Intellectual Property Rights - Copyright

Article written for Interlink International Resources Ltd magazine - March 1999

Go into a shop and buy a pound (oops, half a kilo) of apples; you get what you pay for, and can carry it out of the shop. You have exclusive and sole property rights in those apples - you own them absolutely - you can eat them yourself, share them with your friends, horse or donkey, play cricket with them (once!), or allow them to rot and then throw them away. Do whatever you like with them - and once you've done that, they're gone forever. It's been a long long time since the law laid down the basic frameworks for handling the rights of ownership people can have in physical things.

Intellectual Property Rights, on the other hand, are the way in which the law has responded to the more esoteric things that are the creations of the mind. Copyrights, patents, trade marks, and design rights are all different types of Intellectual Property Rights. In this article I'm going to talk about copyrights.

Where a 'thing of value' which does not have a physical / material existence, then the old rules which arose to govern ownership of physical objects become meaningless. Make a copy of a computer program, and you have something which on the face of it is just as useful as the original. You can’t do that with an apple. If you want to have a society in which those who develop 'things of value' with their minds can have their rights to make money out of them protected, then new rules regulating ownership of those 'things of value' are A Good Thing. The English Courts first recognised the rights we call copyright in the 15th century, shortly after the development of the printing press. Various acts of parliament have refined the nature and extent of copyright through the years, and there is also now an extensive degree of world harmonisation of the rules relating to copyright.

The basic principles are:

• The rights we call copyright arise automatically in, amongst other things, original 'literary, dramatic, musical or artistic works'.
• In the words of the current governing act of parliament, 'literary work…means any work which is written, spoken or sung, and accordingly includes…a computer program…'. [Presumably, on the basis that it is written - the mind begins to boggle at the thought of listening to choirs of redundant Welsh miners singing complex C++ subroutines in A-minor.]
• The rights arise automatically - they do not need to be registered, they simply come into existence alongside the work itself.
• The rights come into existence at the moment the work itself is reduced to some form outside the mind of the creator - generally, when written down or otherwise recorded.
• The rights will last for a finite period of time - nowadays, generally 70 years from the death of the author.
• The sole owner of copyright in a work has the sole right to prevent and control the copying of the work by others.
• Ownership of copyright can be assigned in writing, either partly or wholly.

The first owner of the rights will generally be the author - unless (s)he is creating the works in the course of his/her employment, in which case the employer is the first owner. Here, employment has its normal meaning, so the first owner of copyright in something written by a contractor will generally be his own limited company, which employs him. In conventional contracts of employment, strictly speaking it's not necessary for there to be anything expressly stated about ownership of copyrights - they will belong entirely to the employer at the moment the rights first arise.

In contracts for the hire of computer contractors, if (as is generally the intention) the client is to own the copyright in the work, then it is necessary to make express provision relating to copyright. Generally in such contracts, the contractor's company assigns the entire copyright in any works produced by the contractor to the Client.

Thus the contractor gets paid, the client gets the entire copyright (and thus the sole and exclusive right to benefit from the work the client has paid for), and everyone goes home happy.

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This page was last updated 8th March 1999.

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