Prenups Of The Copyright World? Issues To Consider In Joint Authorship & Copyright Co-Ownership Agreements

• Published date: 12 November 2021
• Subject Matter: Intellectual Property, Copyright
• Law Firm: Bereskin & Parr LLP
• Author: Ms Naomi Zener and Prudence Etkin

So, you think you want to collaborate with someone else (or more than one other person) on the creation of a potentially copyright protectable literary, artistic, dramatic, or musical work? You may think you've found the best and brightest people to work with, whose creativity vibes with yours. However, given the ambiguities in Canadian law regarding copyright co-ownership in works of joint authorship, it may be in your best interests to enter into a prenuptial agreement of sorts before you consummate your relationship and make beautiful works of joint authorship together.

The relevant sections of Canada's Copyright Act (the "Act") that speak to copyright ownership in works of joint authorship are Section 2 (definition of works of joint authorship), Section 9(1) (term of copyright in works of joint authorship), and Section 13(1) (author is the first owner of copyright). Section 2 provides that a work of "joint authorship" means a work is produced via the collaboration of two or more authors in which the contribution of one author is not distinct from the contribution of the other author(s). However, the Act itself does not define "co-authors"- even for complex works such as motion pictures - or what rights and obligations each co-author have towards each other and in the work of joint authorship.

In Canada, the legal principles of ownership in "joint tenancy" and "tenancy in common" are well established for real property, however the Act is silent on the nature of joint ownership in copyrighted works of joint authorship. However, a review of "joint tenancy" and "tenancy in common" provides insight into the manner and extent to which co-owners may own and exercise their copyright in works of joint authorship.

Copyright ownership in works of joint authorship is treated differently in the United Kingdom ("UK") as compared to the United States ("US"). Under UK law, the copyright in works of joint authorship has generally been interpreted as being owned in joint tenancy, unless modified by a written agreement between the co-creators. There is a presumption that each creator owns an equal undivided interest in the copyright and the unanimous consent of the co-owners is required to exercise exclusive rights or assign the copyright in the work.¹ In estates law, the right of survivorship dictates the automatic assignment of a joint tenant's interest to the surviving joint tenant(s) upon their death, presumably, the same would be true when copyright is deemed to be...