Copyright Ownership: Who Owns What?

As a general rule, the copyright in a work is initially owned by the work’s creator, but this isn’t always the case.

Contents

• 1 What are the exceptions to the rule that the creator of a work owns the copyright?

• 2 Who owns the copyright in a joint work?

• 3 Can two or more authors provide contributions to a single work without being considered joint authors for copyright purposes?

• 4 What rights do copyright owners have under the Copyright Act?

• 5 Can a copyright owner transfer some or all of his specific rights?

What are the exceptions to the rule that the creator of a work owns the copyright?

Copyrights are generally owned by the people who create the works of expression, with some important exceptions:

• If a work is created by an employee in the course of his or her employment, the employer owns the copyright.

• If the work is created by an independent contractor and the independent contractor signs a written agreement stating that the work shall be “made for hire,” the commissioning person or organization owns the copyright only if the work is (1) a part of a larger literary work, such as an article in a magazine or a poem or story in an anthology; (2) part of a motion picture or other audiovisual work, such as a screenplay; (3) a translation; (4) a supplementary work such as an afterword, an introduction, chart, editorial note, bibliography, appendix or index; (5) a compilation; (6) an instructional text; (7) a test or answer material for a test; or (8) an atlas. Works that don’t fall within one of these eight categories constitute works made for hire only if created by an employee within the scope of his or her employment.

• If the creator has sold the entire copyright, the purchasing business or person becomes the copyright owner.

Who owns the copyright in a joint work?

When two or more authors prepare a work with the intent to combine their contributions into inseparable or interdependent parts, the work is considered joint work and the authors are considered joint copyright owners. The most common example of a joint work is when a book or article has two or more authors. However, if a book is written primarily by one author, but another author contributes a specific chapter to the book and is given credit for that chapter, then this probably wouldn’t be a joint work because the contributions aren’t inseparable or interdependent.

The U.S. Copyright Office considers joint copyright owners to have an equal right to register and enforce the copyright. Unless the joint owners make a written agreement to the contrary, each copyright owner has the right to commercially exploit the copyright, provided that the other copyright owners get an equal share of the proceeds.

Can two or more authors provide contributions to a single work without being considered joint authors for copyright purposes?

Yes. If at the time of creation, the authors did not intend their works to be part of an inseparable whole, the fact that their works are later put together does not create a joint work. Rather, the result is considered a collective work. In this case, each author owns a copyright in only the material he or she added to the finished product. For example, in the 1980s, Vladimir writes a famous novel full of complex literary allusions. In 2018, his publisher issues a student edition of the work with detailed annotations written by an English professor. The student edition is a collective work. Vladimir owns the copyright in the novel, but the professor owns the annotations.

What rights do copyright owners have under the Copyright Act?

Copyright grants a number of exclusive rights to copyright owners, including:

• reproduction right — the right to make copies of a protected work

• distribution right — the right to sell or otherwise distribute copies to the public

• right to create adaptations (called derivative works) — the right to prepare new works based on the protected work, and

• performance and display rights — the rights to perform a protected work (such as a stage play) or to display a work in public. This bundle of rights allows a copyright owner to be flexible when deciding how to realize a commercial gain from the underlying work; the owner may sell or license any of the rights.

Can a copyright owner transfer some or all of his specific rights?

Yes. When a copyright owner wishes to commercially exploit the work covered by the copyright, the owner typically transfers one or more of these rights to the person or entity who will be responsible for getting the work to markets, such as a book or software publisher. It is also common for the copyright owner to place some limitations on the exclusive rights being transferred. For example, the owner may limit the transfer to a specific period of time, allow the right to be exercised only in a specific part of the country or world, or require that the right is exercised only through certain media, such as hardcover books, audiotapes, magazines or computers. If a copyright owner transfers all of the rights unconditionally (and retains nothing), it is generally termed an “assignment.” When only some of the rights associated with the copyright are transferred, it is known as a “license.” An exclusive license exists when the transferred rights can be exercised only by the owner of the license (the licensee), and no one else — including the person who granted the license (the licensor). If the license allows others (including the licensor) to exercise the same rights being transferred in the license, the license is said to be non-exclusive. The U.S. Copyright Office allows buyers of exclusive and non-exclusive copyright rights to record the transfers in the U.S. Copyright Office. This helps to protect the buyers in case the original copyright owner later tries to transfer the same rights to another party. Transfers of copyright ownership are unique in one respect. Authors or their heirs have the right to terminate any transfer of copyright ownership 35 to 40 years after it is made.

