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Copyright ownership and collaboration

July 22, 2014

The general rule of copyright ownership is that the person who first created the work owns copyright in it. 

This general rule can be varied by agreement or special circumstances. These will be covered in later posts. In this post I want to look at how copyright ownership is determined for collaborative works.

After all, that’s what we’re all about, isn’t it? Connection and collaboration. Co-written e-books, profiling other people’s work in your blog posts, getting someone to help out with the design of your online offering. These sorts of things are an important part of being a blogger.

Connection by Matt, licensed under Creative Commons BY NC SA 2.0

Connection by Matt, licensed under Creative Commons BY NC SA 2.0

When dealing with collaborative works, the question to ask yourself is this: Can you separate out what you did from what the other person did?

If you can, you will each own copyright in your respective parts. If you can’t, because your work is so closely entwined, then you will be co-owners, together, in the whole collaborative work.

Side note: It is important to note that co-owners (or “joint authors” as they are sometimes called in copyright) must each contribute to the work as a creator. In other words, they must contribute original expression. They cannot contribute only ideas or facts or something non-original.

These legal principles can best be demonstrated with a few examples:

Scenario 1

Sansa and Arya write an e-book together. Sansa writes chapters 1, 3 and the first half of chapter 5. Arya writes chapters 2, 4 and the second half of chapter 5.

Sansa will own copyright in the chapters she wrote and the part of chapter 5 that she wrote. The same goes for Arya.

Sansa can give permission to Cersei to use the parts of the book that Sansa wrote, and she can even transfer copyright ownership in those parts to Cersei if she wishes. But she cannot give permission for the parts that Arya owns. This means that if Sansa wants to give Cersei permission to copy or publish the entire e-book then she will need Arya’s permission as well.

In fact, if Sansa wants to post a sample from chapter 2 on her own blog she will still need Arya’s permission, because Sansa does not own copyright in chapter 2.

Scenario 2Again, Sansa and Arya decide to write an e-book together. They brainstorm and plot out the chapters together. They write the book using Google Docs, adding sections and making changes to each other’s work. They go back forth, adding, deleting, editing, until they can no longer remember whether it was Sansa or Arya who put those particular words into that particular section.

This is what we call a collaborative work or, in copyright lingo, a “work of joint authorship”. It is not possible to separate out Sansa’s work from Arya’s work.

In this scenario, Sansa and Arya own copyright in the whole e-book together. They are co-owners. They  both need to give permission to other people to use the work, one cannot give permission without first consulting the other.

For example, let’s say that Cersei emails Sansa and asks if she can post a sample of the e-book on her blog, to boost page views of her blog but also to boost sales of the e-book for Sansa and Arya. Sansa cannot give the go-ahead to Cersei without checking with Arya first.

Sansa also cannot transfer copyright ownership in the e-book without Arya. So pretend that Hay House wants to turn the e-book into a physical book, but wants copyright in the e-book transferred to them first. Both Sansa and Arya have to agree to this, not just one of them.

In fact, strictly, Sansa cannot herself exercise one of the exclusive rights without consulting with Arya first (and vice versa). This is a tricky situation, because it can potentially put the girls in a deadlock where neither one of them can use the work without checking with the other each and every time she wants to do something. The best way to deal with this is to agree upfront about what things they can do without first asking each other. This blog post is the first in a three part series on collaboration. I’ll be covering what things you should do and discuss before collaborating in the third post of this series.

scenario 3

Let’s say we have the same situation as in scenario #2, but Sansa and Arya have also asked Daenerys to do the design, formatting and layout of the e-book for them.

All the same principles will apply as in scenario #2 with this added complication – Daenerys will own copyright in the design and layout of the e-book. This is called copyright in the “published edition“.

Sansa and Arya can grant copyright permissions or transfer copyright ownership in the e-book as written without the design and formatting. So they can give Cersei permission to put an extract of the text of the e-book on her blog, but this must be stripped of the layout work that Daenerys has done.

To reproduce the work with Dany’s layout work, then Daenerys will also need to grant permission. Same goes with transfers of ownership.


This sums up the ownership arrangements for collaborative works and what the copyright owners can do with their works. I know that some of you may have already collaborated with others and already posted things on your blog (or given permission to others) without first checking with your collaborator. In the next post in this series I’m going to cover implied licences, which can apply to these situations. Thanks for tuning in!

