UNIVERSITY OF LUSAKA

SCHOOL
L340 – IP LAW
UNIT 5: AUTHORSHIP & OWNERSHIP OF
COPYRIGHT
George Mpundu kanja
 Structure of Presentation
• Introduction
• Authorship
• Anonymous or Unknown Authorship
• Joint Authorship
• Ownership
• Employee’s Work
• Commissioned Work
• Joint Ownership
• Anonymous Ownership
 Introduction

• Authorship and ownership are, in relation to

copyright, two distinct concepts, each of which
attracts its own peculiar rights, namely the author
having moral rights and the owner of the copyright
possessing economic rights.
• Sometimes, the author of a work will also be the
owner or initial beneficiary of the copyright in the
work, but this is not always so and many works
have separate authors and owners as far as
copyright is concerned.
 Introduction

• Ownership flows from authorship.

• The person who creates the work is normally
the first owner of the copyright in the work,
provided that he has not created the work in
the course of employment in which case his
employer will be the first owner of the
copyright.
 Introduction

• The owner of the copyright in a work may decide to

exploit the work by the use of one or more contractual
methods.
• He may grant a licence to allow another person to carry
out certain acts in relation to the work, for example,
making copies, in which case he retains the ownership in
the copyright.
• The owner may also assign the copyright to another
person, that is, transfer the ownership of the copyright to
a new owner, thereby surrendering the economic rights
in the work.
 Introduction

• A third party can, under copyright law, carry

out certain acts in relation to the whole or a
part of a work protected by copyright
without the permission of the owner of the
copyright in the work and without infringing
the copyright in the work, for example by
performing one of the acts falling within the
fair dealing provisions or because the act is
not restricted by the copyright.
 Authorship

• The author of the work is the person or the individual

who creates it.
• Thus the composer will be the author of the musical
work, the writer of literary work such as a novel will its
author, the writer of the script for a play will the author,
the sculptor will be the author of a sculpture and the
photographer will be the author of a photograph.
• Similarly, the author of the compilation is the person
who gathers or organizes the material contained within
it and who selects, orders and arranges that material.
 Authorship

• As regards related rights or derivative works namely sound

recording, audiovisual or films and performances, Copyright
and Performance Rights Act also defines who is considered as
the author of the said works.
• Therefore under section 2 the author of a sound recording work
is the person who causes the recording to be made.
• This will normally be a phonogram or sound recording
producer, who can be an individual or a legal entity,
responsible for making the arrangements for the whole
recording process from the studio recording to the
achievement of the final form of the recording as distributed to
the public.
 Authorship

• Very often key personnel such as artistic

directors, sound engineers and editors, will be
employees of the entity responsible for the
production, and such individual rights will
normally pass to the employer by virtue of the
employment relationship.
• The individual who supervises and assists in
the co-ordination of a sound recording process
is known as sound recording director.
 Authorship

• Similarly, the author of the audiovisual work or

film is the person who causes the audiovisual
work or film to be made or created.
• The persons who are taken to be authors for an
audiovisual work or film are the principal
director, the author of the screenplay, the
author of the dialogue, and the composer of the
music specially created for and used in the film.
 Authorship

• As regards broadcast the author is the person

who is responsible for the contents of the
broadcast and for arranging for its
transmission.
• In case of the cable programme the author is
the person who is responsible for including
the cable programme in the cable programme
service by which it is transmitted.
 Authorship

• The publisher of the edition of the typographical arrangement

of a published edition is considered to be its author.
• If a work is a computer-generated literary, dramatic, musical or
artistic work, that is, generated by computer in circumstances
such that there is no human author, the author is deemed to be
the person by whom the arrangements necessary for the
creation of the work are undertaken, a formula similar to that of
sound recording, audiovisual work or films.
• In relation to other copyright work, not mentioned above, the
author of that work shall be the individual who created the
work.
 Anonymous or Unknown Authorship

