Whose copyright is it anyway?

Public sector and not-for-profit organisations could be leaving themselves exposed to copyright infringement. Wesley O'Brien explains why.

Whenever your organisation puts together a new report, training DVD, glossy brochure or a website, the artistic, written and music components of that work will be protected by copyright. In the UK, copyright protection arises automatically so there is no need for a formal registration process. It is a valuable right because the law allows the owner of the work to generate income from it by licensing the work to others as well as preventing others from copying it.

In our experience, many public sector and not-for-profit organisations who use, for example, charts or photographs in a report, or music on a training DVD, often realise, too late in the day, that they don’t have the right to use or reproduce those works. This can be risky and may leave your organisation exposed to a claim for copyright infringement brought by the owner of those rights.

It is therefore important to ensure that you know who owns the work before your organisation uses it or exploits it. If your organisation is not the rightful owner of the work, it will, in most circumstances, need permission from the copyright owner who may insist on a license fee. Certain exemptions apply so you should always seek legal advice if you are unsure whether your proposed use of a work will amount to copyright infringement.

Here’s our brief guide to ownership of creative works.

Employees

If a work is created by an employee of your organisation in the course of his or her employment, the organisation (not the employee) will be the owner of the copyright in the work, subject to any terms to the contrary in the employee’s contract of employment. The position is, however, different if the work was created by an employee outside his or her normal duties (for example, at home, and in an area unrelated to the employee’s role) or if the work was created by a contractor under a contract for services.

Commissioned works

If the work is created by a third party, he or she will be the owner of the copyright in the work, not the organisation or person who instructs that person to create the work. This is the case even where the contractor has been paid to create the work. It is therefore important that the issue of copyright is addressed upfront. Your organisation should seek to obtain from the contractor an assignment or license of the copyright in the work before the work is created. If an assignment or license is not obtained, and a dispute later arose, the court would not necessarily imply into the agreement a right for your organisation to exploit the work in the way that you may have intended to do so.

Joint authors

Where a work is created by two or more people or organisations, the work will be a work or joint authorship if the contribution of each author is not distinct from that of the other authors. Licensing or assignment of that work would require the consent of the joint authors.

Wesley O’Brien is a solicitor at Bevan Brittan. He can be contacted by email at This email address is being protected from spambots. You need JavaScript enabled to view it..