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Re: ownership



I cannot comment on the precise copyright issues involved here as a) I am
not a lawyer and b) copyright in the UK is now governed by European
legislation which is not applicable to the US situation.

However, I believe that the Common Law background to copyright is similar
as between UK and the USA, and it is clearly the case in the UK that,
although an employer owns copyright in works produced by an employee in the
course of employment under what is called here a CONTRACT OF SERVICE, or
apprenticeship, unless any specific agreement to the contrary has been
made.  However a self-employed person engaged under an express or implied
CONTRACT FOR SERVICES (note the very similar legal names for very different
legal things - it all helps to push up the fee income!) does not count as
an employee for the purposes of copyright ownership, and normally retains
copyright in any work commissioned by another unless specific agreements to
the contrary.

However, the commissioner and the commissioner's heirs and assigns have an
implied  licence to use any work so created for the purposes falling within
the contract for services, again in the absence of any specific agreement
to the contrary.

I was formerly the head of records for Railtrack (the privatised UK rail
infrastructure company), a company which delivers its product almost
entirely via contractors rather than directly employed staff (designers,
engineers, maintenance and construction teams etc.), and in the early days
of the company many of our managers were always getting caught out on the
same assumption - that an contractor counted as an employee for copyright
purposes, and that Railtrack therefore "automatically" owned the copyright
in engineering drawings and photos of the railway produced for it by its
contractors.

The way I proposed that we tackled this was twofold
a) try to write into the contract for services a clause assigning all
intellectual property rights (IPR) to Railtrack and "bounce" the contractor
into accepting it because we were their single biggest customer (i.e.
commercial blackmail - a bit like the TV companies' approach to archives
and broadcasting rights as recently discussed on the Busarch listserv).  My
view was that this was always worth a try but that no professional
contractor worth his salt would sign away IPR, especially if IPR was the
contractor's main stock-in-trade (e.g. architects, designers and
photographers)
b) take advantage of the assumed licence for the commissioner to use the
works for purposes falling within the the contract for services by ensuring
that all contracts included clauses specifiying all possible future uses
for the commissioned material by Railtrack as falling within the scope of
the contract, without actually transferring copyright to Railtrack.

As other correspondents have pointed out, ownership of a copy of the
physical document/photo is a completely different matter from ownership of
the copyright.  You can do what you like physically with a physical object
whose title has legitimately passed to you (sell it on, for example) so
long as you do not infringe the intangible but separate set of intellectual
property rights.

Also, Alex Moss wrote:

"Issues of copyright and ownership are often less concerned with who
possesses a print
that what is being done with it, i.e. if the photographs are given to a
repository, there is probably less issue with using the materials for
research than if a researcher wants to publish the material.  (I'm sure
that very loose defense will not fly well with the legal department!)"

Actually, I think this is a valid point if you are a not-for-profit archive
institution - IPR infringements are usually about money (except where
issues of artistic integrity are raised - the "moral rights" of the
author/creator).  A copyright infringement (in the UK at least) has to be
quantifiable in terms of money lost to the copyright owner to attract the
attention of lawyers, and as usual, copyright lawyers go where the most
money is to be found (pirated CD's, that kind of thing),  This is, of
course, NOT an incentive to break the law, and, as Alex points out, will
not really fly in a corporate situation, but it does help in getting a
sense of perspective about the situation.

So Miriam - unless you can find anything different in the original contract
between the firm and the photographer there is little that can be done
about legitimate physical disposal of actual photos (and negatives).

Copyright issues always generate massive texts - this really is an area
where you can believe in a lawyers' conspiracy...

Happy New Year

Richard Taylor
==================================================
Richard Taylor
Curator, Archive Collections
National Railway Museum
Leeman Road
YORK YO26 4XJ
ENGLAND

Tel     +44 (0)1904 686 289
Fax     +44 (0)1904 611 112
Email   r.taylor@nmsi.ac.uk

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