A fundamental question that arises in many disputes is the most obvious: who owns the copyright to the software? Legal ownership and legal advice can in most cases be determined by reference to the fundamental principles of copyright. Determining the first copyright owner is one of the key steps in determining whether a particular form of work under the Act qualifies for protection in the UK. The justification set forth below applies equally to photographs, images, multimedia works, graphic designs, copyright material, and artistic works.

copyright law

The UK Copyright, Designs and Patents Act makes it clear that the first copyright owner of a work is the author of the work. Due to the structure of the law, the author of a work is not necessarily the first copyright holder. The author is the person who created the original protectable elements of the work, or who played a non-trivial role in the creation of the work. Usually this is the person who reduces the idea to material form, but this is not necessarily the case, for example when a person dictates a letter or other material, which is reduced to writing by a stenographer. Copyright belongs to the person dictating the material.

Ownership is qualified by the factual circumstances in which the work was written. Where the copyrighted work is a literary, dramatic, musical, artistic, or motion picture work, and an employee authored the work in the course of his or her employment, the employer is the primary owner of any copyright in the work. work subject to a written agreement to the contrary.

Therefore, if the person made the copyrighted work in the course of their employment, their employer is the primary owner of the copyright. The next step in determining ownership is whether the first owner has assigned the copyright to another legal entity. The generally accepted meaning of employment is a relationship in which the employee has agreed that, in exchange for some form of payment, he will provide his own work and skill in the performance of his services; be subject to the control of another to a degree sufficient to constitute an employer; and the other terms of the contract are not inconsistent with the type of provisions found in employment contracts. If the contract falls within this description, the work must still have been created in the course of employment under that contract.

Software licenses and transfer of copyright

The Law on Copyright, Designs and Patents establishes that copyrights are personal property and are transferable by assignment, testamentary disposition or operation of law. The law is brutally clear regarding copyright transfers:
“A copyright assignment is not effective unless in writing signed by or on behalf of the assignor.”

Thus, if there is no copyright transfer document, there is no transfer of copyright over the acquired work, unless it has been transferred by testamentary disposition (the first owner of the copyright died), or some other circumstance caused ownership in changing the software; for example, the owner was a company and that company went into liquidation or receivership.

Consequences of Copyright Ownership

Most commercial software is created by people working for a software house that has identified a need in the market, and the software is written (that is, created) to penetrate that segment of the market. The software house would be the first copyright owner.

To clarify the importance of this, the corollary to this rationale drawn from the law set forth in the Copyright, Design and Patent Act is as follows: If an independent contractor has been hired to write and supply software for a client (or any other copyrighted work), unless the contract is in writing (or there is some other document dealing with copyright), the copyright cannot be assigned and the independent consultant retains ownership of the copyright From author. Any money paid for the software will probably be considered a license fee to use the software, in the same way as when one buys a book. When you buy a copy of a book, you buy the physical copy of the book and not the copyright that belongs to it, which would otherwise give the buyer the right to print the book commercially.

Exclusive intellectual property rights

Copyright ownership brings with it all the benefits of copyright ownership: the power to prevent others from reproducing the work without the copyright owner’s license.

Legal Notice – Complications and Complexity

However, legal advice, legal problems and disputes are rarely determined in such a simplistic application of the law. Legal advice is complicated by the possibility of co-ownership of copyrighted works, which is assumed for films under the Copyright, Designs and Patents Act. In fact, the profit rights may have increased in equity, so that the person who hired the software house to write the software may have superior rights. One of the clues that may displace the first copyright owner in equity is whether the consultant could reasonably have been expected to exploit the work in its own right. In high value software developments this will rarely be the case. This is only one factor that can be taken into account in the evaluation of the first copyright ownership. The answer is related to the factual matrix of the development project.

Again, other forms of copyrighted works, namely cable shows, broadcasts, and published editions, are treated differently. The sensible advice is to talk to your legal advisor before taking legal action or making an unbearable statement about the property, as every set of facts is different. Make sure the surrounding circumstances do not give rise to an equitable right in the software or other copyrighted work.

Risk management in intellectual property transactions

The risk in transfers of intellectual property is largely managed by contract. Instead of granting what is known as a mere license, which is really a license revocable at will, properly managed transactions with intellectual property deals should involve the granting of a contractual license, in writing. One of the main purposes of these contractual licenses is to avoid the risk of a mere license being involved, where the licensor can terminate the license at will. Legal risk management and obtaining legal advice consist of minimizing risk and maximizing legal certainty. Contractual licenses involve entering into a formal, legally binding agreement that meets the rudimentary requirements of contract law. Namely, that one party has made a reasonably certain offer and the other has accepted it; the parties intend to be bound by the contract; consideration (ie, a promise that has value) moves from both parties. This last requirement in the context of software licenses is usually characterized by the granting of the license by the licensor and the payment of money by the licensee. Such an approach is aimed at avoiding or reducing the possibility of disputes due to the fact that the agreement has been enshrined permanently and in specific terms. Finally, the term of copyright protection is calculated by reference to the author of the copyrighted work, rather than the first owner.