First Ownership of Copyright and Copyright in Commissioned Works
Determining the owner of copyright in a work is a fundamental step that must be taken, because the rights conferred by copyright can only be exercised by a person in whom copyright is vested. The doing of any of the acts protected by copyright without a corresponding right to do them amounts to an infringement of copyright.
The Copyright Act provides clear rules governing copyright ownership. These rules ought to be taken into consideration in the negotiation of contracts and in entering contractual relationships. However, often, contracting parties do not avert their minds to the provision of the law on the ownership of copyright, except when disputes arise.
First Ownership of Copyright The general rule governing the ownership of copyright is as stated in section 10(1) of the Copyright Act. Copyright in every work created or authored by an individual and an incorporated entity is vest initially in the author of the work. For example, the author of a literary work is the person who wrote it, and in the case of photographic work, it is the person who took the photograph. The first ownership of copyright is vested in the person who made the work.
We speak of first ownership of copyright because copyright can subsequently be owned by a person other than the author of the work. In accordance with this rule, where a work is made by a person in the course of his employment as an employee, or where it is a work made pursuant to a contract other than a contract of employment (a commissioned work), copyright will be vested in the author of the work and not the employer or the person who commissioned the work.
So for example, if a construction firm commissions an independent architect to draw a building plan, the copyright in the building plan belongs to the architect and not the construction firm that commissioned the work. Also, if advertising agency employs a person to create adverts, the copyright in the first instance belongs to the employee who created the adverts and not the employer. This position can only be modified by a written contract between the parties.
Thus, copyright in works created in the course of employment or in a commissioned work will vest in the author of the work, unless otherwise stipulated in writing under a contract. Section 10(3) of the Copyright Act creates an exception to the general rule on the first ownership of copyright. This provision splits the first ownership of copyright depending on the purpose for which the work is used or sought to be used. Section 10(3) of the Copyright Act provides:
- that where a literary, artistic or musical work is made by an author in the course of his employment (whether the employment is for a contract of service or apprenticeship), by the proprietor of a media platform, such as a newspaper, magazine or similar periodical ; and
- where the work, in the course of that employment is made for the purpose of publication in a newspaper, magazine or similar periodical, then, in the absence of any agreement to the contrary, the proprietor or employer shall be the first owner of copyright in the work done, ‘in so far as the copyright relates to the publication of the work in any newspaper, magazine or similar periodical’, or the reproduction of the work for it to be published.
This means that where a person is employed or engaged to create any form of literary, artistic or musical work for the purpose of publication in a newspaper, magazine or a similar periodical ( it appears that a blog may be categorised as a similar periodical for the purpose of this section), the first ownership of copyright will be vested in the employer or the person who commissioned the work for the purpose of publication in a newspaper, magazine or similar periodical alone and for no other purpose.
However, where it relates to using the work for any other purpose, the author is the first owner of copyright. This provision will be illustrated with an example. If an author is employed to write short stories for a weekly magazine, first copyright in the short stories written will be vested in the author for the purpose of publishing it in a magazine or newspaper.
However, where the author decides to convert all those short stories written for the magazine into a movie or a song, he can do so, because copyright is vested in him for all other purposes, other than publication in a magazine or newspaper. But if the author decides to publish the same stories in another magazine or newspaper, he will be deemed to have infringed his employer’s copyright.
In the case of works done for government agencies and international organisations, the rule is different. Section 10 (5) of the Copyright Act vests copyright in works done for the government or any of its agencies or international agencies in the government and the agencies and not the authors. It is immaterial that the work was done in the course of employment or as a commissioned work.
The provision of the law on the ownership of copyright can be modified by contract. This means that it is beneficial for a business to negotiate and consequently make clear provisions in a contract with a prospective employee or a contractor for the ownership of copyright, where it would be commercially reasonable for it to own copyright in a work created using its resources.
Certainly, an entrepreneur or business would not want to wake up to the realisation that after all its investments, it has no right or limited rights to its work. Neither will an employee or a contractor be satisfied to know that he has signed away all his rights in a work he created. Negotiations between parties and obtaining professional legal advice before the creation of any work and before the signing of any contract purporting to confer copyright on a person will provide safeguards and result in a mutually beneficial agreement on copyright ownership.