Joint ownership (also called co-ownership) of copyright may arise by operation of law in a variety of situations such as joint ventures, software development, artistic collaborations and shared research. Copyright can be jointly owned but joint ownership brings significant complexities.
Without an express agreement to the contrary between co-owners, joint ownership only allows the co-owners to exploit the jointly held copyright themselves. Co-owners are not permitted to assign (i.e. transfer) or licence the right to carry out activities to third parties without the consent of the other co-owners if that would infringe the copyright of the co-owner.
Therefore at the outset of any project, transaction or collaboration where joint ownership of copyright might arise, co-owners should consider what rights each co-owner should have to:
- Exploit the copyright itself.
- Grant licences of the right to others (for example the sale of software licences in a jointly developed product)
- Assign the right (for example selling the entirety of business which uses jointly owned copyright in its products or business processes).
- Pursue third parties for infringement of the right (this can be a real problem when one of the joint owners leaves the business or the parties fall out and the business needs to take action to stop infringement)
A particular problem can arise in the context of software development where a third party such as a self-employed consultant contributes toward development of the product but the business does not address the question of the consultant’s ownership of copyright. The default position is often that the copyright is owned jointly, even where the consultant has no ongoing part in the business.
The best way to address these problems is by entering into a written agreement as early as possible, ideally before work starts. This should not just address the question of ownership but include rights to licence, assign and enforce.
