It is worth checking that you own the copyright in works which are vital or of importance to your business. The copyright in software created by a developer would be a prime example, but the ownership of copyright can be important for a variety of businesses, from planners to PR agencies.
The range of works protected by copyright is vast, including software, brochures, photographs, images and diagrams to name but a few. The level of originality required to create a new work protected by copyright is relatively low.
Who owns the copyright?
However, the key question is “who will own it”? For copyright works created in the course of an employee’s employment, this is relatively straightforward. Subject to any agreement to the contrary, such works will belong to the employer. A business may want to reinforce this position by including appropriate wording in its contracts of employment.
The position is potentially more difficult with consultants (who are not employees) and contractors. Copyright in works created by consultants and contractors will belong to them. In view of this, it is important for businesses to include in their contracts with consultants and contractors clauses under which the copyright is expressly assigned to the business, with such terms being signed by the consultant or contractor. (An assignment has to be in writing and signed by the person transferring the copyright).
Where the consultant or contractor uses sub-contractors to create copyright works, the consultant or contractor will need to secure the rights from those persons as well – either separate assignments of copyright for a nominal consideration or a clause in the contract with the consultant or contractor requiring them to procure such assignments, so the consultant or contractor can in turn assign the copyright to the business commissioning the work. (The same rules regarding an employer contractor owning copyright in works created by its employees would apply, but the commissioning business may still wish to seek a confirmatory assignment, to make sure no agreement contradicting the rule has been entered into).
If this is not addressed at the beginning of the relationship, it can prove far more difficult (and costly) to obtain an assignment of the copyright later, particularly if the commissioning business does not have an on-going relationship with the creator of the work.
For more information on how Peter James and our Commercial team can assist you, click here.