• The Copyright and Performance Rights Act

recognizes that the identity of the author may
not always be known.
• A work is of ‘unknown authorship’ if the identity
of none of the authors is known meaning that it
is not possible for a person to ascertain the
identity of the author by reasonable inquiry.
• The Act does not specify which person
undertakes this reasonable inquiry.
 Anonymous or Unknown Authorship

• A work may be pseudonymous, that is the

author of the work does not wish his identity
to be disclosed or the author is identified
under a fictitious name.
 Joint Authorship

• The Copyright and Performance Rights Act

recognizes that in certain instances two or more
authors may collaborate or pool their efforts to
produce a work, in which case the work has one
copyright which the authors co-own jointly in equal
shares, unless there is a contrary agreement.
• Collaboration between two or more persons will
result in a work of joint authorship only if their
respective contributions to the finished work are
not distinct from each other.
 Joint Authorship

• That is, the work cannot be broken down so that

each author’s contribution can be separately
identified.
• Therefore, an abstract painting, created by two
painters, depicting a woman carrying a baby on
her back, would be a work of joint authorship.
• If ten people write a book and each one writes
on distinct topic, is that book a joint authorship?
 Joint Authorship

• On the other hand, however, a song where one person has written
the music and another has written the words is not a work of
joint authorship, neither is a book comprising separate chapters
written by different authors.
• In the latter case, the person writing the music will be the author
of the musical work while the person writing the lyrics will be the
author of those lyrics, as a literary work; and in the case of a book
each person involved will be the author of his own distinct work.
• Two copyrights will exist in the song, each having different
authors and the duration of the copyright in the music and the
lyrics will differ according to the dates when the composer and
lyricist die.
 Joint Authorship

• Joint authorship is therefore defined as : “a

work produced by the collaboration of two or
more authors in which the contribution of
each author is not distinct from that of the
other author or authors.
 Joint Authorship

• In the case of Ray v Classic FM plc, the court in

interpreting the definition of joint authorship stated as
follows:
• A joint author is … a person
• (1) who collaborates with another author in the
production of a work;
• (2) who (as an author) provides a significant creative
input; and
• (3) whose contribution is not distinct from that of the
other author.  
 Ownership

• The general principle concerning ownership, in

relation to copyright, is that the author of a work
shall be the first owner or beneficiary of the
copyright which subsists in the work.
• Therefore, a composer will be the first owner of the
musical work, a writer of the script for a play will
the first owner of the script, a sculptor will be the
first owner of the sculpture and the photographer
will be the first owner of the photograph.
 Ownership

• There are, however, some exceptions to this general rule.

• Where a literary, dramatic, musical or artistic work is
made by an employee in the course of his employment,
his employer is always the first owner of the copyright
subsisting in the work.
• Other exceptions relate to the State copyright. Under
section 12(2) of the Copyright and Performances Act, the
Government of Zambia is the first owner of the
copyright for the work that is produced by a public
officer or its employee in the course of his employment.
 Employee’s Work

• Section 10(3) (a) provides that where a work, other

than a broadcast or a cable programme, is made by
the author in the course of his employment the
employer shall be the first owner of the copyright.
• The Act however does not define the meaning of “in
the course of employment”.
• The phrase ‘in the course of employment’ raises
concerns and difficulties in some situations as
regards who is the first owner of copyright in the
work.  
 Employee’s Work

• There are many circumstances where it will be

obvious that the work has been made by the
employee in the course of his employment
for example, where a lecture employed by
the University to teach, research and publish
in economics, during his normal working and
using the University facilities writes a text
book on economics.
 Employee’s Work

• However, difficulties arise if the employee has created

the work in his own time, whether or not he was using
his employer’s facilities, or if the nature of the work is
not that which the employee is normally paid to create.
• A good example, would be where a person employed as
a tax driver writes a book on his experience as a tax
driver.
• He would be the first owner of the copyright in the
literary work because he is employed as a tax driver
and not as an author of a literary work.
 Employee’s Work

• The situation changes if the employee is

employed under a contract with a very wide job
description, for instance, as a research and
development engineer, and prepares a copyright
work which is useful to his employer’s business.
• The copyright in that work will most likely belong
to his employer, even if the employee created
the work on his own initiative and outside
normal working hours.
 Employee’s Work

