Do professional bodies have control over copyrighted material?
Did you know that the content of your organization’s guides, newsletters, handwritten information capsules and other materials may not belong to you? How can you make sure that you keep control over those materials?
Any materials that meet a minimum threshold of originality will be works that can be protected by copyright. When employees or subcontractors of a professional body create such materials, the issue is that Canada’s Copyright Act (“the Act”) generally recognizes the authors of the text as the primary copyright holders in such works, unless there is a signed written assignment to the professional body or a specific exception.
Whether a professional body owns the copyright or not raises a major issue in relation to the control of the material. Only the copyright holder can produce or reproduce the material or a significant portion of the material. If the professional body does not have copyright in the material it may be difficult, if not impossible, to prevent a third party from reproducing, distributing or otherwise appropriating the material for his or her own purposes.
Professional bodies usually require the creation of material for their own purposes in two specific cases:
If the person who was tasked with creating the material is bound to the organization by an employment contract and the material is created in the course of his or her duties as an employee, the Act provides an exception and the copyright holder will then be the employer rather than the author.
Both conditions must be met in order for the exception to apply. If there is any doubt as to the employment relationship or as to whether the material was created in a context other than employment (during personal time, for example), copyright may be held by the employee and not the employer.
Similarly, if the author is self-employed, a volunteer or a director of the organization, copyright will belong to the author.
2. Contract for services
If, on the other hand, a professional body retains the services of a subcontractor to create material on behalf of the organization, in the absence of a clear written contract with respect to copyright the subcontractor will be presumed to hold the copyright.
In such cases it is essential to have a clear written contract between the parties.
In all cases, regardless of the employment status of the person who creates material on behalf of the organization, it is recommended that contracts be drawn up to assign all copyright to the organization; this will avoid any ambiguity. It would be wise to include a standard clause in all employment contracts to the effect that all intellectual property – including copyright – in works created or developed by the employee in the course of employment will be assigned to the organization, unless the parties agree otherwise. Similarly, any contract with a third party should be carefully analyzed for copyright ownership clauses with regard to any material created or developed as part of the contract for services.
Since copyright ownership is first and foremost a question of fact, the only way to resolve a dispute between two parties claiming that right would be in court. If there is a clear written contract the issue will be easier to resolve, and will avoid a debate on the facts as to how the organization assigned the task of creating the disputed material.