Copyright Ownership In Employment Relationship

By Boluwatife Sanya

My employer is claiming copyright to a book I authored. Does he have such right?

While I was at the recently concluded Annual General Conference of the Nigerian Bar Association held in Lagos, I received a call from a childhood friend who is a Human Resource personnel in a publishing company.

He abandoned greetings and my attempt to ask about “our wife” (his madam) was met with a question. He said; “I authored a book and my M.D says it is his company that owns it. I have expended so much time and effort writing that book, does the company really own it?”

I immediately excused myself from the gathering and took my time to hear from him. The questions below and answers were able to resolve his issue.

Before proceeding to address this issue, I find it pertinent to give a short background to Copyright.

Summarily, copyright are rights that protect literary and artistic works. In other words, they are rights that creators have over their literary, artistic, musical, broadcasts, cinematography and sound recordings. For a work to enjoy copyright protection, it has to be original and fixed in a tangible medium.

There are broadly two rights that copyright clothes a creative. They are; Economic and Moral rights. Economic rights include the rights to reproduction, distribution to the public, publication, public performance, making a translation or an adaptation of the work, rental and broadcast.

Moral rights are the rights to integrity and paternity. Integrity right means that the author can prevent anyone from mutilating, distorting or modifying his work which appears derogatory. The rationale for the integrity right is that a work is deemed to be a reflection of the author’s personality. Paternity means that the author should be acknowledged wherever is work is used.

Now to the issue, the general rule is that copyright is vested and or owned by the author. Who is an author? This cannot be defined in one context as the interpretation section of the Nigerian Copyright Act defines the word “Author” in the context of works such as broadcasts, literary, artistic, musical, cinematography, photographs and sound recording.

For the purpose of this piece, I will focus on authorship in literary, artistic, musical and photographic works.

An author in literary, artistic and musical works means the creator of the work.

An author in photographic work means the person who took the photograph.

Hence, if you have written a book or lyrics or took a photograph, you are the author and deemed the copyright owner.  See section 10 of the Nigerian Copyright Act.

Will ownership of copyright automatically transfer to the employer if the work was created in the cause of employment?

No, ownership will not be transferred unless there is a contract of employment expressly assigning the economic rights in every copyrighted work created during the pendency of employment. In other words, the employer could own the economic rights only when there is a contract of employment stating this. It is important to note that only economic rights can be assigned or transferred, moral rights can never be assigned or transferred. Hence, if a contract of employment states that copyright is owned by the employer, the employee (who is the creator of the work) retains moral right and the employer must always acknowledge that the employee is the creator.

Will the answer change if the work was created during the pendency of employment but not during working hours?

Yes, because the employment contract does not cover non-working hours. Hence, copyright in this instance belongs to the employee. See Avtec Systems v. Pfeiffer, 67 F.3d 293 (4^th Circuit 1995). The follow up question would be; how will the employee prove that the contested work was created during non-working hour?

What if the employee was not employed to carry out the duty whose outcome birth a copyrighted work?

The copyright will belong to the employee. For instance, if one is employed to write news stories for a publishing company but during the pendency of that employment, creates a graphics, the publishing company cannot lay claim to it.

What is the position of the law if the relationship is not that of employer-employee?

The author owns copyright. For instance, if you have invited a photographer to take shots of you at a graduation ceremony, without executing a release agreement with the photographer, the photographer owns the copyright in the photographs. Hence, you cannot commercially use those photographs without seeking his permission.

THE PRINT MEDIA EXCEPTION

Section 10 (3) of the Nigerian Copyright Act states that where a literary, artistic or musical work is created by an employee or apprentice during the pendency of a contract of service or apprenticeship in a newspaper, magazine or similar periodical, in the absence of an agreement between the parties, the copyright in the work shall belong to the owner of the newspaper, magazine or similar periodical as it relates to the publication in that newspaper, magazine or similar periodical or reproduction but in all other aspects, shall belong to the author.

The first point to note is that this subsection still acknowledges that the author owns the work itself but with limitations. The author/employee does not own copyright as it relates to the work being published in any newspaper or magazine or its reproduction for the purpose of being published.

It is pertinent to note that a company is not a human being. Hence, can only own economic rights to a copyrighted work. The employee/author will forever own the moral rights to the copyrighted work. This is the reason one will always see the name of a author beneath every work published in a newspaper or magazine.

Upon reading this, I know you may want to ask the question below;

Does the owner of a newspaper or magazine own the copyright in a work created by a freelance writer or guest writer or a non-paid columnist?

No, because the relationship is not that of contract of service or apprenticeship.

Always ensure that a contract of employment contains a detailed information on ownership of copyright.

In conclusion, as an employer, ensure your employment contract addresses issues bothering on ownership of copyright and other intellectual property rights. As an employee, look through the contract properly before signing it. To persons who contract independent contractors I.e photographers, ensure they execute a release agreement in your favour.

Written By Boluwatife Sanya , LL.B, B.L, Copyright (Harvard), ACIArb (U.K), MIP (WIPO, ARIPO, A.U) , Email: boluwatifesanya1@gmail.com, Hotline: +2348147439799