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Copyright ownership and third party creators

There are numerous reasons why established Intellectual Property (IP) rights are important to businesses. IP rights over works created by third parties can not only help to manage risk, but can also increase the value of your IP portfolio. Further, a clear portfolio of copyright material can satisfy enquiries from potential purchasers and investors regarding business assets and ownership.

Copyright ownership also plays a significant role in the protection of your IP. If you seek to take action against a person for unauthorised reproduction of your work, it must be clear that you own the copyright in the relevant work. Put simply, you cannot protect what you do not own.

Australian copyright law automatically protects:

  • literary works (blogs, novels, screenplays);
  • artistic works (paintings, drawings, photographs);
  • musical works (songs, jingles); and
  • films and sound recordings.

Consider the importance of copyright ownership when contracting third parties to produce your IP. Most businesses use third parties to produce logos, corporate websites, even photographs used in marketing materials. In these cases, does the contractor own the work, or do you? If copyright does belong to you, then how do you obtain it? This may not necessarily be obvious, and it is important to know how copyright works generally, and tailor these principles to your needs. Some basic principles to consider include:

  • The first owner of copyright is generally the author, although exceptions do apply;
  • Payment to third parties for work does not mean that you own copyright;
  • Following on from this, copyright can only be assigned to another in writing, under the Copyright Act;
  • It is far easier to discuss and agree on ‘ownership of copyright’ before a third party create original work for you; and
  • In Australia, copyright is free, automatic and cannot be registered.

You are not entitled to claim copyright ownership merely because you requested original work, and the work was made for you.

It is clear from the above that proper documentation should state that all rights in the work produced belong to the business paying for the work and assign (transfer) all copyright in the work to the company paying for the services.

In the case of employees, the copyright typically remains with the employer without having to specify each time a request for work is made. The exception to this rule is staff journalists, who are considered the owners of copyright for the purposes of reproduction or inclusion of works in a book.

You may also like to consider that there may be non-mutually exclusive rights in the same work. For example, you may have the right to reproduce online, while the author may seek to retain the right to authorise reproduction in a physical form. This may be important when commissioning logos or visual design for your website as opposed to a physical catalogue. Given the potential ambiguity, you should aim to clarify these issues in the documentation governing the assignment of copyright.

In light of the above, it is clear that intellectual property ownership can be a murky subject. If you are currently contracting third parties to produce original works for your business, or if you intend to, a brief discussion with an IP lawyer may save you a lot of trouble down the track. Similarly, an IP lawyer can help in determining what videos, images, logos and other material you own, and how to protect it. Don’t risk losing your copyright, and if in doubt, seek specialist advice.