When it comes to copyright works, having clear rights of
ownership and maintaining good records are essential.
Under the Copyright Act 1994, the default position is that the
person who created the original copyright work ("the
author") is the first owner1 of rights in that
work. You create it, you own the rights in it – simple.
The position changes in two situations: first, if you create the
work during the course of your employment, in which case your
employer is the first owner of copyright in the work; and, second,
if you create the work as a result of a commission – this is
known as "the commissioning rule".
The commissioning rule applies to works such as computer
programs, paintings, drawings and photographs; it does not apply to
literary works such as articles and books.
The rule is that where a person commissions and pays or agrees
to pay for the creation of such a work and that work is made as a
result of the commission that person will be the first owner of any
copyright rights in that work. So if you commission a photographer
to take photos of your staff for your website, and you promise to
pay for those photos, you will be the first owner of copyright in
You can opt out of the commissioning rule by mutual agreement
with the person creating the work for you. This is a common
practice among creative agencies and photographers, who may have in
the past been burned by clients who promised to pay for works
created under a commissioning arrangement but who subsequently did
not pay. In such cases the agency or photographer was left not only
out of pocket but also without any rights (other than moral rights)
in the works they created. Ouch!
Maintaining good records
If your business regularly creates or commissions original
copyright works, you should as a matter of best practice maintain
an accurate record and file of your copyright works.
Your records should identify the following details as a
title of work
date of creation or modification
version number (if a modification or variation of a prior
name of the author(s) (employee or supplier)
status of the author(s) (employee's position or third party
if applicable, evidence of the commissioning arrangement (such
as a contract) under which the work was made.
If you create or commission different kinds of copyright works
you should identify those different categories of works and
segregate the works accordingly.
Maintaining good records of copyright works achieves two things:
first, it makes your life easier by enabling you to locate all your
copyright works in one place; and, second, it makes establishing
your rights in the copyright works easier if you find yourself in a
dispute involving those rights.
1A legal term to describe a person entitled to
make an application for a patent. In New Zealand
this includes any person claiming to be the true and first
inventor, the assignee of the inventor, or the
legal representative of a deceased inventor or his/her
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
James & Wells Intellectual Property, three time winner
of the New Zealand Intellectual Property Laws Award and first IP
firm in the world to achieve CEMARS® certification.
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