What Is Copyright Infringement?

Copyright infringement is the use or production of copyright-protected material without the permission of the copyright holder. Copyright infringement means that the rights afforded to the copyright holder, such as the exclusive use of a work for a set period of time, are being breached by a third party. Music and movies are two of the most well-known forms of entertainment that suffer from significant amounts of copyright infringement. Infringement cases may lead to contingent liabilities, which are amounts set aside in case of a possible lawsuit.

KEY TAKEAWAYS

• Copyright infringement is the use or production of copyright-protected material without the permission of the copyright holder.

• Individuals and companies who develop new works register for copyright protection to ensure that they can profit from their efforts.

• Other parties may be granted permission to use those works through licensing arrangements or buy the works from the copyright holder.

Understanding Copyright Infringement

Individuals and companies who develop new works and register for copyright protection do so in order to ensure that they can profit from their efforts. Other parties may be granted permission to use those works through licensing arrangements or may purchase the works from the copyright holder; however, several factors may lead other parties to engage in copyright infringement. Reasons include a high price for the authorized work or a lack of access to a supply of the authorized work. The United States Copyright Office is responsible for accepting new applications or claims for copyrights, which totaled 443,000 in 2020 alone. The copyrights were granted to creators of literary works, performing arts, music, and visual arts. In 2020, the United States Copyright Office generated $33 million in registration application fees. The U.S. Copyright Office defines copyright infringement as such: "As a general matter, copyright infringement occurs when a copyrighted work is reproduced, distributed, performed, publicly displayed, or made into a derivative work without the permission of the copyright owner." The Copyright Office doesn't actually prosecute those who violate copyright law but instead assists the U.S. Department of Justice (DOJ) on the court cases and the necessary legal documentation.

Copyright Infringement Issues

Copyright infringement issues have varied over the years, but with rapid advances in technology, the Copyright Office has faced a growing number of issues in an effort to keep pace with innovation.

Technology

Modern technology makes it relatively easy to copy a product or information, and some companies derive a substantial part of their revenue from replicating what other companies have created. In response, the Copyright Office established the Copyright Modernization Office in 2018. The division is responsible for coordinating IT (internet technology) modernization projects with the goal of modernizing the Copyright Office as well as the Library of Congress.

International Issues

Copyright infringement and the resulting laws surrounding protection can vary from country to country, with different options for recourse and different amounts of protection. In an international setting, it can be difficult to prove copyright ownership, and domestic courts may see the enforcement of copyright claims from international companies as a threat to national productivity. Some international organizations, such as the European Union, attempt to keep the regulations and enforcement guidelines of its member countries as harmonized as possible.

Photography and Visual Assets

With the advances in digital imagery, it's become easier than ever to copy an image. Over the past few years, the Copyright Office has been made aware of various copyright issues from photographers, illustrators, and graphic artists.

Non-Economic Rights

Not all copyright infringement results in a measurable monetary loss per se. Moral rights are enforced as well, which cover an author's right to be identified as the author of a work; called the right of attribution. Also, authors look to prevent changes or distortions of their work; called the right of integrity. 

The Internet

The growing importance of the Internet has created new obstacles for copyright holders. It is easier than ever for copyrighted materials to be accessed by companies around the world, and the creation of new technologies has outpaced the regulatory environment’s ability to ensure that copyrights apply to new formats.

