Copyright: What is meant by "the Author"

Branwell Brontë's Self Portrait

Source Wikipedia

Jane Lambert

21 Sept 2008  Revised 29 July 2017

It is important to identify the author of a work for two reasons.

The first of those reasons is that the nationality or residence of the author may determine whether copyright subsists in a work at all. S.1 (3) of the Copyright, Designs and Patents Act 1988 ("the CDPA") provides:

"Copyright does not subsist in a work unless the requirements of this Part with respect to qualification for copyright protection are met (see section 153 and the provisions referred to there)."

If you scroll down to s.153 (1) you will find that copyright does not subsist in a work unless certain qualification requirements are satisfied as regards the author, the country in which the work was first published, or in the case of a broadcast, the country from which the broadcast was made.

The second reason why it is important to know the identity of the author is that s.11 (1) states that the author of a work is the first owner of any copyright in it, subject to various other provisions the most important of which is the following subsection which provides that where a literary, dramatic, musical or artistic work, or a film, is made by an employee in the course of his or her employment, that person's employer is the first owner of any copyright in the work subject to any agreement to the contrary.

So who is the author in this context? The person who creates the work according to s.9 (1) of the CDPA.

But note that the word "author" has a specialist meaning in copyright law.  In everyday language, we refer to the writer of a novel, article or other literary work as an "author" but we never refer to the creator of a drawing or painting, a musical score, the choreography of a ballet as an author.  Except in copyright law where the author refers to the architect, artist, choreographer, composer, computer programmer, dramatist, dramaturge, painter, poet, sculptor or some other creative person who crafted the work in question.

Not only that but

• s.9 (2) (aa) provides that author is the producer in the case of a sound recording,  
• s.9 (2) (bb) provides that the author the producer and principal director, in the case of a film;
• s.9 (2) (b) provides that the author is the person making the broadcast in the case of a broadcast (unless the broadcast is, in fact, a relay and immediate re-transmission of another broadcast in which case it is the person making that other broadcast is the author); and
• s.9 (d) provides that the author is the publisher in the case of the typographical arrangement of a published edition.

"OK but what about artificial intelligence?" I hear you say. Well, strangely enough, the CDPA was remarkably prescient on that score. For nearly 30 years, s.9 (3) has provided that the author of a computer generated artistic, dramatic, literary or musical work is the person who undertakes the arrangements necessary for the creation of the work. Back in the late 80s or early 90s I actually wrote a paper for a seminar on copyright in computer generated work but I never got a chance to deliver it because we could not raise enough interest to run the seminar as it all seemed like science fiction in those days.

What happens where two authors collaborate like Gilbert and Sullivan or Flanders and Swan? No problem if their respective contributions can be identified, The songwriter is the author of the song and the composer is the author of the music.  But what about writers of a comedy piece where each writer sets off the other in a hilarious dialogue so that it is impossible to say who wrote this gag and who wrote that?  Well, the law has an answer.  S. 10 (1) provides that a "work of joint authorship" is a work produced by the collaboration of two or more authors in which the contribution of each author is not distinct from that of the other author or authors. A new s.10 (1A) inserted by reg. 18 (2) of The Copyright and Related Rights Regulations 1996 (SI 1996 No 2967) provides that a film is automatically treated as a work of joint authorship unless the producer and principal director are one and the same person. Further, a.10 (2) of the Act provides that a broadcast is treated as a work of joint authorship where more than one person is to be taken as making the broadcast.

"I know how to stump thee." says the Yorkshireman.  "What happens if the author wants to remain anonymous because he is henpecked by the women in his life like Branwell Brontë?  "You'll have to do better than that" retorts the Lancastrian:

"S. 9 (4) provides that a work is of "unknown authorship" if the identity of the author is unknown or, in the case of a work of joint authorship, if the identity of none of the authors is known. The identity of an author shall be regarded as unknown if it is not possible for a person to ascertain his identity by reasonable inquiry. However, should the author's identity become known the authorship of the work shall not subsequently be regarded as unknown."

"Donald Rumsfeld gobbledegook" sneers the Yorkshireman sipping at his pint. But then he looks at the language of the section and finds that the lad from the dark side of the Pennines has repeated it almost verbatim.  
"Who writes this stuff?" asks Yorkie.
"Parliamentary draftsmen!" replies Lancie.
They both take a sup of ale.
"Bloody Southerners!" they say in unison as upon that they can both agree.

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