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Copyright licences

July 15, 2014

Collaboration by AJ Cann, licensed under Creative Commons BY-NC-SA 2.0

Collaboration by AJ Cann, licensed under Creative Commons BY-NC-SA 2.0

 

Licences are an important part of copyright law. “Licence” is basically the legal term for copyright permission. When you grant a licence to someone you are granting them permission to use your copyright work in a particular way.

Licences can be limited in a number of different ways. They can be limited by the type of exclusive right. For example, you may grant someone permission to copy your work, but not to perform it publicly. Licences can be limited by purpose, so for example I might grant someone a licence to use my work on their blog but not in their conference seminars. They can be limited by time, so you might grant a permission that lasts for one year only then expires. And they can be limited geographically, so you might grant a licence for use in Australia only, for example.

Licences can have terms attached, such as: “I give you permission to use my photograph so long as you always include a link back to my blog underneath the photograph”. Licences can be granted for free or in exchange for something (usually money). Money paid for a licence is called a “licence fee“.

These limitations are useful for you to know both in your role as potential licensor (the person granting permission) and as potential licensee (the person receiving permission). As licensor, you may wish to place certain limits on the licence you grant to someone in order to maximise the licensing value of your copyright work. As licensee you will want to check that the limits on the licence granted to you do not prevent you from doing what you want or need to do with the copyright work. For example, if you’d like to post someone else’s picture on your blog or in your book, it’s not helpful to have a licence that expires after 6 months.

There are different types of licences, and it’s important to be aware of them because they have different impacts on your rights:

Non Exclusive Licences

These are the most common form of licence. “Non-exclusive” means that the same kind of licence can be given to different people at the same time. For example, I can grant Lisa a non-exclusive licence to post my photograph on her blog, and I can also grant Kristen a non-exclusive licence to post the same photo on her blog.

Non-exclusive licences can be given verbally; they do not need to be written down. However, it is always a good idea to have a written record of anything you agree on with someone else.

Exclusive licence

Exclusive licences are a bit trickier and you should keep an eye out for them. An exclusive licence means that the right is granted exclusively to the licensee. The tricky part is that even the copyright owner is excluded from exercising the right granted for the period of time of the licence and within the jurisdiction of the licence. So if I grant Natasha an exclusive licence to publicly perform my song in Brisbane for a period of 3 months, that means that I cannot perform my own song in Brisbane for the next 3 months and I cannot give anyone else permission to perform the song in Brisbane during that period.

Exclusive licences often arise in publishing contracts – the publisher may take an exclusive licence to publish the book and a non-exclusive licence to copy and adapt the book. This means that only that publisher can publish the book. The author can reproduce the book and give other people permission to reproduce it, but cannot contract with another publisher to also publish the book.

Because exclusive licences are much more restrictive than non-exclusive licences they cannot be given verbally. The law says that exclusive licences must be in writing and signed by the licensor (the person giving the licence).

sole licence

These are exactly the same as exclusive licences, with one small but important difference. Under sole licences, the copyright owner retains the right to do the act covered by the sole licence. So if I grant someone a sole licence to copy my book, they can copy it and I can copy it but noone else can. I cannot grant anyone else a licence to copy my book.


Phew! I know that’s a lot to take in, but it’s important stuff. Licences are highly relevant to your interactions and transactions online. I’ll be highlighting exactly how in future posts.

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Comments {2} Filed Under: Copyright Licensing, Key Concepts

“No copyright intended”

July 8, 2014

It is extremely common to see the following statement when people share things online: “No copyright intended!“. This is especially so on YouTube. In fact, it’s rife there.

no copyright intended

This statement seems to arise from a fundamental misconception about copyright law, particularly among the internet’s younger users, that copyright is simply a claim of title. By writing “No copyright intended!”, the user seems to be saying: “I’m not claiming that this is mine!”

Unfortunately for those users, however, copyright law does not care about intention. Copyright infringement is sometimes called a “strict liability” action, which means that if you exercise one of the copyright owner’s exclusive rights without permission or legal exception then you have infringed copyright – there are no if, buts or maybes about it. The copyright owner doesn’t have to prove that you meant to infringe their work, or even that you knew what you were doing when you infringed. Intention is irrelevant to copyright infringement.

What’s the best thing to do about this? Be aware of your rights and the rights of other creators. That’s what I’m aiming to help you with via this blog. Any questions? – Feel free to contact me.

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Hey there, I’m Kylie. I provide bloggers (like you) with information to help you navigate the legal issues around blogging – so you can get on with the important job of creating!
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