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Do Professional Bodies Have Control Over Copyrighted Material? – Copyright



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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:

1. Employment

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.

Conclusion

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.

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.

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