#1684 - Copyright Qualifying Person - Intellectual Property Law

2. Qualifying Person

A work will qualify for copyright protection if, at the material time, the author was a qualifying person. A qualifying person is either:

1. A British citizen;

2. An individual domiciled or resident in the UK or another country to which the relevant provisions of this Part extend;

3. A body incorporated under the law of a part of the UK or of another country to which the relevant provisions of this Part extend or are applied.

S.154(4): ‘Material time’ for literary, dramatic, or artistic works is, for unpublished works, when the work was made and, for published works, when the work was first published.

S.154(5): In the case of sound recordings, films and broadcasts the ‘material time’ is when the work was made. For typological arrangements it is when the edition was first published.

Authorship

‘Author’: S.9(1) CDPA stipulates that it is ‘the person who creates the work’. Clear link between authorship and originality – person who contributes relevant skill and labour will be the person who creates the work, thus its author.

S.9(2) CDPA: ‘Author’ means the producer for sound recordings, the person making the broadcast in broadcasts, the publisher in the case of typological arrangements, and the principal director and producer in the case of films.

The significance of authorship:

• A ‘qualifying person’ is linked to authorship in the case of literary, dramatic, musical and artistic works.

• For literary, dramatic, musical and artistic works, the term of protection is calculated post mortem auctoris; i.e. 70 years after the death of the author.

• The author of a work will be its first owner according to s.11(1) CDPA.

Elaboration upon who can be a ‘producer’:

• Bamgboye v. Reed [2004] EMLR 5;

Facts: Disputed ownership of copyright in musical work and sound recording of a song called ‘Bouncing Flow’. C worked as a trainee tape operator and sound engineer at the recording studio and had contributed drum and cymbal effects. After track was recorded D used equipment at Mr B’s home to further work on and master the recording.

Decision: Williamson QC held that Mr B was a joint author of the musical work, but in relation to the sound recording she found that Mr R was the producer. She decided that ‘the real question is who instigated the relevant recording and organised the activity necessary for its making?’ Mr R arranged to get Mr B to make his house and equipment available so Mr R was the producer in ‘substance’ – this was not a joint operation.

Presumptions:

S.104(2)(a) CDPA: In the case of literary, dramatic, musical or artistic works, where a name purporting to be that of the author appears on copies of the work, the person named shall be presumed, until the contrary is proved, to be the author of the work’.

S.104(3) CDPA: Same applies in cases of joint authorship.

• Tate v. Thomas [1921]; A man who thought up some characters, developments and catch phrases was held not to have contributed enough to be a joint author.

• Cummins v. Bond [1927]; A spiritualist made automatic writing from dictation beyond the grave. The spiritualist here was the author because of the skill exercised in her speed. (Also difficult to attribute authorship to one who is dead?)

• Walter v. Lane; Reporter took shorthand report of a speech given; in doing so he exercised sufficient skill for CR to exist in the resulting report. This was a skill as it wasn’t within the knowledge of an ordinary person.

• Cala Homes; A person who orally/with sketches conveys ideas to technical artist will have joint authorship.

• Heptulla; A politician who dictated memoirs and edited a transcript had joint authorship.

• Brighton v. Thomas; Suggestions made by a director to a playwright were insufficient to attract authorship. His contributions were to the theatrical presentation and interpretation.

S.105(1)(a) CDPA: If copies of a sound recording as issued to the public bear a label or other mark stating that a named person is the owner of the copyright in the recording, this shall be presumed to be correct until proved otherwise. NB. In case of photos the author is the person who publishes, not when developed.

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Joint Authorship

S.10(1) CDPA defines ‘works of joint authorship’ as: ‘A work produced by the collaboration of two or more authors in which the contribution of each is not distinct from that of the other author or authors’.

S.10(1A) CDPA: Films are deemed to be works of joint authorship between the producer and principal director unless these two persons are the same.

Significance of joint authorship:

• S.12(8): The term of protection will be calculated according to 70 years after the death of the last remaining author.

• S.11(1): Joint authorship will lead to joint ownership so this will constrain the behaviour of all co-owners.

• *Robin Ray v. Classic FM [1998];

Facts: He was famous and entered into a consultancy agreement with Classic FM and agreed to advise them on playlists. Informal agreement. Lightman J said there was no agreement. Classic FM wanted to use an automated music selection system – so you could just find relevant songs. To do this all tracks have to be categorised so the computer knows what to look for – Ray submitted detailed categorisation proposals, including one based on popularity. Used skill and judgment. A construction was agreed and categorised 50,000 tracks supplying info required. That info was incorporated by Classic FM into a database and used it. So successful there was a proposal to licence this to foreign radio stations. Ray objected but classic FM went ahead. Ray argued he had copyright and his consent had been implicitly limited to use in the UK. Classic FM argued it was joint author of doc and catalogue so it was entitled to exploit work without his consent.

Decision: Lightman J: ‘It is unnecessary to consider whether the use made of the copyright material did any damage, for it is quite clear that, even if the D was joint author of the five documents and the catalogue, joint ownership could not without the consent of the plaintiff justify the making of copies for the purpose of exploitation of the copyright abroad’. = Judge rejected D’s submission that, ‘D as joint owner is free to do a restricted act so long as he accounts to the plaintiff as its joint owner for a share of the profits, or that the right of the plaintiff is limited to claiming an account: the plaintiff is entitled to sue for infringement, claiming damages and an injunction’. Sole authorship.

• Brighton v. Jones [2004];

Facts: Involved a dispute about copyright in the play, ‘Stones in His Pockets’. D had written the script of the play in 1996 and had been listed as the sole author on publicity material, whilst the claimant had directed the first production of the play. D rewrote elements of the script in 1999 and exploited it in various ways, achieving major commercial success. Claimant alleged that she was joint author, and therefore joint owner, of the play as a result of contribution made during rehearsals of the 1996 version, including suggested changes to the plot and diagram.

Decision: Claimant was not the joint author because 100% of the dialogue was composed by D, C’s contributions to the plot were not significant enough and her contributions appear to be to the ‘interpretation and theatrical presentation of the dramatic work’ rather than contributions to the actual creation of the work.

Principles: Park J identified three principles essential to joint authorship:

1. The contribution must be ‘significant’, although it does not need to be equal in magnitude to that of the other joint author(s).

2. The contribution must be a contribution towards the creation of the work (i.e. the authoring); not one of a different kind.

3. A person can become joint owner even if he has not himself put pen to paper, but someone else has done that, effectively writing what the first person has created. E.g. Cala Homes Ltd [1995].

• *Hadley v. Kemp (1999);

Facts: Spandeau Ballet’s music and lyrics for songs written by Kemp. Band broke up and were all sour. Kemp sought to stop his royalties going to band in general. Members argued they were joint author. Argued that contributions were made in the rehearsal studio. One song was ‘True’ and Norman’s saxophone solo – this was the strongest case anyone had. Did the sax solo amount to a sufficient contribution to allow Norman to be regarded as joint author?

Decision: Held not...