Ownership in Copyright PDF

TOPIC 7 Ownership in Copyright SAM 2020 1  AUTHORSHIP Why important? For the purpose of the subsistence of copyright work – s.10(1):author is a qualified person. Entitlement of the moral rights under s.25. Who is the author? Nottage v Jackson (1988) 11...

TOPIC 7 Ownership in Copyright SAM 2020 1  AUTHORSHIP Why important? For the purpose of the subsistence of copyright work – s.10(1):author is a qualified person. Entitlement of the moral rights under s.25. Who is the author? Nottage v Jackson (1988) 11 QBD 627. “Authorship involved ‘originating, making, producing, as the inventor… the thing which is to be protected, whether it be… or a photograph’. Brett MR stated that it was the person was most nearly the effective cause of the photograph.” Creative Purpose Sdn. Bhd v Integrated Trans Corp Sdn. Bhd 2 MLJ 429. SAM 2020 2  AUTHORSHIP S.3: “author” , in relation to- (a) Literary works, means the writer or the maker of the works; (b) Musical works, means the composer; (c) Artistic works other than photograph, means the artist; (d) Photographs, means the person by whom the arrangement for the taking of the photograph were undertaken; (e) Films of sound recording, means the person by whom the arrangement for the making of the film or recording were undertaken; (f) Broadcast transmitted from within any country, means (i) the person transmitting the programme, if he has responsibility for the selection of its contents; or (ii) Any person providing the programme who makes with the person transmitting it the arrangements necessary for its transmission; (g) Any other cases, means the person by whom the work was made. SAM 2020 3  Can a non-human be considered as an author? a) Photograph by animal (selfie) - According to s.3, author in relation to (d), Photographs, means the person by whom the arrangement for the taking of the photograph were undertaken. - In Naruto v. Slater, 15-cv-04324-WHO (January 28, 2016), a crested macaque named Naruto took photographs of himself (the “Selfies”) using photographer David John Slater's camera. PETA and Antje Engelhardt filed a complaint on behalf of Naruto in 2015, alleging that Slater, Blurb, Inc. (who published a book by Slater containing the Selfies), and Wildlife Personalities (a UK company that also claimed authorship of the Selfies) violated Naruto’s copyrights by reproducing and selling the photographs for profit. The court ruled that Naruto does not have standing to state a claim under the Copyright Act. To qualify as a work of ‘authorship’ a work must be created by a human being. SAM 2020 4  Can a non-human be considered as an author? b) Work by Computer - Writer Oscar Schwartz revealed how an algorithm can generate poetry capable of fooling people into thinking it was written by an actual human. He applied a test for intelligence (the Turing Test) that says, “if a computer can fool a human 30% of the time, then it was a human and passes the Turing test for intelligence.” Schwartz said he has computer-generated poems that fooled 65% of humans in a study he conducted online. - Direct authorship? - Derivative work? - Work made for hire doctrine? SAM 2020 5  Can a non-human be considered as an author? - If it is consider as computer-generated work, in UK, it may protect. Under section 9(3) Copyright, Design, and Patents Act 1988, the author of a literary, dramatic, musical or artistic work that is computer-generated, is deemed to be the person “by whom the arrangements necessary for the creation of the work are undertaken.” - Our CA 1987 – no such provision unlike in UK, NZ, Ireland, HK, India and South Africa. - Although computers are capable of producing creative, independent works (I.e. Artificial Intelligence), they cannot perform several tasks that a copyright holder must perform to be eligible for protection. SAM 2020 6  Can a non-human be considered as an author? c) Painting by an animal i.e elephant using its trunk - Whether can apply the principle under section s.3, author in relation to (d), Photographs, means the person by whom the arrangement for the taking of the photograph were undertaken. Hence, is it those person who do the arrangement? SAM 2020 7  AUTHORSHIP Joint authorship: S.3 Robin Ray v Classic (1998) 41 IPR 235 The plaintiff had contributed a design for a system of classifying and selecting tracks to be played on a radio station. He did so under a consultancy contract. Held: A Joint authorship claim required that the contributor had made some direct contribution to the words appearing in the eventual published item. A contribution of ideas