http://ipkitten.blogspot.com/2017/12/judge-hacons-10-1-commandments-on-joint.html

Judge Richard Hacon
In the Florence Foster
Jenkins
decision, as discussed here, Hacon J gave a useful summary of UK
copyright law on the issue of joint authorship. The summary, as set out in
para.  54 of the judgment, almost reads
as Hacon’s ‘10 commandments’ on joint authorship under UK copyright law:

“(1) A party will be joint owner of the copyright in a work only if he
or she (or in the case of a company, its employees) collaborated in the
creation of the work. The collaboration must be by way of a common design, i.e.
co-operative acts by the authors, at the time the copyright work in issue was
created, which led to its creation.

(2) The contribution of each
author must not be distinct from that of the other author or authors.

(3) Contributions by a putative
joint author (including those done by way of collaboration) which formed no
part of the creation of the work are to be disregarded in the assessment of
joint authorship.

(4) No distinction is to be drawn
between types of contribution that did form part of the creation of the work.
In particular, there is no distinction which depends on the kind of skill
involved in making the contribution.

(5) The contribution, assuming it
is relevant to the assessment of joint authorship, must be sufficient. This
depends on whether the contribution constitutes a substantial part of the whole
of the work in issue.

(6) That will be the case if the
contribution would be protected by copyright in the work. Thus, if the
contribution alone were copied by an unlicensed third party and such copying
would result in an infringement of the copyright, the contribution constitutes
a substantial part of the whole.

(7) The test of substantiality in
the context of joint authorship of copyright, as in the context of
infringement, involves a qualitative as well as quantitative assessment. 

Criticism and suggestions
do not amount to joint authorship


(8) Suggestions from a putative
joint author as to how the main author should exercise his or her skill – for
instance by way of criticism or editing of a literary work – will not lead to
joint authorship where the main author has the final decision as to the form
and content of the work.

(9) It is thus relevant, but not
decisive, whether an author is the ultimate arbiter as to the content of the
work.

(10) If joint authorship is
established, the court may apportion ownership of the copyright.”

An 11th commandment
can be found a little later in the decision, in relation to contradictory
evidence about ‘who did what’ during the creative process. In para. 61, Hacon J advises the
following:  

[11] “place little if any reliance at all on witnesses’ recollections of
what was said in meetings and conversations and instead … base factual findings
on inference
s drawn from the documentary evidence
and known or probable facts seems to me appropriate to the present case.

The relevant
case law for commandments 1 to 10 seems to be:




And for the eleventh:





Isn’t  it nice when copyright feels easy? 

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