Section 18 of the Copyright and Neighbouring Rights Act 2000 allocates the economic rights at the moment of creation.
Section 18(1) — the author owns it
Subject to this section, the original owner of the economic rights in a work is the author who has created the work.
“Author” is defined in section 2 as the person who has created the work. Note that “person” includes a corporation — but a corporation cannot itself create; it takes ownership through one of the exceptions below, or by assignment.
Section 18 is headed “Original ownership of economic rights”, and that is all it allocates. The moral rights in section 7 belong to the author and, under section 7(2), apply whether or not a person no longer owns the rights in the work. An employer or producer who takes the economic rights under section 18 does not take the moral rights with them.
Section 18(2) — works of joint authorship
The co-authors are the original owners of the economic rights — unless the work consists of parts that can be used separately and the author of each part can be identified, in which case the author of each part is the original owner of the economic rights in the part that he created.
Where contributions are inseparable — two people writing a song together, line by line — the co-authors own the whole jointly, and each needs the other’s agreement to exploit it.
Where the parts can be used separately and each author identified — a book of essays by named contributors, a song with words by one person and music by another — each author owns their own part outright. That is usually the better outcome commercially, and it can be secured by identifying contributions clearly.
Recall the definition in section 2: a work of joint authorship is one two or more authors contributed to provided the work does not qualify as a collective work. The dividing line is subsection (3).
Section 18(3) — collective works
The person or legal entity at the initiative and under the direction of whom or which the work has been created is the original owner of the economic rights.
Section 2 requires three things: creation by the collective contribution of two or more persons; at the initiative and under the direction of another person or legal entity; and with the understanding that it shall be disclosed under that other’s name and that the identity of the contributing persons shall not be indicated.
An encyclopaedia, a directory, a corporate report compiled from unnamed contributions, an anonymous house-produced manual — these are collective works. A book of named essays is not; the contributors are identified, so it is a work of joint authorship or a collection under section 4(1)(b)(ii).
Note the interaction with duration: a collective work is protected for 50 years from making, availability or publication, whichever is last (s 17(3)) — unless it is a work of applied art, in which case 25 years from making.
Section 18(4) — works made by employees
In respect of a work created by an author employed by a person or legal entity in the course of his employment, the original owner of the economic rights shall be the employer — unless otherwise provided under a written agreement.
“Employed” means an employment relationship, not any engagement to do work. A person engaged under a contract for services — a freelance designer, an outside consultant, a commissioned photographer — is not an employee, and section 18(4) does not apply. They own the copyright unless they assign it.
“In the course of his employment” limits the transfer to work within the scope of the job. A software developer’s employer owns the code written for the employer’s product; it does not own a novel written at home.
“Unless otherwise provided under a written agreement” allows the default to be reversed — but only in writing. An employee who wants to keep copyright in what they create at work must get it in the contract.
For anyone commissioning work, the lesson is direct: there is no commissioning rule in section 18. Take an express written assignment under section 20, signed by both parties, together with a properly specified moral rights waiver under section 7(4) and (5).
Section 18(5) — audiovisual works
(a) The original owner of the economic rights is the producer — unless otherwise provided under a written agreement; and
(b) the co-authors of the audiovisual work and the authors of pre-existing works included in or adapted for its making maintain their economic rights in their contributions or pre-existing works, to the extent that those contributions or works can be the subject of acts covered by their economic rights separately from the audiovisual work.
The producer — defined in section 2 as the person or entity that undertakes the initiative and responsibility for the making — owns the film. But the composer of the score, the author of the novel it was adapted from, and any co-author whose contribution can be exploited separately keep their own rights in those contributions.
So a producer who has cleared the film has not necessarily cleared the soundtrack album, the sheet music, or a sequel based on the novel. Each of those is an act in relation to a separately exploitable contribution, and section 18(5)(b) leaves it with its own author.
Note also section 21(2): once a performer has authorised the incorporation of their performance in an audiovisual fixation, their economic rights under section 21(1) have no further application. Performers in film are in a weaker position than performers on a sound recording.
Working out who owns it
| Situation | First owner | Can it be varied? |
|---|---|---|
| An individual creating on their own account | The author — s 18(1) | By assignment under s 20 |
| Two authors, inseparable contributions | Co-owners — s 18(2) | By agreement |
| Two authors, separately usable identified parts | Each author owns his part — s 18(2) | By agreement |
| Unnamed contributors, directed by a company, issued in its name | The company — s 18(3) | Not expressly |
| Employee, in the course of employment | The employer — s 18(4) | Yes — written agreement |
| Contractor or freelancer | The contractor — s 18(1) | Take a written assignment |
| An audiovisual work | The producer — s 18(5)(a) | Yes — written agreement |
| Score, novel or other separately exploitable contribution to a film | Its own author — s 18(5)(b) | By licence or assignment |
Where ownership is disputed and no document settles it, section 19 supplies the presumptions: the person whose name is indicated as author is presumed to be the author, and for an anonymous or pseudonymous work the named publisher is presumed to represent the author.
Sources
- Copyright and Neighbouring Rights Act 2000 — ss 2, 4, 6, 7, 17–21
Before relying on anything here, read the current text of the Copyright and Neighbouring Rights Act 2000 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.