Can A Company Be An 'Author' For The Purpose Of Copyright?

from the questions,-questions... dept

Wed, Mar 7th 2012 12:10am — Mike Masnick

Paul Keating points us to an analysis of an interesting copyright ruling in Singapore last year, which said that companies can't be "authors" for the purpose of copyright. They can be owners of the copyright, but not the authors:

The Court of Appeal drew a distinction between authorship and ownership. It held that these were not synonymous in that authorship refers to the act of creation whereas ownership refers to the possession of proprietary rights. An author is not necessarily the owner and the owner is not necessarily the author. The Court of Appeal said, definitively, that for the purposes of the Copyright Act, authors had to be living persons. To hold otherwise would run counter to other sections of the Copyright Act, notably the duration of works. The Court held that companies could not claim a perpetual monopoly of copyright ownership based on an assertion of authorship.

The specific case involved horse-racing tables and a dispute between two different horse-racing magazines, with one accusing the other of copyright infringement. Oddly, both magazines seem to admit that the actual data originated from neither magazine, but from the same third party: the Singapore Turf Club. Still, there appears to have been some questions about the layout and design, which could be given some level of copyright protection -- but, apparently, only if it were created by "living humans."

While this specific case may not be all that interesting, it does raise some interesting questions in other areas. For example, there is a growing niche industry of "automated" books being created for sale on Amazon. Many of them take things like public data and compile them into an ebook for sale. There wouldn't be any copyright on such public data, but if something similar was done with some creative input from an automated system, it seems like a rather reasonable argument can (and should!) be made that those books are public domain. I guess it's the automated equivalent of the monkeys taking photographs, where it seemed clear that those, too, were in the public domain, because they weren't created by humans...

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Filed Under: authors, automated creations, copyright, humans, public domain, singapore

36 Comments

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Lorpius Prime (profile), 7 Mar 2012 @ 12:34am

Hmmm, but how do you define "automated" in this context? Perhaps I'm misunderstanding the conclusion, but it seems to imply that if I create an algorithm or some other "automated system" that can in turn produce creative works, then those end products should automatically be in the public domain.

The examples coming to my mind are visual art; like if I design a program that produces aesthetically pleasing fractal images without any input other than some publicly available string of numbers (like weather data or something). Should I not be able to claim copyright on those images?
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Rikuo (profile), 7 Mar 2012 @ 12:48am

One wonders why Disney et al never thought of this...instead of Disney going up the Hill every 30 years or so to extend copyright, just have it so that as long as Disney exists, it has copyright on all its works.
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Anonymous Coward, 7 Mar 2012 @ 1:14am

Re: One wonders why Disney et al never thought of this
Oh, probably this pesky little thing called "the constitution".

Bu don't worry, I'm sure they are figuring out a way to get rid of it even as we speak (or at least make it irrelevant to their power grabs).
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Anonymous Coward, 7 Mar 2012 @ 3:03am

Feist doesn't apply outside the US -- and several other nations have "sweat of the brow"-style provisions. Meaning, in some nations, work is enough to merit copyright protection, without the US requirement of originality.
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Anonymous Coward, 7 Mar 2012 @ 3:58am

what does this do to copyright work generated by computer programs.

Ie fractal art.
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Anonymous Coward, 7 Mar 2012 @ 4:47am

Defining creator of a collaboration
I posed a question late in the discussion of the article about termination rights (which of course is why authorship is important). How do you legally define the overall creator of a collaborative work? Is it the person with the most control over the creative process such as the director of a feature film or is it the person with the initial idea for the concept of the creation. If it's the former then in this case I would agree with Mike here. Since it is the public that has the general control over the content it would have to be in the public domain. However, if it is the latter then it would be the person who had the idea for setting up the environment that allowed the public to contribute to the work.
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Anonymous Coward, 7 Mar 2012 @ 4:54am

Re: Defining creator of a collaboration
Sorry I didn't include the link...

