Under the Copyright Act, the author of an original work is usually the first owner of copyright in that work. The rights belong to the author automatically as soon as an original work has been put into material form, such as in writing. There is no need to put a copyright symbol or notice on a work for a person to claim copyright ownership, although it is common practice to do so. Of course, authorship and ownership are different concepts. There are some circumstances when the author will not be first owner.
Who is the author?
In most cases the author is the person who creates a work. In the case of sound recordings and films, the creator is the person who undertakes the arrangements necessary for the making of the recording or film (traditionally a recording company or a film producer). In the case of a communication work, the creator is the person who makes the communication work (traditionally a broadcaster, pay television provider or website proprietor). The creator of a typographical arrangement of a published edition is the publisher. In the case of most computer-generated works, the creator is the person by whom the arrangements necessary for the creation of the work are undertaken.
When is author not the first owner?
Although the general rule under the Copyright Act is that the author is first owner of copyright in a work, there are exceptions listed in the Act:
Works created in employment. Where a work is created in the course of employment, the employer will own copyright. The phrase “in the course of employment” involves consideration of the totality of the employee’s role and the scope of their employment responsibilities. However if a person creates a work as part of his or her job, then copyright is generally owned by the employer.
Certain types of commissioned works. Where someone commissions a person and agrees to pay them for a photograph, painting, drawing, diagram, map, chart, plan, engraving, model, sculpture, film, sound recording or computer program, the person who commissioned the work will own copyright.
Crown works. Where a work is created in the course of employment by the Crown (such as a government department) or created by a Crown contractor, the Crown will own copyright.
Rules of ownership can be varied by agreement
The rules of first ownership set out in the Copyright Act can be varied by agreement. For example, some employment agreements may contain a provision that an employee owns copyright in certain works they create during the term of an employment contract and some commissioning agreements may stipulate that the artist retains copyright in works created.
There can be more than one owner
In some cases, there may be more than one copyright owner in a work, for example, where two or more people collaborate on a work or where copyright has passed to several beneficiaries under a will.
Ownership can be transferred
As copyright is a property right, copyright ownership can be bought, sold, transferred and given away like any other form of personal property. Moral rights are personal to the creator, so they cannot be sold or transferred to another person.