Real-World Example

For example, the music industry was caught off guard by the development of online music-sharing websites such as Napster. Napster was an online music website that allowed peer-to-peer sharing of music files through their network. Customers would share or distribute music of various artists for free. Record companies within the music industry sued Napster for copyright infringement to protect their intellectual property and won their case. Napster was found in violation of copyright laws because, in part, the company knew of the widespread distribution and did not do enough to stop it. Also, the music was copied and used by customers, which was financially harmful to record companies and the sale of their music. Napster was also found to have financially benefited at the expense of record companies by allowing the copy and distribution of music. Companies seeking targets for copyright infringement claims can also go after the companies providing the files, but could also seek damages from internet service providers (ISPs) as well as individual users. In a more recent music-related copyright infringement case, in 2020, the estate of Randy Wolfe, a member of the band Spirit, claimed copyright infringement against the band Led Zeppelin. The estate claimed that Led Zeppelin had copied parts of Spirit's song "Taurus" in their song "Stairway to Heaven." The case began in 2014 but was finalized in 2020 in Led Zeppelin's favor.

How Long Does Copyright Protection Last?

Copyright protection for works created after Jan. 1, 1978, lasts for the life of the creator plus 70 years. For anonymous work, pseudonymous work, or work made for hire, copyright protection lasts for 95 years from the date of first publication or 120 years from the date of creation, whichever expires first. For works created before 1978, the length of copyright protection varies on a variety of factors.

Is Copyright Infringement Illegal?

Yes, copyright infringement is illegal. Most often copyright infringement is a civil issue rather than a criminal one. Penalties for copyright infringement usually include a fine and/or payment to the injured party.

How Do You Prove Copyright Infringement?

In some cases, copyright infringement can be difficult to prove. Steps an individual can take to prove copyright infringement has occurred is first to prove they have ownership of the copyright. The next step would be to prove that the alleged infringing individual had access to this copyrighted work, and then to prove that the original copyrighted item has been copied. If the alleged copied work is not identical or very similar to the original work, it can be difficult to prove copied elements. 

Link reservation of commerce platforms to siteevidence counterfeit?
 

The Delhi High Court has expressed its concern over the "prolific" sale of count. It is worth adding that the EU Commission publishes something similar. It is expected to report in Q4/2022 or January 2023. Its last report was in 2020 and it has started public consultations for the next report. There is a great deal of consistency between this and the USTR 2021 report published recently. Online marketplaces and E-Commerce in India have seen a phenomenal rise in recent times. This comes on the shoulders of digital development in India wherein the technological advancements have transfigured the traditional techniques of doing business into the digital space by introducing e-commerce platforms. With the combined forces of technology, competitive price offerings, exciting deals and fast delivery, e-commerce platforms have created new types of buying experiences for consumers. Consequently, India has experienced a tremendous growth in online marketplaces developed both internationally or domestically. However, with the rise of e-commerce platforms, the menace of counterfeiting has increased manifold. The problem of counterfeiting not only affects the brand-value or goodwill of a brand, but also puts the well-being of the consumer at risk through the sale and unknowing purchase of sub-standard products. 

Modus Operandi of Counterfeiters

Before the advent of online marketplaces, most counterfeiters used to operate in clandestine manner in limited areas or town. As the result of the growth of e-commerce platforms, counterfeiters have adapted accordingly: this sudden growth has enabled them to sell sub-standard and counterfeit products online to a much larger consumer-base across India under the pretence of selling genuine products of well-known brands. According to a survey conducted by the social media platform LocalCircles, 38% of consumers claimed that they had purchased counterfeit product from an online retailer in the previous years. The most commonly mentioned marketplaces names in this survey were Snapdeal (12% of consumers said they had bought counterfeits from this platform in the previous year), Amazon (11%) and Flipkart (6%). Apart from operating through e-commerce websites to sell counterfeits, fraudsters also create fake websites which look and feel like an established brand-website which consumers are familiar with. These fake websites are used by the counterfeiters to trick consumers into paying for products which will never arrive. Furthermore, this specific type of website creates a major opportunity for the hacking of credit card details through fake payment gateways. Counterfeiters in India also often operate through multiple online stores on the same e-commerce platform to disguise the size of operation. Through this method, if one store is removed because it has been found guilty of selling counterfeits, the business can continue through other stores on the same platform.

