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This post will take a look at what the legal situation is when an employee, in the course of their employment, creates a work which may be subject to copyright. The principal question is “who owns the copyright” but we’ll also take a look at what defines a copyrighted work, and what types of copyrighted work there can be. We’ll also take a look at a worked example to highlight commonplace issues that arise in this context.

What is copyright?

Copyright is a property right, which is protected in the UK by virtue of the Copyright, Designs and Patents Act 1988 (“CDPA 1988”) (Flint, Fitzpatrick & Thorne, 2006). It is not a right in novelty of ideas but is based on the right of an author, artist or composer to prevent another person copying an original work. Copyright therefore applies to expressions and not to ideas, procedures, methods of operation or mathematic concepts.

What types of copyright are there?

Copyright only subsists in material that falls within the following categories:

  1. Literary works
  2. Dramatic works
  3. Musical works
  4. Artistic works
  5. Sound recordings
  6. Films
  7. Broadcasts
  8. The typographical arrangement of publications

Literary, dramatic, musical or artistic works (“LDMA” works) must meet the criteria specified below to be subject to copyright.

What defines an LDMA copyrighted work?

To attract the protection of copyright, a work must be:

  • Original
  • Created by (at least) a minimum of effort
  • Recorded

To be original, an author must have applied his own skill, judgment and individual effort to the work.

The “minimum threshold of effort” test is meant to prevent the wholesale copying of copyrighted works – authors of new works must apply at least a minimum amount of effort to the works they have produced to entitle these works to receive copyright protection. The threshold applied to literary works is particularly low.

Under s.3(2) CPDA 1988 the work must be recorded to attract copyright protection, unless it is an artistic work (although some degree of performance is required in this instance). It cannot simply subsist in an idea.

What happens if I create something at work? Who owns the work?

If an employee creates a work in the course of their employment then the first thing they should do is look at their contract of employment to determine whether there is an express agreement as to what happens in these circumstances. If there is no express agreement (in the contract of employment or otherwise) then under s.11(2) CPDA 1988 there is an implied term in the contract that the employer is the owner. This therefore means that the employer would be entitled to ownership of any and all creations of the employee.

However, if a worker or employee has been commissioned to create a work then the author has ownership rights to the work unless there is an agreement that the work is licensed or assigned to the person commissioning the work.

Worked example

Alan is employed by a large company (“Big Film Group”) that deals with film recording and distribution. He has an idea for a mobile phone “app” which is related to film at work and spends some time working on the idea. He doesn’t tell his line manager about the work because he wants to keep the project relatively secret until he’s finalised his project. After a couple of weeks Alan has a prototype app ready and is thinking about engaging the services of an application developer to help him put the “app” idea on the market. However, Alan mistakenly copies his manager (Ben) into an email to the application developer. Ben is unhappy that he hasn’t been informed about this idea and is concerned that Alan has been working on the idea whilst at work. Ben further believes that Big Film Group owns the copyright in the work, not Ben.

There is no express agreement in Alan’s contract as to the ownership status of works created in the course of employment. Alan works in film and has created the work in the course of his employment and it is therefore arguable that the implied term under s.11(2) CPDA 1988 applies – Big Film Group would therefore probably be the owner of the copyright.

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