http://www.techdirt.com/articles/20120302/03503317944/emi-sneakily-trying-to-pretend-many-its-artist s-cant-reclaim-their-copyrights.shtml
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Melissa Ruhl (profile), 7 Mar 2012 @ 5:07am

Re: Defining creator of a collaboration
That's a very interesting and complicated question. In the video game industry, I think the issue is complicated even further by the fact that there isn't often the equivalent of a director overseeing the project. Of course, if the individual engineers or artists or designers creating the game retained a tiny bit of IP from each game, there could be logistical nightmares when an individual leaves the company in the middle of a project...Maybe the best companies give their employees a little bit of ownership over their IP? But what would "a little bit of ownership" look like legally?

Huh.
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Anonymous Coward, 7 Mar 2012 @ 5:09am

Re: Re: One wonders why Disney et al never thought of this
Corporate personhood seems the easiest approach. If an author must be a person, and corporations are legally people, why can't a corporation be the author?
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Melissa Ruhl (profile), 7 Mar 2012 @ 5:11am

Re:
There is a difference between tools and product. You would have copyright ownership over the tool you have created, but not every instantiation of that tool in the works of others. Assuming you either ask people to buy or borrow your tool with recognition, you maintain ownership over your tool while they utilize it to better their project.
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Ed C., 7 Mar 2012 @ 5:33am

Re: Re: Defining creator of a collaboration
Unless it's a volunteer project, a game would have a "work for hire" copyright, which is usually 95 years under US law.

Also, game design projects of any appreciable size do have directors. Someone has to decide the design and flow of the game. What goes in and what doesn't. A small group might have "design by committee", but with 20 people or more, chaos is all but guarantied.
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Stephan Kinsella (profile), 7 Mar 2012 @ 5:39am

US law is different
In the case of a work for hire, the employer (which is usually a company) is the author, under US copyright law. What would happen in the case of automated or animal-based "creation" ... who knows.
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Anonymous Coward, 7 Mar 2012 @ 5:47am

Re: Re: Re: One wonders why Disney et al never thought of this
If you sit thru the credits for movies and tv shows you'll see a notice along the lines of "For the purposes of copyright, (insert corporate name) is the author of this work of fiction".
Comic book companies (Marve/DC/Image, etc.) claim the copyright on any work done for them (except licensed comics like Star Wars, which list their corporate owners as the copyright holder or creator-owned projects like HellBoy.)
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Andrew (profile), 7 Mar 2012 @ 5:49am

Re: Defining creator of a collaboration
I can't speak for other countries, but in the UK the director and producer are jointly given the copyright in a film, unless of course they are under a contract that says differently. Though probably pragmatic, it's worth contrasting this with still photography: a lone photographer is assigned the copyright for her pictures, whereas a DP or camera operator working with a director receives none, despite giving similar creative input and expression based on her expertise.
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Anonymous Coward, 7 Mar 2012 @ 5:57am

Re: Re: Defining creator of a collaboration
In England, the "moral rights" aspect of copyright makes such distinctions difficult, but not impossible.

Terry Nation created The Daleks as part of his work-for-hire assignment to write scripts for the Dr Who tv series.
Whenever the BBC uses The Daleks in the show or licensed products, Nation's estate (he passed away several years ago) gets paid.
In addition, Nation issued a number of products (including books, comics, and toys) featuring the Daleks (but NOT any other element of Dr Who continuity), and even tried to sell a Daleks tv series to American tv networks (who turned it down due to budget constraints) in the 1960s.

Since then, the BBC's in-house producers and script editors create their characters, then assign them to scriptwriters.
You'll note they rarely bring back "classic" aliens and characters, since they have to pay the original authors (or the estates) for their use.
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Andrew (profile), 7 Mar 2012 @ 6:22am

Re:
Some more examples are solutions created through evolutionary algorithms, like this antenna for NASA's Space Technology 5 mission (paper), created using genetic programming. The evolved design apparently had higher gain and more uniform coverage than a conventionally designed antenna - the outcome was something commercially valuable.