Asia's biggest e-commerce marketplaces for counterfeit goods are as follows:

1. China

AliExpress, Alibaba's international B2C sales platform, is recognised as having extensive IP protection tools, but the sheer volume of products listed allows traders (mainly drop shippers), to advertise and ship huge volumes of counterfeit goods around the world. Despite Alibaba's efforts, lax merchant vetting and weak penalties do not act as a deterrent. DHgate is a B2B cross-border e-commerce platform where bulk counterfeit orders are easy to make. DHGate claims to be making improvements but IP owners cite weak seller vetting, ineffective proactive anti-counterfeit processes, and lack of transparency as leading to high volumes of counterfeit sales. Pinduoduo, a "social commerce" app, is China's second largest e-commerce platform. IP owners complain of takedowns delays and weak takedown transparency increasingly burdensome and expensive processes, weaker seller vetting, and less cooperation through their Brand Care program as well as little follow up with offline enforcement. Monitoring the platform is difficult for overseas rightsholders as it is only available on mobile and in Chinese language. Alibaba's Taobao, the huge domestic China B2C platform, may have Alibaba's best anti-counterfeiting features and processes but is still a major source of counterfeit goods. Recent more stringent rules for takedowns have blocked IP owners' efforts, yet counterfeits are as pervasive as ever. WeChat, (in China Weixin) the instant messaging app, is increasingly a method of selling counterfeit goods, through links to images and purchase information, through livestreams sales, its Moments, Channels feature, and other communication tools. This allows large volumes of counterfeit goods to be sold on the profile pages of Official Accounts, via Mini Programs and through private direct messaging. WeChat provides integrated features such as catalogues, shopping cart, and payment processing. IP owners complain that vetting for Official Accounts and Mini Programs is insufficient, and documentary requirements not implemented. The inability of IP owners to search for IP violations, low penalties and lack of support for offline cases is also cited.

2. Indonesia

Bukalapak in Indonesia is a platform with large volumes of fake branded products, often openly labelled as "replica". Bukalapak has improved takedowns and IP owner cooperation, but suffers from weak merchant vetting, merchants being allowed to use multiple accounts or just re-register after being caught, no proactive anti-counterfeiting processes, a slow non-transparent and inefficient notice-and-takedown and limited follow up actions against infringers.

Tokopedia is Indonesia's biggest e-commerce marketplaces and suffers from freely available counterfeit goods. Recent improvements to the notice-and-takedown system and better IP owner engagement helps, but the problems are still substantial. Takedowns are too slow and insufficiently transparent; merchant vetting is weak and penalties are too low to deter.

3. Singapore/Southeast Asia

Shopee, a leading Southeast Asian (SE Asia) e-commerce platform, is headquartered in Singapore and NYSE listed but operates semi-independent country sites across the world. In SE Asia, many Shopee sites have poor, slow notice and takedown procedures. Merchant vetting is weak, repeat sellers are common and penalties are non-deterrent. Poor cooperation with Shopee for IP owners on their own investigations into infringing Shopee merchants is a major challenge in some of their country sites.

