Copyright is the exclusive right to copy the whole or a substantial part of artistic, dramatic, literary and musical works, sound recordings, films and broadcasts. Very importantly, the author (or creator) of the work is the first owner of copyright in it. However, when the authors of the copyrighted works, subject to any agreement to the contrary, are employed under a contract of employment by an employer, then the copyright in the works vests in the employer.

For works, such as sound recordings, films or broadcasts, for which the authors are the producer, the producer and principal director and the person making the broadcast, an express assignment must be included in the employment contract. Assignments must be in writing, signed by the assignor (i.e. the author of the the work) and can relate to future copyrights in works not yet created provided that the relevant wording is used.

Employees 

• Is the author in fact an employee? And
• If so, was the work created in the course of employment?

• the degree of control being exercised,
• the provision of tools or equipment,
• entitlement to holidays,
• sick pay and
• the tax arrangements.

  Having established that, the creator is an employee, in order to benefit from the statutory ownership provisions, the employer must show that, the work was created “in course of [the employee’s] employment”.

So, careful consideration must be given how this is defined in the contract of employment, including part-time, working from home etc. 

Consultants

As with all non-employees, will by default own the copyright in the works they create during the consultancy. This applies even if they have been expressly commissioned to do the work.

So, for example, freelance photographers, portrait artists and consultant computer programmers will all be the first owners of their works, in preference to the person paying for their services. If this is not desired, then an assignment of the copyright must be put in place and, in event, the terms and scope of any licence should be clearly defined. As an assignment of future works, the best place to deal with it, is prospectively in the letter or terms of engagement.

In addition to copyright, certain “moral” rights arise in favour of the creators of most copyright protected works. The moral rights include the right to be recognised as the creator of the works (referred to as a paternity right), for the works not to be changed (referred to as an integrity right).

Even if an employer or commissioner of a work owns its copyright, it cannot take an assignment of the creator’s moral rights in the work, since they are personal and non-assignable. Moral rights, however, can be waived, if the waiver is recorded in writing and signed by the owner of the moral right.The only exception is in relation to a computer program, since computer programs or computer generated works are not subject to paternity or integrity moral rights.