Definition of author
Article 2(1)(ii) of the Copyright Act defines an author.
Article 2(1)(ii)
Author means a person who creates a work.
We learned in the previous section what copyrighted works are. The person who creates them is the "author".
It is not only professional creators who are authors. If a kindergarten or elementary school student draws a picture, then they are the author of the picture. If they write a letter, the person who wrote it is the author of the letter. If you subcontract the creation of a copyrighted work, such as an illustration or a computer program, the subcontractor who created the copyrighted work is the author.
Point
The author is the creator of the copyrighted work. It does not matter if such a person is a professional or amateur, child or adult!
The other day I took a picture of a drawing by a relative's kindergarten child and posted it on SNS ...
A child can be an author too, even if the child is in kindergarten. However, I do not think that a kindergarten child would be able to judge this, so you should obtain permission from the parents.
Ugh ... that was a mistake ... I'm sorry ...
Authors and copyright owners
The "author" is the person who created the copyrighted work, and the "copyright owner" is the person who holds the copyright. Basically, "author = copyright owner". However, as explained in the next section (Section 04 What is Copyright?), copyright as an economic right can be transferred or inherited, so the situation of "author ≠ copyright owner" happens sometimes. When using copyrighted works, permission should be requested for the following:
- Matters related to moral rights: obtain permission from the author.
- Matters related to copyright (economic rights): obtain permission from the copyright owner.
Moral rights and copyrights (economic rights) are explained in the next section.
Corporate works
If you create a work in the course of duty, the individual who created it may not be the author, but an organization such as a company, school, or university may be the author (Article 15). The following requirements must be met for a work to be a corporate work:
- The copyrighted work must be prepared based on the initiative of the corporation, etc.
- Creation by an "employee" of a corporation, etc.
- To be created "in the course of duty".
- When "publicizing" the copyrighted work, the copyrighted work must be published under the name of the corporation, etc.
- There is no provision in the "contract, work regulations," or any other document at the time of the creation of the copyrighted work that designates the employee as the author.
For requirement (1), if a copyrighted work is created without specific instructions from the employer but with the final approval of the employer, it is considered to be "created at the employer's initiative”. In addition, even if an employee comes up with an idea and creates the copyrighted work without the approval of the employer, if the copyrighted work is created in the course of duty as far as it is assumed to be based on the job description, it is considered to have been "created at the employee's initiative"＊1.
For requirement (2), it is generally someone who has an employment relationship. This could be an employee of a company or a staff member of a university. Temporary staff may fall under requirement (2) since they are not directly employed by the company but work under specific instructions at the client company, etc.
For requirement (3), it does not apply if the work was not created in the course of duty. For example, if an art teacher paints pictures as a hobby on their days off, they are the author of the copyrighted work, not the employer.
The requirement (4) does not apply to lectures by university professors, which are published under the name of the individual professor.
For requirement (5), if there is a contract or work regulation that stipulates that the employee or staff member is the author of the copyrighted work they created or that the copyright belongs to the employee or staff member, the copyrighted work is not a corporate work and the creator is the author.
In the case of corporate work, a corporation, etc. becomes the "author" and "copyright owner" (Articles 15 and 17(1)).
Memo ＊1
The requirement of "the initiative of the corporation, etc." is satisfied if there is an employment relationship between the corporation, etc., and the employee, and the employee is performing the prescribed duty under the business plan of the corporation, etc. or a contract concluded by the corporation, etc. with a third party, etc. even without specific instructions or consent from the corporation, etc. as long as the creation of the work is scheduled or expected in the performance of the duty of the employee (Intellectual Property High Court, August 4, 2010, HANREI TIMES No. 1344, p. 226 [Kitami Institute of Technology Case]).
Are the slides I made for a class at the university considered corporate work?
If the copyrighted work is prepared for an individual class, it will be published in the name of the professor, not in the name of the university when it is published. Since under requirement (4), the copyrighted work must be published under the name of a corporation, etc. when it is "published" does not apply, the author must be Dr. Daiin.
That's a relief.
When more than one person is the author (co-authors)
There are times when more than one person may create a copyrighted work＊2. For example, several people may create a single painting on a canvas. Such a work is called a "joint work" (Article 2(1)(xii)). The copyright in a joint work is shared by all co-authors.
Other examples include when a copyright is assigned, or when the original copyright owner dies and the copyright is inherited by two of the owner's children.
Under joint copyright, a co-owner cannot exercise their rights without the agreement of all the co-owners (Article 65(2)).
The "agreement" in Article 65(2) is that the other joint owners cannot object unless they have "justifiable grounds" to do so.
Tokyo District Court, September 28, 2000 (1999 (wa) 7209) [Economics Book Case] is one example of a case in which the other co-author was found to have "justifiable grounds" to prevent an agreement. In this case, a co-author of an economics book jointly written by researchers requested an agreement for a reprint of the book and publication of a Korean translation, but the other co-author B, refused. The court found that there were "justifiable grounds" because the book had become obsolete several years after it was written, B's contribution to the book was considerably greater than A's, and it could not be said that A would be threatened financially or that his scholarly achievements would be diminished if he was not allowed to reprint or translate the book.
Memo ＊2
Article 2(1)(xii) defines a joint work as "a work created by two or more persons whose contributions to the work cannot be separated so as to allow each part of the work to be used independently".
