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Question 4

Having established that Martin and Katie own the copyright in the card (Susan’s contribution was considered too small to receive copyright protection), consider who has the rights to exploit the card?

1:  The whole group has the rights to exploit the card. Although not everyone owns copyright, everyone contributed so should be able to exploit it.

Incorrect answer: Copyright owners own the exclusive rights to the use and license to others the right to use their works. These are known as the ‘Restricted Acts’ in the Act. So any use of the card involving a restricted act can only be carried out by the copyright owner or done with their approval. If you want to know more please read Restricted Acts and Permitted Acts.

2:  Martin and Katie (the copyright owners) can use the card without constraint.

Incorrect answer: Martin and Katie cannot use the card without restraint. There would need to be a contract (agreement) between both of them and further use of the card is limited by the extent to which a licence can be negotiated with the copyright owners of the ‘third-party’ content.

3:  Martin and Katie can use the card only to the extent that they are able to negotiate licences (permissions) with the owners of copyright in third-party content.

Substantially correct answer but read answer 4 on Moral Rights.

4:  Martin and Katie can use the card only to the extent to which they are able to negotiate licences (permissions) with the owners of copyright in the third-party content and taking into account the moral rights of the author(s) of third party content.

Correct answer: Whilst Martin and Katie are the copyright owners of the entire work (the card) they do not have rights to exploit the card until they have ‘cleared’ (obtained a licence to use) the third party content included in the card. Therefore Katie’s recording of ‘Happy Birthday To You’ which included her performance (singing) would need to be cleared. Copyright in the music and lyrics of ‘Happy Birthday To You’ is likely to be held by Stevie Wonder himself (unless assigned to another company) and would need clearance. When using third party content, it is usual practice to identify third party rights owners. Note: Katie and Martin need to have a contract between them in relation to exploitation of the card - see notes referring to incorrect answer 2.

You would also need to consider Moral Rights. Moral rights give authors the right to assert that they must always be named as author and to object to ‘derogatory treatment’ of their work. Derogatory treatment includes any manipulation or editing of their work in ways that damage the integrity of the work or the reputation of the author, and extends to include setting the work in a context that may damage its integrity or the reputation of the author. For a fuller explanation of moral rights please read Moral Rights.

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Correct Answer

The correct answer is option 4: Whilst Martin and Katie are the copyright owners of the entire work (the card) they do not have rights to exploit the card until they have ‘cleared’ (obtained a licence to use) the third party content included in the card. Therefore Katie’s recording of ‘Happy Birthday To You’ which included her performance (singing) would need to be cleared. Copyright in the music and lyrics of ‘Happy Birthday To You’ is likely to be held by Stevie Wonder himself (unless assigned to another company) and would need clearance. When using third party content, it is usual practice to identify third party rights owners. Note: Katie and Martin need to have a contract between them in relation to exploitation of the card - see notes referring to incorrect answer 2.

You would also need to consider Moral Rights. Moral rights give authors the right to assert that they must always be named as author and to object to ‘derogatory treatment’ of their work. Derogatory treatment includes any manipulation or editing of their work in ways that damage the integrity of the work or the reputation of the author, and extends to include setting the work in a context that may damage its integrity or the reputation of the author. For a fuller explanation of moral rights please read Moral Rights.

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