Copyright Ownership

Rights of Copyright Owners

Limitations on the Rights of Owners

If a work is copyrightable, someone owns the copyright. The all-important question is who?

In general, the creator of the work owns the copyright to it. The person who wrote the article, painted the painting, or designed the website is the one who owns the copyright. But there are exceptions to this general rule. If more than one person was involved in the creation of a work, the copyright is owned jointly. If the work was created by an employee of an organization, it may be a work made for hire. Finally, the copyright may have been transferred.

Under the Copyright Act, a joint work is a “work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole” (Section 101). There are two general requirements for a work to be considered a joint work, both of which are indicated in the Copyright Act. First, each contributor must provide copyrightable content to the work, and second, the contributors must have intended to create a joint work. The question of intent may be difficult to determine, especially in a complex project with many contributors, and not surprisingly has been the subject of litigation (see, for example, Aalmuhammed v. Lee).

When a copyright is owned jointly, each owner may exercise any or all of the rights of copyright. An individual owner may use the entire work as he or she wishes and may also grant non-exclusive rights to others, as long as he shares any profits with the joint owners. However, a single owner may not grant an exclusive right to anyone without the consent of all joint owners. Generally, a jointly owned work is protected by copyright for the life of the last surviving author plus seventy years.

A work made for hire is a work created by an employee in the context of his or her employment. The copyright for these works belongs to the employer. Many government documents, for example, are works made for hire. If, on the other hand, a work is created by an independent contractor, then the copyright is probably retained by the creator because independent contractors are not employees.

The question of whether or not a work was created "in the context of employment" can be a difficult one. In some situations, institutional policies or employment agreements which clarify copyright questions like these may be in place. In higher education, the tradition has been to leave copyright with the faculty. While this is unlikely to change much, especially for articles and books authored by faculty, institutions may begin to claim ownership of other kinds of works produced by faculty. One example, probably spurred by the growth of distance education, is instructional material produced by faculty (see Vanderhurst v. Colorado Mountain College District). The issue of ownership of faculty works is addressed by Rodney J. Petersen on his website "Copyown: a Resource on Copyright Ownership for the Higher Education Community".

Copyrights can also be transferred to someone else. This transfer can be a sale, a bequest, or a simple gift; the only requirement is that the transaction be documented in writing and signed by the owner. In higher education, copyrights to journal articles have traditionally been transferred to publishers. This practice has contributed to what many see as a crisis in scholarly publishing, characterized by dramatically increased subscription costs and permission fees (especially for STM journals). The transfer of copyright is negotiable, however, and authors can seek to negotiate more acceptable arrangements. In addition, alternative models, see SPARC and Biomed Central for example, based have developed.