Intellectual property rights (often called IP rights) are legal rights that protect creative works, including songs, recordings and images. Just like physical property, intellectual property can be owned, sold, and loaned. Only the owner of the IP rights in the work has the right to do certain things with it. Where the work is used without the permission of the owner of the IP rights, this is unlawful and is known as ‘infringement’.
Creative businesses and individuals need to be aware of the IP rights that are relevant to them, and how to handle those rights in a way that’s fair. IP rights protect the particular way in which a creative idea has been expressed – but they don’t protect basic ideas themselves (nobody can own an idea).
IP rights and the Incubator Fund
Youth Music’s Incubator Fund focuses on the mutual benefit gained from bringing fresh thinking, creative and entrepreneurial new talent into music business workplaces and networks. The fund aims to give 18-25-year-olds the opportunity to deliver their own projects and receive support from the organisations funded by Youth Music, through training, mentoring and networking.
The organisations and individuals that we support may generate, transfer, or use IP rights. Organisations and individuals should therefore consider and discuss how to handle any IP that may be generated or used when they work together. The issue of IP ownership should be addressed in a contract between the organisation and the individual. Organisations should respect the needs of individuals and should not take advantage of them.
Categories of IP rights
IP rights fall into two general categories:
- Registered rights. These rights need to be registered with an official organisation that manages IP rights. In the UK this organisation is called the Intellectual Property Office (IPO). There are similar organisations in other countries. Registered IP rights only offer protection once they have been registered. Once registered, the owner of the rights can stop others from using the relevant work without permission. Examples of registered IP rights include trademarks (which protect brand names and logos) patents (which protect inventions) and registered designs (which protect certain kinds of creative designs).
- Unregistered rights. These rights do not need to be registered. They arise automatically when certain conditions are fulfilled. Once the right has arisen, only the owner is allowed to copy or use the relevant work. Copyright is an example of an unregistered IP right. Copyright protects sound recordings, songs, pieces of writing, images, photographs and other creative works.
We’re going to focus on copyright, as it is the IP right that’s most relevant to the businesses and individuals that we support. But similar issues can arise in relation to other IP rights too.
Copyright – what is it?
As mentioned above, copyright is an unregistered right and arises automatically on creation, meaning that you don’t need to do register it anywhere to protect it. Copyright protects the following types of works
- original literary, dramatic, musical and artistic work, including illustration and photography;
- original non-literary written work, such as software, web content and databases;
- sound and music recordings;
- film and television recordings;
- broadcasts; and
- the layout of published editions of written, dramatic and musical works.
The creator of a copyright work is known as the author. Copyright in a work typically lasts for the lifetime of the author and for a number of years after their death (generally 70 years, but it depends on the particular category of copyright work).
Where a copyright work is going to be created or used, it is important to establish who the copyright owner is, and to ensure that the relevant permissions have been given, in order to avoid confusion or conflict further down the line.
Ownership of copyright in a work is vital as this will not only give the owner the right to exploit the work for a commercial gain but it will also allow the owner to prevent others from:
- copying the work;
- distributing copies of it, whether free of charge or for sale;
- renting or lending copies of the work;
- performing, showing or playing the work in public;
- making an adaptation of the work; and
- sharing it via the internet.
Copyright seeks to protect the form of expression of ideas and not the ideas themselves. The primary purpose of copyright law is to reward authors for the creation of original works, that is, where the author has created the work by using their own independent effort. For example, copyright will protect your song from being copied but it will not protect against someone else creating a similar song.
Copyright – ownership
The general rule
The general rule is that the first owner of copyright will be the author of the work. There are exceptions to this rule. The exception particularly relevant to the businesses and individuals we support is the exception regarding whether the author made the works in the course of employment. (More info about this in the Exceptions to the general rule – Employment section below).
Who is the author?
For sound recordings, films, broadcasts and typographical arrangements, the following people are taken to be the author:
- The producer of a sound recording, meaning the person who made the arrangements necessary for making the sound recording.
- The producer and principal director of a film. The "producer" of a film is the person who made the arrangements necessary for making the film.
- The person making a broadcast.
- The publisher of a typographical arrangement.
For photos the situation is slightly different. Generally speaking, the person who took the photo is normally the author. However, if one person arranged and composed the subject-matter of the photo, and another person merely pressed a button to take the shot, then the author is more likely to be the person who arranged the scene. But general instructions given to a photographer as to the type of photos to be taken, or the very general acceptance that there was a team effort involved in the shoot as a whole, are deemed to be insufficient to make anyone other than the photographer the author and first owner of the copyright in the photos.
Exceptions to the general rule - Employment
Where a work is made by an employee in the course of their employment, the employer (NOT the author) will be the first owner of copyright in the work, unless agreed otherwise. The critical elements here are "employee" and work made "in the course of employment".
