WRITTEN BY Anna Philips
As a general rule, the copyright in works created by an employee in the course of their employment rests with the employer. The Copyright Act 1968 requires two criteria to be met. First, that the individual who created the work is an employee working “under a contract of service” (and not, e.g., an independent contractor), and second, that the work is made “in pursuance of the terms of his or her employment.”
For instance, a legal professional who writes articles about intellectual property law at the instruction of her employer, for the purpose of publishing on the firm’s website, does not own the copyright to the articles she has written. The copyright rests with the employer. By contrast, a legal professional who writes out the contents of an eventually best-selling science fiction novel during lunch breaks while employed at the same firm, likely has sole ownership of the copyright of that novel. The act of writing may have taken place at the firm, but it was not done in the course of employment or as part of the terms of employment.
However, even when an employer owns the copyright in a work created by their employee, it is important to be aware that copyright is separate and distinct from moral rights, and moral rights in a work rest exclusively with its author.
Copyright and moral rights are each one half of a whole set of rights vested in a piece of creative work. Both arise automatically from the creation of the work and do not have to be applied for in order to be in effect. Copyright is concerned with the economic rights and commercial use of a given work, and is grounded in the idea that the author of a work should be able to capitalize on it through its publication or reproduction. Moral rights are the non-economic “personal” rights of an author to have their authorship properly attributed in relation to the work.
The moral rights provisions of the Copyright Act were introduced in 2000 and, in addition to the right of attribution, include the right not to have authorship falsely attributed, and the right to integrity of authorship (meaning, the right not to have the work used in a way that is derogatory to the author’s reputation). These rights only ever vest in the author of a work and they cannot be assigned or otherwise transferred away.
This means that it is possible for an employer to own the copyright to work created by an employee, but not the moral rights. The scope of ‘work’ in this context ranges from text written for a website or a technical manual, to legal advice, to any number of ordinary documents drafted in the course of day-to-day business. Broadly speaking, an employee is entitled to be named as the author of anything they write, regardless of how their employer uses that written material.
There are circumstances where moral rights can present problems for employers or limit the employer in exercising their entitlement to use and profit from a creative work. This can include situations where crediting the author creates difficulties; where the work is part of a larger set of works published under the employer’s name; where the work requires modification in order to be fit for purpose; or where the work is licensed by the employer for use by a third party. This begets the question: if moral rights cannot be assigned, what recourse is left to the employer?
The answer comes in the form of contractual provisions and in the fact that moral rights can be waived. An author is able to consent to what would, without that consent, be a violation of their moral rights. In employment contexts, this is most straightforwardly accomplished through moral rights clauses in employment contracts. These clauses state that the author consents to have their work used without proper attribution, as well as to have the work published under the employer’s name, and modified as necessary or desirable. This is not an assignment of rights in the sense of the employee giving the employer the right to be named as the author – although that is a practical result of the process – it is a renouncement of the entitlement to take legal action for the violation of a moral right.
So what is the moral of this story? It’s that owning copyright in a work is not the same as having carte-blanche to do with it whatever strikes the fancy. The author of a work has inherent moral rights in their work and is able to assert a certain level of control over the use of that work unless those rights are waived. Thoughtfully drafted contractual clauses are a legally enforceable way to address these rights, and should be included in any employment agreements that seek to deal with intellectual property.
Oh, and keep in mind: when we talk about “employers” and “employment”, we mean it – we’re lawyers. We aren’t talking about “contractors”. If you have questions about copyright or moral rights, or if you would like a review of any contracts to ensure that your intellectual property rights are protected, please contact the Business Team at BAL Lawyers.