• A situation may be made further complex where the

employee’s formal job description no longer
completely and accurately describe the employee’s
duties or actual type of work carried out by the
employee.
• A basic test is whether the skill, effort and judgment
expended by the employee on creating the work
are part of the employee’s normal duties, express
or implied, or within any special duties assigned to
him by the employer.
 Employee’s Work

• If the answer is ‘no’, then the employee and

not the employer will be the first owner of
the copyright in the work even if he has used
his employer’s facilities or assistance.
 Employee’s Work

• In Stephenson Jordan & Harrison Ltd v MacDonald, an

employed accountant gave some lectures which he later
incorporated into a book.
• It was held that even though his employer provided
secretarial help, the copyright in the lectures belonged to
the accountant because he was employed as an
accountant to advise clients and not to deliver public
lectures.
• However, part of the book was based on a report that the
accountant had written for a client of his employer and
the copyright in this part of belonged to his employer.
 Commissioned Work

• Section 10(3)(b) provides that where a work, other

than broadcast or a cable programme, is made by
the author on the commission of some other
person, the person who commissioned the work
shall be the first owner of the copyright.
• Thus a person who for private and domestic
purposes commissions the taking of a photograph
or the making of a film has, where copyright
subsists in the resulting work, the right not to have
the work publicly exhibited.
 Commissioned Work

• In Community for Creative Non-Violence v Reid the

plaintiff was a non-profit association dedicated to
relieving the plight of homeless people. It commissioned
a sculpture from the defendant artist to publicize its
cause. It paid the defendant $15,000 for work and
materials, he donating his time. A dispute later arose
over who owned the copyright of the work entitled
‘third World America”. The plaintiff claimed that the
defendant was its employee and that it therefore owned
the copyright. The Court found for the defendant.
 Commissioned Work

• Justice Marshal for the Court stated:

• The defendant, Reid was not an employee of the plaintiff, CCNV
but an independent contractor. … True, CCNV members
directed enough of Reid’s work to ensure that he produced a
sculpture that met their specifications. … But the extent of
control the hiring party exercises over the details of the product
is not dispositive. Indeed, all the other circumstances weigh
heavily against finding an employment relationship. Reid is a
sculptor, a skilled occupation. Reid supplied his own tools. He
worked in his own studio in Baltimore, making daily supervision
of his activities from Washington practically impossible.
 Commissioned Work

• Reid was retained for less than two months, a relatively

short period of time. During and after this time, CCNV
had no right to assign additional projects to Reid. Apart
from the deadline for completing the sculpture, Reid had
absolute freedom to decide when and how long to work.
CCNV paid Reid $15,000, a sum dependent on
“completion of a specific job, a method by which
independent contractors are often compensated.” … Reid
had total discretion in hiring and paying assistants.
“Creating sculptures was hardly ‘regular business’ for
CCNV.”
 JOINT OWNERSHIP

• It is possible that there are two or more joint owners of

the copyright in a work if it is a work of joint authorship.
• If that is the case then the two authors will own the work
as tenants in common and not joint tenants.
• This means that each owner’s rights accruing under the
copyright in the work are separate from the others and
as such can assign his rights without requiring the
consent of the other owners and on his death, his rights
will pass, as part of his estate, to his personal
representative.
 JOINT OWNERSHIP

• However, one co-owner of the copyright may

not perform or authorize infringing acts to be
done in relation to the work without the
consent of his co-owners.
 ANONYMOUS

• As regards an anonymous work, where the

identity of the author is not known, would
lead to an unknown owner of the copyright
in the work.
• This would inhibit the commercial
exploitation of the work and as such would
be undesirable more especially if the work is
very important and of commercial value.
 ANONYMOUS

• Hence the presumption that the publisher of

an anonymous work is the owner of the
copyright in the work at the time of the
publication unless the contrary is proved,
provided that the work qualifies for
protection by reason of the country of first
publication and the name of the publisher
appears on copies of the work as first
published
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