was insufficient. What is essential is a direct responsibility for what actually appears on the paper. The defendant was to be licensed to use the copyright database, but only as was foreseen within the original arrangement. Presumptions of authorship; S.26(4)(a) Creative Purpose Sdn. Bhd. v Integrated Trans Corp Sdn. Bhd 2 MLJ 429 The author generally refers to the creator of the work while the owner is the person who is entitled to control the doing of the various restricted acts. The author and owner of a copyright may not necessarily be the same person. Anonymous/pseudonymous works:S.26(4)(b),(c) SAM 2020 8  OWNERSHIP S.26(1);…author as the first owner Single and co-ownership S.27(5): Persons shall be deemed to be co-owners if they share a joint interest in the whole or any part of a copyright. S.27(4): An assignment or license granted by one copyright owner shall have effect as if the assignment or licence is also granted by his co-owner or co-owners and subject to any agreement between the co-owners, fees received by any of the owners shall be divided equally between all the co-owners. S.26(2), 27(3), 27(6). Licence means a lawfully granted licence in writing, permitting the doing of an act controlled by copyright SAM 2020 9  Commissioned work OWNERSHIP Plix Products Ltd v Frank M Winstone (Merchants) & Ors FSR 63. S.26(2): where a work (a) Is commissioned by a person who is not the author’s employer under a contract of service or apprenticeship; or (b) Not having been so commissioned, is made in the course of the author’s employment, the CR shall be deemed to be transferred to the person who commissioned the work or the author’s employer, subject to any agreement between the parties excluding or limiting such transfer. Stephenson, Jordan and Harrison Ltd v MacDonald & Evans (1952) 69 RPC 10. Lord Evershed MR: “The respondent’s duties would include research and teaching, thus he could not be ordered to write books, the activity not forming an integral part of his job, but merely accessory to it.” Abernethy v.Hutchinson (1825) 47 E.R 1313 An application was made to restrain the Defendants from publishing, in ‘The Lancet,’ Mr Abernethy’s Lectures, which had been delivered extemporal. Lord Eldon, at first, refused the application; but afterward granted an injunction, in the ground that there was an implied contract between him and the parties who attended his Lectures, that they should not publish them. Berjasa Information System Sdn. Bhd. v Tan Gaik Leong (t/a Juruukur Berjasa) & Anor 1 MLJ 808 “copyright ownership on the plaintiffs, a corporate entity.” SAM 2020 10  OWNERSHIP Dealings with a work: s 27(1) S.27(1): Subject to this section, copyright shall be transferable by assignment, testamentary disposition, or by operation of law as movable property S.27(2)-(7) SAM 2020 11  DURATION OF PROTECTION Calculation based on 3 things; The life of the author The date of first publication The date of the making of the work S.17(1): literary, musical and artistic – author’s life + 50 years after the death; s. 17(3) – anonymous or pseudonym is 50 years after first published; s.17(4)- joint authorship – author who died last. S.18: published editions – 50 years after the year it was first published. S.19: sound recording – 50 years after the year of fixation S.20: broadcast – 50 years after the year it was first made S.22: film – 50 years after the year it was first made available to the public or made, whichever is the latest. SAM 2020 12  EXCLUSIVE RIGHTS:S.13(1) Copyright in a literary, musical or artistic work, a film, a sound recording or a derivative work shall be the exclusive right to control in Malaysia: (a) The reproduction in any material form; (aa) The communication to the public (b) The performance, showing or playing to the public; (e) The distribution of copies to the public by sale or other transfer of ownership; and (f) The commercial rental to the public of the whole work or a substantial part thereof, either in its original or derivative form provided that— (A) the exclusive right to control the distribution of copies refer only to the act of putting into circulation copies not previously put into circulation in Malaysia and not to any subsequent distribution of those copies or any subsequent importation of those copies into Malaysia; and (B) the exclusive right to control commercial rental in relation to films shall only apply when such commercial rental has led to widespread copying of such work materially impairing the exclusive right of reproduction. 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