IP owner strategies

So, what should IP owners do about this? First, they have to engage at local level with the online marketplaces. This is time consuming, joining all the different platforms' IP owner programs, setting up identification verification systems and notice and takedown processes. Some international Notice Takedown companies can help with this, but rarely can they cover all these platforms due to language, identification and other reasons. Local platform engagement is therefore critical. Marketplaces need to feel more pressure from IP owners to improve their processes, transparency, vetting and cooperation. Secondly, better regulation is needed. Different countries use different ISP liability rules, so there is a lack of clarity when safe harbour arises in some countries. Indonesia's laws are a mess of 3 parallel regimes for example. EU FTAs require a full ISP liability regime, but only Vietnam and Singapore in SEA have these trade deals in place. ASEAN has started to look at the issue regionally but with slow progress. Apart from the laws, some enforcement is needed. Two options are available. IP owners must either apply for injunctions when, for example, despite repeated reports widespread and obvious counterfeit availability remains. Alternatively, authorities must pursue administrative remedies – for example over inappropriate vetting – where merchants supply false information, use multiple identities, and run schemes to avoid getting caught. Online marketplace merchant vetting is too weak worldwide. This means obtaining and making available identifiable information on merchants, just as you would have for a retail business. Far too many merchants hide behind false identities, poor documentary evidence, even fake profiles; and most marketplaces make that behaviour far too easy. Marketplace should turn this into a positive commercial benefit for consumers, that is, verified vendors get preferences to encourage good behaviour. Many organisations such as the ASEAN EU Business Council call for an ASEAN-wide Memorandum of Understanding on tackling counterfeit and pirated products. Such a MOU would build on those in Thailand and Philippines to provide a code of practice among online marketplaces, brand owners, and governments. Customs activity needs to improve generally and in certain specific ways. At present, most countries in SE Asia, with the exception of Thailand, do almost nothing to stop huge volumes of counterfeits entering their markets. First, an effective customs procedures in all major markets is needed. Secondly, there need to be specific improvements for small parcels. The ASEAN Low Value Shipment Programme has been suggested as one way to do this, if it could be improved with simpler procedures to stop illicit shipments. China needs to make specific improvements to raise the % of seizure rate for recorded brands as a way to improve its measures of success. A vital end goal is for online marketplaces to take on more of the burden of proactive monitoring and removal. Tokopedia in Indonesia claims to be developing proactive systems for this. Alibaba trumpets its AI based tools that they say blocks large number of adverts. But this is still not enough given the millions of counterfeit goods available. Real deterrence from online marketplace penalties is a key missing link. Exclusion of merchants altogether is very rare. Offline criminal prosecutions at the marketplaces' initiative or with their cooperation needs to increase significantly (at present it is so rare as to not to be meaningful at all). The balance always falls in favour of letting the merchant continue to trade and never in favour of stopping counterfeiters. The commercial challenge is that IP owners are fighting a battle with online marketplaces for resources. Marketplaces want to allow merchants to trade unfettered in any goods (despite what they say). IP owners need them to divert some of their huge billions in revenues into meaningful monitoring, vetting, ejection, investigation, and enforcement programs. This is a problem of scale. Hundreds of thousands or maybe even millions of counterfeits goods are sold daily on e-commerce platforms in Asia. Stopping 1% of them would mean tens of thousands of cases a day by all the major platforms. Most are not even doing that in a year. Some Shopee sites can take weeks to block just a few adverts! A lot more work by the IP industry is required. Industry lobbying (e.g., by INTA, local Chambers and business groups), publishing reports like those of the EU and USTR, and IP holder engagement with platforms and governments will determine how fast this problem is addressed. 

PICTURE OF INDIAN PLATFORMS

The Central government will next week release the guidelines to check fake reviews and unverified star ratings on e-commerce websites, hotels, and travel booking platforms, said Consumer Affairs Secretary Rohit Kumar Singh, as quoted by news agency PTI. Speaking to PTI, Singh said, "After consultation with stakeholders, we have finalized frameworks to counter fake reviews. The BIS (Bureau of Indian Standards) has also come out with a standard. The frameworks for fake review management will be published next week." "Initially, it will be voluntary and gradually will be made mandatory," he added. The government official also added that probably, India will be the first country to have developed frameworks for fake review management. Earlier in June this year, Singh informed that the government has constituted a committee with representatives of e-commerce firms, Advertising Standards Council of India (ASCI), CII and other stakeholders to develop the framework. The Ministry of Consumer Affairs has also stated that fake and misleading reviews violate a consumer’s right under the Consumer Protection Act, 2019. According to an EU-wide screening of online consumer reviews across 223 major websites, about 55% of the websites violate the unfair commercial practices directive of the EU which requires truthful information to be presented to consumers to make an informed choice.

