A description of/introduction to the project goes here, along with credits, context, etc.
I. Exclusive Rights and Limitations on Exclusive Rights
Public performance right and its limitations; photocopying by libraries; jukebox exemption; ephemeral recordings; compulsory license of mechanical rights.
Text links etc.
III. - Ownership of Copyright
Who is the initial owner of copyright? What is the rule for ownership of joint works; works made for hire; collective works? Divisibility of copyright. Copyright as distinct from ownership of the material object; How is copyright ownership transferred, and what are the requirements for transfers?
H. Title
Foreign systems of copyright without formalities are generally based upon the premise that copyright in a work belongs to the author, and that all rights must come from him. The old English law provided that the author was the first owner of copyright except in cases of certain photographs and where the author was an employee for hire. Subject to the same general exceptions, the author is the owner of copyright under the new English statute." Where his name appears on the copies, he is presumed to be the owner; where his name is missing, then a publisher whose name does appear will be presumed to be the owner of the copyright at the time of publication. These provisions become even more important where copyright without notice is combined with a term dependent upon the life of the author.
During the debates on the new British copyright law, there were long discussions on the rights in works commissioned for publication in newspapers and magazines, and these provisions were changed on several occasions. The upshot was a compromise in which the publisher secured newspaper and magazine rights, but thereafter, copyright reverted to the author. The authors regarded this as – “an unwarrantable departure from the basic principle that copyright vests in the creator of the work unless and until he chooses to part with it or with an interest in it by express contract. At every stage in the Bill the Society (of Authors) and its supporters have fought for the reinstatement of this basic principle”
Any system of copyright without formalities would have to be adapted to the needs of American business practice. At present, the author is rarely the first copyright proprietor in the case of books. The function of the publisher in the United States is different here than it is abroad; in the case of music, for example, the printing of sheet music has become a minor part of the work of the publisher. The control of rights is an important bone of contention between authors and publishers, and authors believe that
“The author as creator of property is fundamentally the person properly entitled to all the rights therein. The idea that ownership of copyright should properly vest in any person other than the creator is an anomaly and is repugnant to commonsense; and its existence is an error in our American jurisprudence.”
It is conceivable that a reconciliation of the divergent points of view of the author and publisher might be worked out on a practical industry basis, but divisibility, particularly without formalities, would seem to make it necessary to specify in the law who is the initial copyright holder.
There’s a whole section on divisibility in the laws of Foreign Countries by Arpad Bogsch in page 57-63 of the study. Here are some highlights:
I. Assignability of Copyright
(A) the entire copyright in a work, i.e. the sum total of all rights in a work, which in many foreign countries includes the droit moral (“moral rights”) is not assignable according to the law of several foreign countries. A trend in this direction may be detected in continental Europe in more recent times: copyright in toto is not assignable – only the rights of economic exploitation are. Even these may be subject to certain exceptions, for example, rights concerning a form of exploitation not known at the time of the assignment may be declared nonassignable. The droit moral is frequently declared to be nonassignable.
(B) The explanation of this tendency should probably be sought in the difference between the Anglo-Saxon philosophy of “copyright” and the continental European philosophy of “droit d’auteur” (“rights of the author”); whereas the former is more attached to the work and is primarily concerned with property rights, the latter is so strongly attached to the personality of the author that a complete severance of the rights in a work from the person of the author is generally not conceivable.
Not about foreign but the proposals in report, post-CRO studies
Ownership of Copyright
Ownership and divisibility – The report would leave unchanged in most respects the present law regarding the ownership of copyright. Copyright would be made divisible however, so that ownership of the various rights comprised in a copyright could be assigned separately. Under the present law, an assignment is not effective against third persons without notice unless it is recorded and this provision would be extended to exclusive licenses and partial assignments.
Contributions to periodicals—The report proposes that the copyright secured by the publisher in a periodical or other composite work cover all contributions not separately copyrighted. In the absence of an express assignment, however, the publisher would hold in trust for the author all rights in the contribution except the right to publish it in a similar work.
