Intellectual Property Specialist Sarah Sillar looks at jointly owned copyrighted work, discussing how co-owners can use a collaboration agreement to set out both parties obligations and proceed entitlement.
Collaboration in business
‘If you want to go fast go alone, if you want to go far, go together’ – African Proverb
Collaboration has the power to take inspiration and creativity to new heights with the resulting work being greater, more successful and more valuable than anything either person could have produced alone.
Collaboration works best in an environment where creators are secure and trusting of each other and in order to achieve this, it is important that they have a full understanding of how the work they create together will be owned, used and protected for the benefit of all.
This article explains the default position under UK law and the ways in which the interests of collaborators can be secured to ensure that projects proceed without mistrust, conflict or the surrender of valuable ideas.
Who owns the copyright in a joint work?
A joint work is created when two or more individuals work together to create a piece of work, their contributions to the final piece are inseparable and not distinct from each other.
When this happens, the copyright is owned ‘jointly’ by default unless there is a specific agreement between the contributors.
It is worth noting that if the contributions can be separated and extracted from the final edit, then they would be owned separately rather than jointly and there is no joint work unless each collaborator has provided a significant contribution.
What is joint work copyright?
Joint work copyright means that each of the collaborating authors has acquired the usual rights associated with copyright in relation to the work, but some of those rights can only be exercised when all collaborators agree, such as publication, or granting a licence permitting someone else to reproduce, use or commercially exploit the work.
Additionally, if there is an infringement, although one co-owner can sue the infringer without the consent or involvement of the other(s), any damages or compensation recovered will need to be shared.
What is the term of a copyright for a joint work?
Generally speaking, where the work originates in the UK, and the authors are UK nationals, the duration of copyright for a literary, dramatical, musical or artistic work is 70 years from the end of the year in which the last surviving author dies.
Duration of copyright does, however, have certain exceptions and specific rules apply depending on the type of work produced (sound recordings, film and typographical arrangements all have different terms of copyright) therefore creators will be advised to ascertain the exact duration of copyright for the specific work prior to beginning any legal proceedings.
What issues can arise with joint ownership of copyrighted work?
Many issues can arise with the joint ownership of copyrighted work.
For example, If the contributions made by each person were unequal there may be a sense of unfairness between them, the default starting position at law with co-owners is that they own rights equally, and this will include the right to receive royalties.
Therefore, there is potential for conflict from the outset.
Internationally, the laws of different countries can vary dramatically as regard how joint copyright is protected and treated, therefore when individuals inside the UK collaborate with others outside the UK they should be clear as to how they are intending to manage the legal protections and obligations. Ideally, they would set out their intentions in a legally binding agreement.
How to avoid disputes between co-owners of intellectual property
On a creative level, there could be many potential causes of conflict between co-creators and this cannot always be prevented, but most conflicts related to ownership and exercise of legal rights could easily be prevented by the parties being clear from the outset as to their expectations of one another, and these expectations being written into a collaboration agreement.
What is a collaboration agreement?
A collaboration agreement is a contract which collaborators can enter into at any time before, during or after a project has been completed, setting out the obligations that they will assume, how royalties or proceeds of the project will be split and how a project will be managed.
As conflict can arise at any stage, the best time to enter into the agreement is at the outset of the project.
This way the agreement can also deal with aspects such as confidentiality to ensure that even in its earliest stages the project remains within the control and management of the collaborators and the ideas are not leaked to third parties.
Is a collaboration agreement legally binding?
The contract will be legally binding if there is agreement between the parties, certainty of terms and a clear intention to create legal relations. It is therefore important that the agreement is drafted in a clear and precise manner.
What should a collaboration agreement include?
A good collaboration agreement will deal with all aspects of the project including:
- What are the parties hoping to create and what are the parties’ minimum obligations in terms of time, resources and funding?
- Have the parties provided any of their own pre-existing intellectual property to the project and how will that be contributed to the project or embedded within it?
- How will the resulting intellectual property in the work created be protected?
- How will the resulting intellectual property be owned? will it be equal shares or unequal?
- Who will be responsible for enforcing intellectual property rights and who will pay the costs of such enforcement?
- Which countries laws will govern the contract? -this is essential in international collaborations
- How do the parties plan to deal with the breakdown of relations between them and are there any agreed dispute resolution procedures, such as third party mediation?
Why should I use a collaboration agreement?
When a collaboration between contributors breaks down, the cost to the contributors cannot always be quantified by the loss of financial success, it can mean the loss of the friendship of a valued collaborator, the loss of opportunity to be associated with a project, a feeling of betrayal that a shared idea has been developed in a way that was inconsistent with your values.
Having the right contract in place means that many of the potential causes of conflict have been anticipated and have a resolution worked out before incidents become issues.
The contract will reduce the risk of a relationship turning sour, giving you the confidence to contribute freely and unreservedly to the project.
Specialist Intellectual Property Solicitors
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