A frequent question…
Who owns the copyright?
This question comes up frequently in my practice as a copyright lawyer.
It seems to pose difficulties, because the answer may seem counter-intuitive. It, therefore, seems useful to clarify things.
The original creator
We must retain a founding and transversal principle: it is always the original creator who is the holder of the copyright.
And by the original creator, we must understand the physical person who creates the work.
Indeed, a legal person (a company, an association…) cannot strictly speak, create. The legal person will therefore never be the original owner of the copyright. To be able to hold all or part of these rights, the legal person must obtain an assignment of rights for its benefit (to be proven in writing; and of restrictive interpretation, always in favor of the original author).
Article XI.170 of the Code of Economic Law sets out this founding and transversal principle.
From this founding and transversal principle flow, all the lessons are presented below.
The employer is never the original owner of copyright! He must acquire the rights from his employees by an express assignment for his benefit (to be proven in writing; and of restrictive interpretation, always in favor of the original author).
Moreover, the only rights that the employer can acquire are economic rights (because moral rights are not transferable and always remain, whatever happens, in the hands of the original creator, in this case: the employee).
The mere existence of an employment relationship and the sole payment of a salary to the employee is therefore not sufficient to presume an assignment of copyright for the benefit of the employer. See on this subject my article entitled Copyright and employee creations: beware of misconceptions. There are a few exceptions to this principle, but they are strictly interpreted.
As summarized well by Christophe Caron, “the wage system does not hunt the authorship” (Copyright and Related Rights, 5 the ed., LexisNexis, 2017, p. 177).
The sponsor or the principal
And the one who orders a work then?
Same answer as for the employer: the sponsor or the principal is never the original owner of the copyright.
He must acquire the rights from the creator on order by an express assignment for his benefit (to be proven in writing; and of restrictive interpretation, always in favor of the original author). This assignment can only concern economic rights (since moral rights are not transferable).
The mere existence of an order relationship, an order contract and/or a price for the order (or remuneration for the creator on order) are therefore not sufficient to presume a transfer of rights. Author for the benefit of the sponsor or the client.
This principle has existed for a long time and was put in place by the legislator knowingly (Erdman II Report, p. 7).
The legislator pronouncing itself in exactly the same way for principals and sponsors as for employers indicated (Erdman Report II, p. 7):
- “The existence of a contract for the hiring out of a work or of services does not imply a derogation from copyright”;
- “The employer or the entrepreneur may obtain the assignment of the copyright” but, in order to do so, “the contract must expressly provide that these rights are transferred to the employer or to the entrepreneur”.
Beware of misconceptions! It is not because you order work that you are automatically the rights holder… Not at all! On the contrary: in the absence of an express assignment (to be proven in writing), the rights remain in the hands of the author, even if he created on order.
The publisher also needs a contract … otherwise the rights remain in the hands of the author, i.e. of the original natural person creator. This contract can only concern, as has already been said above, economic rights.
The publisher is therefore never presumed to be the owner of the copyright, nor automatically to it.
The law also provides for specific provisions (art. XI.195 to XI.200 CDE) which govern the publishing contract.
Without a contract, the publisher is illegal if he exploits the work of the original creator.
It should be noted, by the way, that in general publishing is conceived of as literary publishing (novel, comic strip, etc.). But, in reality, the edition is much broader and can concern any type of work (musical edition, software edition, video game edition…). What characterizes publishing is: the obligation for the publisher (I) to manufacture supports for the work (material manufacture; the “print”) and (ii) to disseminate or distribute these supports, and this at its own risk and expense. If the author has to pay to be “edited”, it is not a publishing contract (but an author-account contract). In addition, in general, the publisher must remunerate the author (the law even provides that the rule – unless otherwise stipulated -,
The producer or promoter
Is it different for the producer or the promoter? That is to say for the person, natural or legal, who would take the initiative of a project and its creation (often with multiple collaborations; with the help of numerous authors…). For example the promoter of a live performance or the producer of an audiovisual work?
Could we not say that since the producer or the promoter takes the initiative in the creation, he would necessarily have the copyright?
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NO! The notion of collective or directed work, i.e. work created on the initiative, financing, and control of a producer or promoter, even if it was considered when the 1994 law was drafted, was ultimately not retained in Belgian law.
Also, the producer or promoter is never the ab initio owner of the copyright and must therefore obtain these from all the people he involves in his project.
This is not illogical insofar as a producer/promoter is often in a situation similar to that of the sponsor or the principal (the only difference which exists is that the producer or the promoter will often be confronted with many more authors; consequence: he must rigorously acquire the rights of each of them – beware of oversights!).
Once again, this acquisition of copyright can only concern economic rights (moral rights always remaining in the hands of the original authors).
There is mitigation to this principle. It is to be found in audiovisual matters. The producer of an audiovisual work is, in fact, automatically presumed assignee of the economic rights of audiovisual exploitation of the work of which he takes the initiative and assumes the financing (see article XI.182 of the Code of Economic Law).
This reduction, of restrictive interpretation, was decided on because of the colossal investments which generally involve audio-visual production. There is therefore no question of applying by analogy this presumption of transfer to other areas. Thus, for example, a producer of live shows is never presumed to be the assignee of the copyrights… and must acquire them from all the authors who have contributed to the production of the show.
Furthermore, it should be noted that the presumption of transfer for the benefit of the audiovisual producer is not a presumption of ownership (the audiovisual author (s) remain the authors and rights holders; simply, the law presumes the automatic transfer of part of these rights to the benefit of the producer; which means that the latter does not necessarily have to conclude contracts). This presumption of exceptional transfer exists, in a context of very heavy investments (related to audiovisual), precisely given the rigor of the principle according to which the author is the creator natural person who creates the work…
Note that in practice audiovisual producers (practically) always sign contracts with their authors, despite the presumption of legal transfer in their favor. Why? Because the presumption of transfer is limited to the audiovisual exploitation of the work… but does not extend to other exploitations (egg derivative: merchandising, etc.). Without a contract, non-audiovisual operations, egg. Of a film, therefore remain in the hands of the authors…
We understand better, under these conditions, why audiovisual producers still sign copyright transfer contracts. The following formula, which I find excellent, from Pierre-Yves Gautier, illustrates the phenomenon well: “it suffices to read the contracts of any producer, to realize, not without surprise, that both in their own body and in large soporific and annexes are eons with meticulous details luxury rights, rights and sub-sub-sub rights transferred to the producer (always the extraordinary conservatism practice law) “ ( Literary and Artistic Property, 10 the end ., Paris, PUF, 2017, p. 654, n ° 601).
Whatever the context in which the creation takes place (commission, work, production, edition, promotion, etc.), the creator who is a natural person is always originally the holder of copyright within the meaning of our legislation.
This means that the author’s interlocutors (the employer, the sponsor, the ordering party, the publisher, the producer, the promoter, etc.) can only become the copyright holder through an express assignment (to be proven in writing), which will always be interpreted restrictively in favor of the author. Doubt always benefits the author!
Employers, sponsors, contractors, publishers, producers, promoters, etc. can therefore only be derivative owners (never original owners) and only property copyright (moral rights always remain with the original natural person creator.).
This derivative ownership can never be tacit or implied (since an express assignment is required, to be proven in writing).
Apart from a few exceptions (rare and of restrictive interpretation), these principles are constant!
Caution therefore to all those who tacitly think of acquiring copyright because of a working relationship, commissioning, publishing, production, promotion… It is a false idea, which will cause many disappointments.