The UK Copyright, Designs and Patents Act assigns copyright in computer generated works to the person who made "the arrangements necessary for the creation of the work", though this interesting Duke Law & Technology Review article argues it's not always obvious what that means, or whether it's the right approach. It also talks extensively about Mandelbrot sets. :)
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BentFranklin (profile), 7 Mar 2012 @ 6:30am

The line between human-created and automated is very vague and I wouldn't be too quick to hang any policy on it. For example, if I use Photoshop to create a new piece of art and I use the spray-paint or air brush tool, there is automation in the selection of which pixels get which color. The use of auto-tune that is prevalent in pop music these days also obviously has a strong algorithmic component. CGI effects in movies also come to mind. I'm sure in a few minutes anyone could come up with dozens more examples of such mixed human/automated creations.
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Anonymous Coward, 7 Mar 2012 @ 6:37am

Re: US law is different
Taking the law on it's face, although work for hire applies to the individual contributions to the collaboration, unless the overall creator is an employee of the company, work for hire should not apply. Whether or not the relationship between the creator and the company constitutes work for hire has no bearing on who the creator is, however it is important in determining if termination rights for that creator exist.

Furthermore, movie studios by their own admission often recognize that they consider the director to be the overall creator when they publicly market a film as "a film by ". The fact that they put in the fine print at the end of the credits "author for the purpose of copyright" should have no legal bearing. What the hell is that? Either you created something or you didn't. It's like sort of like being "kinda pregnant." "For the purpose of copyright" is nothing more than a transparent attempt to subvert the law and deny the creator his rightful termination rights.
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Anonymous Coward, 7 Mar 2012 @ 7:02am

So now you're anti-simian? You don't think monkeys have rights? I'm going have a talk with PETA aobut that.
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Anonymous Coward, 7 Mar 2012 @ 7:14am

Re: Re: Re: Re: One wonders why Disney et al never thought of this
See my other comment below...

"'For the purpose of copyright' is nothing more than a transparent attempt to subvert the law and deny the creator his rightful termination rights."
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tracker1 (profile), 7 Mar 2012 @ 7:15am

It's very simple...
A corporation creates nothing... A person, or people, do.

I do not understand the concept of corporate owned copyrights... Perpetual exclusive license to distribute assigned to a company, but not ownership. To that effect, work for hire should default to the person/company who paid for said work to have assumed to have such a license, unless otherwise stated via contract.

I'm tired of corporate person-hood, so long as any company/industry is considered "too big to let fail." or fall, or die. The rules for a non-living entity should emphatically not be the same as a person.
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Anonymous Coward, 7 Mar 2012 @ 7:26am

Re: It's very simple...
As I said in my comments on the previous article, initial copyright ownership ALWAYS belongs to the creator. This is FUNDAMENTAL to the very concept of copyright. Due to contractual obligations it may be automatically transferred to another owner as soon as it is created and unless it meets the legal definition (a VERY SPECIFIC definition at that) in the U.S. termination rights for that ORIGINAL owner exist. That's what the law says.
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Anonymous Coward, 7 Mar 2012 @ 7:27am

Re: Re: It's very simple...
oops! meant legal definition of work for hire. sorry.
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TtfnJohn (profile), 7 Mar 2012 @ 9:21am

Re:
If you use Photoshop to touch up or alter a photo you're using a tool regardless of the high level of automation PS now has to do touch up and other work. Ultimately you, the human, are in control.

Auto-tune is another tool that the producer of a song in conjunction with technicians recording and "correcting" the piece are in control over decisions like when where and how to use auto-tune so ultimately the technology isn't making the decisions itself one or more human beings are.

To date, as far as I know, there isn't a computer program out there that can independently create without human input of some kind or another, even if it's just a little.

For now, at least, a living, breathing, organic, analogue human would hold the copyright in my view. That may change but we're a long way from an "I Robot" world as envisioned by Issac Asimov (NOT that crappy movie) but then things move so quickly these days you can never tell.
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Anonymous Coward, 7 Mar 2012 @ 9:38am

I think the problem here is that the courts may have taken an extremely narrow view, and perhaps didn't give enough weight to the idea that the author's rights include the rights of assignment.

