Who Owns Copyright?

AuthorLesley Ellen Harris
ProfessionLawyer, author, and educator
Pages103-121
103
CHAPTER 7
Who Owns Copyright?
Those who follow are always behind.
—A. Y. Jackson
Owning Copyright
Recall from Chapter 2 that every creation has two property rights.
There is a right in the physical property of the creation, and there is
a separate and distinct right in its intangible property. The right in the
physical ownership of a book is separate and distinct from copyright
and, for instance, the right to adapt that book into a  lm. This chap-
ter focuses on the second right—the intangible right—which you now
know is copyright.
The ownership of copyright is important because it determines who
has control over, and who is entitled to remuneration from, that pro-
tected material. The owner, who may or may not also be the author of
a work, is the sole person with the exclusive right to say yes or no to
a particular use of that work. He or she is the one who bene ts from
the exploitation of a copyright-protected work, and is the one to be
contacted in order to obtain permission to use the work. Chapter 9
discusses the rights the Copyright Act provides to owners of copyright-
protected works.
c07.indd 103 21-09-2013 14:30:14
104 Who Owns Copyright?
The General Rule
The general rule of ownership is stated in the Copyright Act as the
following: “Subject to this Act, the author of a work shall be the  rst
owner of the copyright therein.
Who Is the Author of a Work Protected
by Copyright?
According to the general rule of ownership of copyright-protected
works, the author of a work is the work ’s rst owner. This raises the
question, who is the author of a work? There is no one de nite de ni-
tion of “author” in the Act. Court cases have helped interpret the mean-
ing of author in the copyright sense.
According to these cases, the author is the person who creates the
work, or the  rst person to express the idea in a tangible form; for
example, the person who puts the work on paper or otherwise “ xes” it.
A person who writes a book is its author; a person who draws a paint-
ing is its author; a person who composes a musical work is the author
of the song, and a person who designs graphics for a web page is the
author of those graphics. A stenographer, however, would not be con-
sidered an author, although a ghostwr iter probably would be.
In determining the author of a work, remember the general copyright
principle that copyright does not protect ideas but only the expressions
of those ideas. It follows from this principle that the author is not the
person who merely supplies ideas, but the person who expresses those
ideas. However, if two people are jointly writing a screenplay, for exam-
ple, and only one of them is actually putting the ideas in a tangible form
(e.g., on paper), these persons would most likely be considered joint
authors. However, someone who comments, edits, or suggests changes
to a work would not likely be a coauthor of that work, unless the con-
tributions were concrete enough to be a tangible part of the expressed
idea. Also, where an author originally puts down an idea in a rough
form and a second writer rewrites it, these authors would probably be
considered coauthors of the  nished work. The clearer situation is for
c07.indd 104 21-09-2013 14:30:14

To continue reading

Request your trial