In Australia, the copyright law gives the creator or the author of a piece of writing the first ownership of copyright. In fact, section 35(2) of the Copyright Act 1968 provides that: "Subject to this section, the author of a literary, dramatic, musical or artistic work is the owner of any copyright subsisting in the work by virtue of this Part". In the same way, in the United States, according to Section 201(a) of the Copyright Act of 1976, the initial ownership goes to the author of the work. It states, "Copyright in a work protected under this title vests initially in the author or authors of the work". In France, the author is the one on behalf on whom the work is disclosed according to article L.113-1 of the Intellectual Property Code. The rules are exactly the same and it is actually an international rule that is recognized by the Berne Convention for the Protection of Literary and Artistic Works of September 9, 1886 which provides a protection to the work of the author (article 2(6) of the Convention: "The works mentioned in this Article shall enjoy protection in all countries of the Union.?
[...] Copyright in a employment context A. Copyright in ‘anglo saxon' countries: In Australian Copyright Act 1968, section 35(6) provides that “Where a literary, dramatic or artistic work to which neither of the last two preceding subsections applies, or a musical work, is made by the author in pursuance of the terms of his or her employment by another person under a contract of service or apprenticeship, that other person is the owner of any copyright subsisting in the work by virtue of this Part.” However, it is possible to exclude this exception or modify it by agreement as section 35(3) provides that operation of any of the next three succeeding subsections in relation to copyright in a particular work [referring among others to copyright in an employment context] may be excluded or modified by agreement”. [...]
[...] In fact, if the answer is yes, the copyright will automatically vest in the employer. If no, it will not. This is quite difficult to determine because there is a few authorities guiding on this point. It is necessary to know if the creation of the work is part of the employee's “normal duties”. On this point, case law can give some guidelines. In Antocks, Lairn Ltd v I Bloohn Ltd[3], an employee managing director of a furniture company) drew furniture which did not vest in the company because the Court said the work was outside the scope of the director's usual management duties. [...]
[...] The French jurisprudence gives a lot of examples of this principle[15]. There is however one exception. In fact, in 1985, a law was passed to regulate software created by employees. Recently, with the DADVSI law (2006), public employees' status has been reformed and the patrimonial rights of the works created by these employees are now vested in the public employers who hire them. Furthermore, employers cannot insert in the contract of employment a clause providing the global cession of all future works of their employee. [...]
[...] The Supreme Court of the United States had to deal with the interpretation of the Copyright Act 1976 in a case of a “work for hire” in Community for Creative Non-Violence (CCNV) v Reid. Mr Reid was hired by an organization to produce a sculpture to highlight the homeless phenomenon in America. In the course of telephone calls, the sculptor agreed to make the sculpture. The parties agreed that the project would cost no more that $15,000, not including the artist's services which he offered to donate. No written agreement was signed by the parties. [...]
[...] Montreal Locomotive Ltd (1947) 1 DLR 161; Young and Woods Ltd v. West (1960) IRLR 201; O'Kelly v. Trusthouse Forte plc. (1983) IRLR 370 (stating that all relevant factors must be balanced) David Bainbridge, Software Copyright Law 250 (Butterworths 1999) article L.111-1 al of the IPC see e.g., Cour de cassation, 1ère ch. civ décembre 1992 et 21 octobre 1997 see e.g., Cour de cassation, 1ère ch. civ octobre 2000 "Base Line" art. L.131-3 al.1er, see e.g. Cour de cassation, 1ère ch. civ juillet 2006, n°05-15472 art. [...]
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