Mr. Shuba has [not] discharged the burden of proving that Dr. Noah made the Guidein the
course of his employment. In my judgment, Dr. Noah’s position is very similar to that of the
accountant in [a 1952 U.K. case] in relation to copyright in lectures delivered by the accountant
author, who was employed under a contract of service. It was held that the provisions of the
Copyright Act 1911 equivalent to section 4(4) did not apply. Lord Justice Denning pointed out
that it had to be remembered that a man employed under a contract of service may sometimes
perform services outside the contract. He gave the instance of a doctor on the staff of a hospital
or the master on the staff of a school employed under a contract of service giving lectures or
lessons orally to students. He expressed the view that if, for his own convenience, he put the
lectures into writing then his written work was not done under the contract of service. It might
be a useful accessory to his contracted work, but it was not part of it and the copyright vested in
him and not in his employers. Lord Justice Morris also pointed out ... that, even though the
employer in that case paid the expenses of the lecturer incurred in the delivery of a lecture and
was prepared to type the lectures as written by any lecturer, and even though it would not have
been improper for that lecturer to have prepared his lecture in the company’s time and used
material obtained from its library, it had not been shown that the accountant could have been
ordered to write or deliver the lectures, or that it was part of his duty to write or deliver them. In
those circumstances, the lectures were not written in the course of his employment. ...[E]ven if I had found that the Guide had been written by Dr. Noah in the course of his
employment, I would have found on the evidence before me that there was an implied term of
his contract of service^3 excluding the operation of the statutory rule in section 4(4) vesting the
copyright in the work so made in the employer PHLS. ...[I]t had for long been the practice at
PHLS for employees there to retain the copyright in work written by them, usually in the form
of articles, in the course of their employment there. If, for example, the articles were published
in learned journals, it was the author of the article and not the PHLS who, at the insistence of
most learned journals, assigned the copyright to the publishers of the journal in question. At no
relevant time has the copyright in those articles been claimed by PHLS. It has acquiesced in a
practice under which that copyright was retained and then assigned by the employee authors. ...
[T]his longstanding practice is sufficient material from which I can and do imply that it was a
term of Dr. Noah’s appointment as consultant that he should be entitled to retain the copyright
in works written by him in the course of his employment.C. WORKS OF CO-AUTHORSHIP
- CO-AUTHORS OF A WORK ARE CO-OWNERS OF THE
COPYRIGHT IN IT
One work may be produced by two or more authors. The question will then
arise whether one or more copyrights have arisen. For example, two authors
may pool their efforts to create one work, in which case the work has one
copyright which the authors co-own jointly in equal shares (unless there is a
contrary agreement).Alternatively, the work may be composed of two or more separate parts, e.g.,
a song comprising copyright lyrics written by one author and a copyright tune
composed by a second person. If the two elements were separately created,
the song will, under United Kingdom law, have two separately owned
copyrights.114
III. OWNERSHIP OF RIGHTS
3 [I.e., under s.4(5) of the Copyright
Act 1956; see previousfootnote. –
Ed.]