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Internationaler Gewerblicher Rechtsschutz und Urheberrecht II

Teil 3 - Authorship

Owner of copyrightis the author of the work. Thus, in US Copyright Law the copyright protection can be tied to the person who created intellectually the work (creator) or – in specific cases – to the person who financed the creation (employer/producer). Therefore, also judicial person can be first owner of the copyright if they are employer or producer of a “work made for hire”.

§ 201—Ownership of copyright

(a) INITIAL OWNERSHIP.—Copyright in a work protected under this title vests initially in the author or authors of the work. The authors of a joint work are coowners of copyright in the work.

(b) WORKS MADE FOR HIRE.—In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.

(c) CONTRIBUTIONS TO COLLECTIVE WORKS.—Copyright in each separate contribution to a collective work is distinct from copyright in the collective work as a whole, and vests initially in the author of the contribution. In the absence of an express transfer of the copyright or of any rights under it, the owner of copyright in the collective work is presumed to have acquired only the privilege of reproducing and distributing the contribution as part of that particular collective work, any revision of that collective work, and any later collective work in the same series.

 (image: https://hssm.hqedv.de/uploads/IntUrhRAuthorship/IntUrhRAuthorship.jpg)

Joint authorship leads to co-ownership of the authors. It has three requirements:

  • multiple authors,
  • separate works,
  • deliberate combination of these works

Works made for hire” are either works by an employee or works that are especially ordered or commissioned as part of a collective work, motion picture, translation, supplementary work, instructional text, test (also answers to it), compilation or atlas. For ordered or commissioned works there need to be a written contract that the work is a “work made for hire”. As the producer/employer of the creator of “works made for hire” is not the one who gives his individuality to the work the relation between creator and employer/producer is questionable.

Copyright Law Revision – Senate Report No. 94-473 (1975), p. 105

Section 201(b) of the bill adopts one of the basic principles of the present law: that in the case of works made for hire the employer is considered the author of the work, and is regarded as the initial owner of copyright unless there has been an agreement otherwise. The subsection also requires that any agreement under which the employee is to own rights be in writing and signed by the parties. The work-made-for-hire provisions of this bill represent a carefully-balanced compromise, and as such they do not incorporate the amendments proposed by screenwriters and composers for motion pictures.

Their proposal was for the recognition of something similar to the “shop right” doctrine of patent law: with some exceptions, the employer would acquire the right to use the employee’s work to the extent needed for purposes of his regular business, but the employee would retain all other rights as long as he refrained from authorizing competing uses. However, while this change might theoretically improve the bargaining position of screenwriters and others as a group, the practical benefits that individual authors would receive are highly conjectural. The presumption that initial ownership rights vest in the employer for hire is well established in American copyright law, and to exchange it for the uncertainties of the shop right doctrine would not only be of dubious value to employers and employees alike, but might also reopen a number of other issues.

The authorship can be transferred voluntarily (17 U.S.C. § 201 (d)) but not involuntarily unless in insolvency cases (17 U.S.C. § 201 (e)).
In 17 U.S.C. § 202, the authorship in collective works is regulated.

 (image: https://hssm.hqedv.de/uploads/IntUrhRAuthorship/IntUrhRCollectiveWorks.jpg)

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