Employee – this is someone employed under a contract of service or of apprenticeship (this is distinct from an independent contractor under a contract for services).
This may seem confusing but, in essence, the difference is that a contract of service describes a relationship where you have a contract with a company to perform a particular role, whereas a contract for services is an arrangement where you’re appointed as a consultant or sub-contractor to provide a specific service (e.g. a commissioned work – see Commissioned Work below).
For example, if you have a six-month contract with a company to be their Marketing Officer, that’s probably a contract of service. If you have a contract to write 10 articles for a company, that’s probably a contract for services.
In the course of employment - the copyright for any work you create outside the normal course of employment will not automatically belong to your employer.
Sometimes it is not obvious whether an individual is an employee or a contractor, and whether the copyright work has been created in the course of employment or not.
In the case of a work commissioned from a third party, the contractor will own the copyright even though the commissioner of the work has paid for the work to be created, unless agreed otherwise. It is therefore essential to deal with the position on copyright ownership clearly, and ideally up front, in order to avoid potential problems over who owns the copyright.
Transfer of copyright
Ownership of a copyright work can only be transferred in writing, signed by the copyright owner. A transfer of ownership of copyright is known as an assignment of copyright.
It is possible to give someone permission to use a copyright work, without transferring ownership to them. This kind of permission to use a copyright work is known as a licence of copyright.
Since the first owner of the copyright is the author, anyone else wishing to own or use the copyright work must ensure that they obtain the relevant assignment or licence from the author, or from someone else who has validly obtained such an assignment or licence from the author. Often copyright changes hands between multiple owners or licensees over time. The set of connections between copyright owners or licensees is often known as the chain of title.
Example 1 – Creation of works by employee in the course of employment
An organisation employs Bryony as a writer/reporter to write on its music news and reviews platform.
The news and reviews material that Bryony writes is probably protected by copyright as a literary work. There is an employment contract in place between the organisation and Bryony, and writing this kind of material is one of her duties as an employee. It would therefore be appropriate that any IP rights generated by Bryony in the course of writing articles for the organisation should be owned by the organisation. The author of the works (in this case, literary works) would be Bryony but the owner of the works would be the organisation (as the employer).
Example 2 – Creation of works by employee outside the course of employment
While Bryony is employed by the organisation, she also carries out a side project, writing a personal blog for other young people to follow.
The blog material that Bryony writes is probably protected by copyright as a literary work. Although the blog may mention the organisation, it is not written for the organisation nor for the organisation’s direct benefit. Bryony is doing this as a project of her own, as she is passionate about the music industry, wants to improve her writing, and grow her own personal brand. In this scenario it would be inappropriate for the organisation to be the owner of this particular IP created by Bryony.
Example 3 – Creation of works by contractor in the course of their duties under contract
You hire Malik - an independent contractor - under a contract for services to provide sound design services for you. The sounds created by Malik are probably protected by copyright in sound recordings.
In this scenario, Malik would be both the author and owner of his works. However, in this circumstance it would be appropriate for all works specifically created for, and instructed by you, to be owned by you e.g. the relevant sound recordings. You should deal with this by addressing the issue of IP ownership in the contract that you have with Malik.
Example 4 – mixed circumstances
Later, you take Malik on as a fully-fledged employee, instead of as a contractor. While Malik is working for you he is also working on a side-project, although he uses your equipment and resources to do so. This side project is not something that you have asked Malik to do. The position is somewhat similar to example 2 above. However, the fact that Malik is using your equipment and resources makes it less clear whether this work has been created outside the course of his employment.
On balance, it would probably be inappropriate for you to take ownership of his work (even though he is an employee and even though he used your equipment and resources). It would probably also be inappropriate for Malik to make use of your equipment and resources in this way without permission. Your contract with Malik should anticipate these kinds of issues. It should make clear what the scope of Malik’s role is. It should set rules on when Malik is entitled to use your equipment and resources. It should also make clear that you own the IP rights in work created specifically for you, but that Malik owns IP rights in work that he creates separately.
As you can see from the above examples, there is no one-size-fits-all approach to who should own the IP. This will vary and depend on the facts of the situation. The answer will not always be clear cut. It is therefore very important that both organisations and individuals act responsibly and thoughtfully in their dealings with IP.
For more information on IP rights in general, see the government’s guidance at https://www.gov.uk/intellectual-property-an-overview.
If you have any questions or require assistance in dealing with IP rights in your employment agreements or contractor agreements, we would recommend that you speak to a lawyer specialising in IP law.
Thanks to Nick Eziefula at Simkins for his expertise in developing this guidance.