Lawful use of copyright

When designing a website and using material you have not created yourself i.e. photographs, images and text, it is important that you find out whether the person providing the material to you actually owns or lawfully has the right to use the material as it is very likely that the material is protected by copyright. The Copyright Designs and Patents Act 1988 governs copyright law in the U.K and it lays down the following rules regarding the ownership and use of material protected by copyright.

The first owner of copyright is the author, in other words the person that actually created the work by virtue of section 11(1) of the CDPA 1988. However there is an exception to this rule, according to section 11 (2) of the CDPA 1988 if the work was created by someone as part of their job (that they were paid for) i.e. an employee, in the course of employment, then ownership rests with the employer (unless there was an agreement that the employee will own the work).

Assigned work

A copyright work may be assigned by the original owner, for use by a third party. An assignment is the legal transfer of ownership in a work, an assignment may be for a limited term or possibly even for the duration of the whole term that copyright protection subsists in a particular work i.e. for a photograph protection lasts for 70 years after the death of the original author s12(2) CDPA 1988. Section 90(3) of the CDPA 1988 specifies an assignment will only be effective if it is in writing and signed by or on behalf of the original owner of the copyright work.

Licensed work

Essentially a license is the leasing of the copyright work to a third party, this differs from an assignment in that there is no transfer of ownership, permission is granted to carry out certain acts exclusive to the owner i.e. the use of a photograph or an image for a webpage. There are a variety of licenses available and lawful use of a copyright work depends on the type of license granted.

Commissioned works

Where copyright work has been commissioned, ownership initially rests with the person that created the work however there have been cases in the past where the courts have held that ownership rights should be assigned to the person that has commissioned the work. This is because the person commissioning the work is paying a person to create the work for a specified purpose, therefore the commissioner should be able to use the work for that purpose, exclusively, without interference from the person that created it. Further ownership may simply be transferred from the person creating the work to the person commissioning the work, by a straightforward assignment as detailed above.

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