The ruling suggests that someone writing an article for a magazine on work for hire would be the only one with a valid copyright on the material, and the magazine that paid for the work could not hold it. That seems pretty silly on it's face.
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Anonymous Coward, 7 Mar 2012 @ 10:18am

Re:
Please dont or they will kill the monkeys
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Anonymous Coward, 7 Mar 2012 @ 10:26am

Re: Re:
PS: www.petakillsanimals.com
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Anonymous Coward, 7 Mar 2012 @ 1:45pm

I hope not, since life + 95 years would mean immortal entity + 95 years.
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Melissa Ruhl (profile), 7 Mar 2012 @ 2:01pm

Re: Re: Re: Defining creator of a collaboration
Yeah, definitely larger games/developers do have directors often. But it is significant that with the boom of the mobile gaming market the norm is increasingly studios with 10 or fewer people. I'm not sure, however, if the necessary corollary is chaos.
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Paul Keating, 8 Mar 2012 @ 3:36am

Re: Automated creation is not creative
No you would not. You would have the ability to copyright the underlying software code for the program but if you then use the program to automatically create content - however pretty - it is being created by the program without any creative input on your part.
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Paul Keating, 8 Mar 2012 @ 3:38am

Re: Re: Re: Re: One wonders why Disney et al never thought of this
There is a difference between "creator" (must be human) and owner of the copyright (which can be anyone provided there has been a "creator".
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Paul Keating, 8 Mar 2012 @ 3:45am

Re: Defining creator of a collaboration
2 things:

1. The right of termination is NOT why authorship is important. The Human involvement is fundamental to the entire purpose of copyright - the advancement of..... The termination rights were intended to compensation the creator from having essentially sold the rights at an undervalued price.

2. In collaborative works the rights are held by each of the collaborators (limited to those having a substantive input in the creation). The rights are held by the group but if I remember correctly, each has the right to manage the rights bundle subject to (a) the obligation to account for profits and (b) any State partnership laws that may apply due to the collaborative effort (a joint activity undertaken with the intent to share benefits and costs is a partnership by definition).

Hope this helps.
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Paul Keating, 8 Mar 2012 @ 3:50am

Re:
You miss the point that to have the copyright, the work must have been created by a human. Once created, the copyright (the rights to prohibit others from use, etc) can THEREAFTER be assigned to anyone, including a corporation.

In the US the defaults are:
Works for hire (by employees) are created by the employee but automatically assigned (by operation of law)to the employer.

Works created by independent persons (non-employees) are created by the author but absent a written contract to the contrary, there is no transfer of the ownership in the copyright. The person paying for the work obtains a non-exclusive license to use. The author retains all ownership.

In the Singapore case, the corporation who "claimed" ownership could not identify any human creator. As a result, the court found that there could not be any copyright to "own" since the missing foundational requirement of a human creator prevented the copyright from having arisen in the first place.
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Anonymous Coward, 8 Mar 2012 @ 6:41am

Re: Re: Defining creator of a collaboration
1. Ok I'll amend my previous statement. Termination rights are ONE of the important reasons why authorship is important.

2. So you are saying that in a collaboration all of those with substantial input share ownership as a group of the overall work and therefore the group is considered the overall creator? If that is the case, how do termination rights apply to this? Do they simply not exist for a collaboration because it's a collaboration or do they have to act with a consensus as a group to exercise those rights?
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Anonymous Coward, 8 Mar 2012 @ 6:49am

Re: Re:
"Once created, the copyright (the rights to prohibit others from use, etc) can THEREAFTER be assigned to anyone, including a corporation."

My point EXACTLY.
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Anonymous Coward, 8 Mar 2012 @ 7:17am

Re: Re: Automated creation is not creative
However I would argue that the implementation of that code does not exist without human interaction at some level and that implementation would constitute creative input. Simply installing the software and executing it to start the process that created the images would constitute authorship.
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