CRO Study No. 12 Joint Ownership, George Cary, August 1958
- Foreign Laws
The statutes of 14 countries in various parts of the world have been examined as representative of the various foreign laws on the problem. The statutes of all 14 foreign countries included in this study,
unlike the U.S. copyright law, define what is tantamount to "joint authorship." The laws of several foreign countries use the terms "collaborators" or "collaboration," 89 rather than the terms" joint authors" or "joint authorship." The laws of other countries refer only to works" jointly created," and one country begins its statute, "If several persons jointly are authors * * *. As previously discussed, in the United States the task of defining joint authorship and determining the incidents which accompany the relationship has been left to the courts, and there is considerable basis for concluding that the courts have apparently not yet agreed as to the exact nature of joint authorship.
For the most part, foreign laws more narrowly define coauthorship than do our courts, as will be seen by chart 1, to follow. Foreign countries require that the contributions of each author be "inseparable," or such that they cannot be individually identified. This is similar to the view taken in the earlier American decisions; but the current American view, if the 12th Street Rag doctrine prevails, requires only a "fusion of effort" as a basis for establishing the relationship.
Whereas American courts generally designate joint ownership of copyrights as a "tenancy in common," foreign copyright statutes generally avoid real property terms when categorizing the joint ownership relationship in terms of property rights." Infrequently one reads that joint authors or collaborators enjoy "equal rights," or hold "joint property." The implication is that unless specific incidents of ownership are doled out by agreement, "share and share alike" is the rule of the day. Another provision found in some foreign statutes which differs from American case law dictates that joint authors must get permission from other coauthors of the work before the work is personally exploited or licensed to third persons." In a few countries, there is an added provision allowing one or more joint authors to require the nonassenting joint author to join such an agreement or be indemnified for loss.
Even having established, in some countries, what constitutes joint authorship, one is faced with interpreting the meaing of statutory language to the effect that joint authors hold the property "in common" or "jointly," or that they have "equal rights." Such phrases do not establish the incidents of joint ownership as between the coauthors and in their dealings with third persons. Presumably the civil codes must be referred to, in some countries on this point but such a task is not within the scope of this paper. However, it should be readily apparent that there is a "great diversity of the principles governing the works of joint authorship throughout the world."
Rarely do foreign copyright statutes mention the rights of coowners (as distinguished from joint authors) of a copyright, possible because often the rights of coowners of property of all kinds are set out by
civil codes. It is also reasonable to assume that, in most cases, the rights of coowners are the same as those of joint authors, excluding such refinements as moral rights, or, as in the case of the United States,
the renewal right.
The charts to follow are designed to provide an easy method of comparing the statutory provisions of 14 foreign countries which deal with joint authorship of copyrights. They also present a reference
table for the subject matter and reflect salient features of foreign law which not only are controversial, but are the heart of the problems attending joint authorship of copyrights.
Comments.-All of the countries included in this chart define joint authorship by statute, although the terms "collaboration" or "collaborators" are often substituted for "joint authors" or "joint authorship".
There is general agreement in 10 countries that joint authorship must be the result of collaboration such that, in viewing the final product, it will be impractical or impossible to separate
individual contributions of the work. The other four countries apparently do not require inseparability of contributions. Czechoslovakia requires that the result of the creation be an "indivisible
whole * * * even if the individual contribution can be distinguished."
The French statute simply defines a work of collaboration as a "work to the creation of which several persons have contributed." The Japanese and Mexican statutes, by way of contrast, have separate clauses or provisions mentioning both separable and inseparable contributions. In defining joint authorship, the use of variations of the word "separate" apparently has been found more satisfactory than use of such terms as "distinct" or "indistinguishable." The 1956 British Copyright Act has changed the former definition of a work of joint authorship from one reading to the effect that it consists of contributions "not distinct" to read contributions "not separate." The provision of Italy's copyright statute requiring works of joint authorship to consist of "indistinguishable" parts 103 has been criticized by one commentator who concluded that use of the phrase "inseparable parts" would, alone, suffice in defining joint authorship.
As will be illustrated by chart 4, to follow, interpretations differ as to whether or not contributions to songs, operas, cinematographic productions, and similar works, are separable.