement.
A claim for copyright infringement can also be brought by someone who has been granted an exclusive licence to the work by the copyright owner. However, a non-exclusive licensee cannot bring a claim for copyright infringement.
Who is the copyright owner?
The author or creator of the original work, ie. the person who created it, will normally be the first copyright owner. However, if the author or creator is an employee of a company (operating under a contract of employment), and the work was created during the course of their employment, the copyright will automatically belong to the company and not the author/creator. This reflects the vital importance to business organisations of protecting the intellectual property of works, inventions and creations created for and in the course of business.
If there is any dispute between the employer and employee as to who owns the copyright (or other intellectual property), it may sometimes become a question of fact. For example, an employee may not have been contracted to create any intellectual property under their contract of employment, so if they have created something during working hours then the employee will own the intellectual property. Or if an employee created intellectual property at home outside of normal working hours but it was of the type he was contracted to do, the employer will own the copyright.
Where the work is created by a consultant and not an employee, the consultant will be the automatic copyright owner of their work. Because of this, the business will most likely insist on an agreement with a consultant that the copyright, and other intellectual property rights, will automatically belong to the business and not the consultant.
What if there is more than one copyright owner?
In some instances, there may be more than one copyright owner, for example, where two people have jointly created a piece of work. In this case, a joint copyright owner does not have the right to reproduce the work, or grant licences to others to reproduce it, without the consent of the other joint owner(s). However, a joint owner can bring court proceedings for copyright infringement independently of the other.
Ownership of copyright can also be transferred to another party by way of deed of assignment. However, an assignment of copyright will not be legally binding unless it is in writing and signed by or on behalf of the ‘assignor’ (the person who is transferring ownership of their copyright). Once assigned, the assignee can then take proceedings for copyright infringement.
What is an exclusive licensee?
Copyright can also be licensed out to others. An ‘exclusive licensee’ is a person who has been granted an exclusive licence to use the original creator’s work to the exclusion of all others – including the person granting the licence (the original copyright owner).
For an exclusive licence to be binding, it must be in writing and signed by or on behalf of the copyright owner; and must authorise the licensee, to the exclusion of everyone else (including the person granting the licence), to exercise the intellectual property rights which the original copyright owner would otherwise be exercising exclusively.
If an exclusive licensee needs to take legal action for copyright infringement, they must join the copyright owner as a party in the proceedings. If you have any uncertainty about who owns the copyright of a particular work or creation, or about a potential claim for infringement, you should take expert legal advice.