Business Day - Business Law and Tax Review - - BUSINESS LAW & TAX REVIEW -

in a po­si­tion to threaten any in­fring­ing third party with copy­right in­fringe­ment pro­ceed­ings be­fore the High Court

The Copy­right Act does make pro­vi­sion for cer­tain ex­cep­tions to the gen­eral rule that the au­thor of a work is the owner of the copy­right in it. In this re­gard, the ex­cep­tion which is most rel­e­vant when deal­ing with out­sourc­ing works is that where a per­son com­mis­sions the tak­ing of a pho­to­graph, the paint­ing or drawing of a por­trait, the mak­ing of a gravure, the mak­ing of a cine­mato­graph film or the mak­ing of a sound record­ing, and pays or agrees to pay for it, the per­son who com­mis­sions the work will be the owner of any copy­right in it. For ex­am­ple, if a com­pany com­mis­sions a pho­tog­ra­pher to take pho­to­graphs, the copy­right in those pho­to­graphs would au­to­mat­i­cally vest in the com­pany and not the pho­tog­ra­pher.

To sum­marise, it is ad­vis­able for any en­tity or per­son who chooses to use an in­de­pen­dent con­trac­tor to cre­ate a work to en­sure that a suit­ably worded agree­ment is in place prior to the ap­point­ment of the con­trac­tor. If the work has al­ready been cre­ated with­out a writ­ten agree­ment in place, it is ad­vis­able to se­cure the trans­fer of the copy­right as soon as pos­si­ble in a writ­ten agree­ment.

Be­fore any com­pany con­sid­ers mak­ing copy­right in­fringe­ment al­le­ga­tions, it will need to be cer­tain of its foot­ing and that it does, in fact, own the copy­right it thinks it owns.


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