Can an employee own the copyright for something produced at work?
Published in: December 2017
It makes sense that in order to own the copyright for a piece of work, you must be the first person to create the work in question. However, there’ll be many people who will produce something either as an employee under a contract of service for an employer, or as part of a newspaper or magazine, then the question of copyright becomes less straight forward.
Employees and copyright
Under the provisions of Pt III s 35(6) of the Copyright Act 1968 (Cth) (the Act), a person who produces work either under a contract of service or apprenticeship as part of their usual duties, the employer will be considered as the owner of the copyright.
When discussion revolves around the production of work under a contract of service, there are two main issues that need to be assessed: Whether the person is working under a contract of service; and whether the work was created by an employee during the course of employment. In trying to make a determination regarding who owns the copyright, the courts will look towards the applicable principles of employment law, as well as considering the facts of the individual case.
However, any work that is produced by an employee as part of their normal duties and under the direction of an employer, the copyright generally rests with the employer under the provisions of s 35(6) of the Act.
Who owns the copyright of a work produced for either a newspaper or magazine?
The question of copyright ownership is a little less straightforward when an employee is working for a newspaper, magazine or periodical, under s 35(4) of the Act, the copyright is divided between the publishing company and the author.
Furthermore, any literary, dramatic or artistic work created during the person’s course of employment and under a contract of service, and the work is intended to be used in either a newspaper, magazine or periodical, the author owns the copyright for the work if it is reproduced in a book or any hardcopy reproduction either in a newspaper, magazine, or periodical:
“(4) If a literary, dramatic or artistic work:
(a) is made by the author under the terms of his or her employment by the proprietor of a newspaper, magazine or similar periodical under a contract of service or apprenticeship; and
(b) is so made for the purpose of inclusion in a newspaper, magazine or similar periodical;
the following paragraphs apply:
(c) the author is the owner of the copyright only in so far as the copyright relates to:
(i) reproduction of the work for the purpose of inclusion in a book; or
(ii) reproduction of the work in the form of a hard copy facsimile (other than a hard copy facsimile made as part of a process of transmission) made from a paper edition of, or from another hard copy facsimile made from a paper edition of, an issue of the newspaper, magazine or similar periodical, but not including reproduction by the proprietor for a purpose connected with the publication of the newspaper, magazine or similar periodical;”
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