Conclusion

China's platforms remain the largest and most serious IP problems for IP owners. That's no surprise given the high proportion of the worlds' counterfeits made in China (usually estimated at over 75% of counterfeit goods globally). E-commerce has made sourcing counterfeit goods so much easier whether direct to consumer through AliEpress, or in bulk through AliExpress and DHGate. The logistics and supply chain delivery systems the platforms have funded means Customs have very little chance of stopping these goods as they ship worldwide. Aliexpress' new logistics system launched in 2021 offers deliveries within 10 days through smart warehouses in China for sellers to pre-stock their products, as well as overseas warehouses to improve delivery times. Rising shipping costs and congestion when shipping by sea, as well as a customer demand for faster shipping times, has led to an increase in the number of deliveries made in smaller quantities by air, especially for smaller lighter items like clothing, luxury goods, jewellery and small electronics which are frequently counterfeited. Aliexpress alone has 80 chartered flights per week between China and Europe. This causes difficulties for Customs inspection efforts, since there are many small packages more frequently sent with many different types of goods to inspect and check on the database – in reality, only a fraction of shipments are flagged for IPR infringement risk and checked by Customs. IP holder demand for more customs activity is at an unprecedented level according to China Customs data; the number of rights (mostly trade marks) recorded with China Customs has risen to 72,328 recorded IP rights – increasing at 16% p.a. Recent policy changes by Alibaba and other platforms in China put more burden on rightsholders to 'prove' goods sold by sellers are counterfeit. This is partly due to concerns from the platforms about getting sued by their sellers. They may request, for example, where the infringement is not obvious on the page, notarized test purchases to prove the seller actually delivers counterfeit goods. Bad faith counterclaims and fake authorisation documents from sellers are common – and China's recent e-commerce law leaves rightsholders with no choice but to either allow the listing to be reinstated or engage in litigation or administrative action. Such requirements are simply not feasible for many rightsholders to complete for every single infringement they find on the platforms. Copyright infringement takedown claims are now less effective in China since the takedown only affects the specific copyright asset used and the seller can continue to sell others. The Alibaba Three-Strike and other penalty points systems in place by other platforms are ineffective, with sellers finding various workarounds such as voluntarily taking down their own listings and relisting to avoid penalties. The requirement on Alibaba platforms for Three Strikes to be within a fixed time period and a yearly reset on penalty points means that sellers are rarely banned. When they are, they can usually just set up a new account under a different ID or change platforms. It is instructive to see that the biggest platforms outside China are in Indonesia. That is, after all, the largest consumer market in the SE Asian region by a large margin. The USTR does say other countries have online counterfeit goods markets of concern and may have poor e-commerce marketplace regulation. It's not all bad news. For example, the report cites the Philippines MOU with brand owners and e-commerce platforms to improve notice-and-takedown procedure and with a feedback mechanism to help coordinate actions against online counterfeiting. Another clear conclusion from the China/Indonesia prevalence is how Indonesia e-commerce traders are sourcing counterfeit goods from China (either bulk buying from places like DHGate, or small volumes from AliExpress) and importing them without any Customs interceptions through the large logistics infrastructure for sale around Indonesia. IP owners report in almost every case that the counterfeit goods found in Indonesia come from China. Given Indonesia's e-commerce market is now many tens of billions of dollars; it wouldn't be a surprise if the e-commerce counterfeit market was now over a billion dollars in value in that country. A lot of merchants are making a lot of money from crime, while the authorities take almost no enforcement action. A clear new e-commerce infringement trend is on the rise in social commerce for counterfeit goods sales. This includes social media platforms with integrated marketplaces (e.g., Facebook is not identified in the report but is a source of fake goods in the Philippines for example). Another trend is hidden link sales, with which counterfeit sellers advertise a product on social media or image hosting platforms, using links to files with photos and purchase information (which may involve contacting a seller on Whats App or We Chat and paying through PayPal or Transfer Wise, for example).