21.02.18

Copyrighting and the works

Helen Liu
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Copyrighting and the works

Copyright is the intellectual property right which exists in specific categories of works. This intellectual property right is governed by the Copyright Act (“the Act”). The Act sets out the categories of works that can be copyrighted and these works include:

  1. original literary, dramatic, musical or artistic works;
  2. sound recordings, films, broadcasts or cable programme; and
  3. typographical arrangements of published editions.

Literary work means any work other than a dramatic or musical work, which is written, spoken or sung. These include works such as poetry, plays, novels, sermons or computer programs.

Dramatic work includes a work of dances or mimes.

Musical work means a work consisting of music, exclusive of any words or action intended to be sung, spoken or performed with the music (the lyrics). Lyrics are classified as literary works.

Artistic work means:

  1. a graphic work, photograph, sculpture or collage, whether the work is of artistic quality or not;
  2. a building or a model of a building, whether the building or model is of artistic quality or not; or
  3. a work of artistic craftsmanship to which neither (a) or (b) above applies.

Sound recording means:

  1. a recording of sounds from which sounds may be reproduced; or
  2. a recording of the whole or any part of a literary, dramatic or musical work from which sounds reproducing the work or part may be produced, regardless of the medium on which the recording is made or the method by which the sounds are reproduced or produced.

Film means a recording on any medium from which a moving image may by any means be produced.

Copyright does not apply to titles of works by themselves, names, short phrases, slogans, ideas, concepts, processes, principles or procedures, methods or factual information.

Author of a work

The author of a work, means the person who creates it and is the person by whom the arrangements necessary for the creation of the work is undertaken in relation to (a) a literary or dramatic work, the author of the work; (b) a musical work, the composer; (c) an artistic work (other than a photograph), the artist; (d) a photograph, the person taking the photograph; (e) a sound recording or film, the person by whom the arrangements necessary for the making of the recording or film are undertaken; (f) the typographical arrangement of a published edition, the publisher; (g) a broadcast, the person making the broadcast or, in the case of a broadcast which relays another broadcast by reception and immediate retransmission, the person making that other broadcast; (h) a cable programme, the person providing the cable programme service in which the programme is included; (i) a computer-generated literary, dramatic, musical or artistic work, the person by whom the arrangements necessary for the creation of the work are undertaken.

When does protection for Copyright arise?

Once an original work is written or recorded, copyright automatically arises and there is protection under the Act. Unlike other intellectual property rights, copyrights do not necessarily have to be registered for protection to arise. Copyright protection lasts ninety five years for literary, dramatic, musical or artistic works, sound recordings, films, broadcasts and cable programmes and twenty five years for typographical arrangements of editions.

Who owns the Copyright?

The question of who owns a copyright can sometimes be contentious. Such instances can be where employees or contractors create work for an employer. These works can include photographs, or lyrics or musical arrangements used in advertising campaigns. There can be instances where the employee or contractor wishes to use the work for their own benefit outside of their employment or contract of service.

Generally speaking, the author of a work would be considered the owner of a copyright. However, contractual arrangements can be put in place, whereby the author of the work will assign or transfer ownership of the copyright to the work to someone else.

Copyright through employment

In an Employer – Employee relationship or a contract for services, ownership of copyright is not automatically vested with the Employer. Unlike some other jurisdictions, there are court cases that decided that copyright was vested with the author/employee and not automatically with the employer/contractor because the contract governing the relationship did not expressly transfer ownership of the copyright to the employer. Therefore, if the employer intends to retain ownership of the copyright to works created by their employees or contractors, then contracts of employment or services should explicitly state that all works created during course of employment or during the contracting period belongs to the employer or party commissioning the work. If these contracts do not give the employer these rights, then the employee would have to have a separate contract assigning copyright to the employer. Conversely, if a contractor or employee has no intention of giving up their copyright, then they should ensure that they are not assigning copyright ownership to employers in their contracts.

Moral rights

It is important to note that under the Act, the author of a work that is a protected work shall have moral rights in respect of such work, whether or not he is the owner of the copyright in the work. These moral rights include the right to be identified as the author of the work. These rights also include the right to object to derogatory treatment of a work which means any addition to, deletion from, alteration to or adaptation of the work (not being a translation of a literary or dramatic work or an arrangement or transcription of a musical work involving no more than a change of key or register) which amounts to a distortion or mutilation of the work, or is otherwise prejudicial to the honour or reputation of the author or director, as the case may be. These moral rights are non-assignable, which means that the author cannot sell or give away these rights.

Copyright is an important intellectual property right. It is one of the rights that do not have to be registered for protection to arise. However, disputes as to ownership of copyright can arise. Such disputes can end be costly. All parties should discuss and negotiate issues in relation to ownership.

Helen Liu is an Associate at Myers, Fletcher & Gordon, and is a member of the firm’s Commercial Department. Helen may be contacted via Helen.liu@mfg.com.jm or www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.