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III. OWNERSHIP OF RIGHTS
in drawing clearly and well but that does not mean that it is only that skill and
expertise which is relevant. ...[W]here two or more people collaborate in the creation
of a work and each contributes a significant part of the skill and labour protected by
the copyright, then they are joint authors.
...In relation to authorship, it seems to me that two matters have to be addressed. First, it is
necessary to determine whether the putative author has contributed the right kind of skill and
labour. If he has, then it is necessary to decide whether his contribution was big enough. The
latter issue in particular is a matter of fact and degree...
It is common for new software to be issued to third parties for testing (so-called “beta testers”).
They are asked to report back to the programmer any faults which they detect. A good beta tester
may well spend hours in thinking of ways of testing the software and then carrying out those
tests. He may find many bugs, some of them significant. He relieves the programmer of the task
of carrying out all the tests on the software and he may save the programmer a lot of time as a
consequence. In many cases beta testers can be said to be part of the team who are responsible
for the finished software being as good as it is.
The fact that the programmer is saved time by reason of the beta tester’s efforts does not mean
that the latter is an author. Although the beta tester may expend skill, time and effort on testing
the software, it is not authorship skill. ...[I]t can be likened to the skill of a proof-reader. In all
cases it is necessary to have regard to what the time and skill was expended on. Here [counsel
for the plaintiff] says that Mr Barrett’s efforts, although lengthy and valuable, did not save any
of Mr Seedle’s time in respect of programming. ...
[T]here is no doubt that the contribution which Mr Barrett made was extensive and technically
sophisticated.... First, [Mr Barrett] put effort into error fixing and reporting faults and bugs.
Secondly, he made a functional contribution by way of setting the specification for what the
software was to do. ... Thirdly, he made a contribution by suggesting what was causing some of
the faults, but he did not produce the software solution to them. Fourthly, he provided technical
information concerning the characteristics of the hardware into which the software fitted and
with which it had to co-operate. This enabled Mr Seedle to write the I/O (in-out) software which
allowed the software to talk to the hardware and vice versa. Fifthly, he set parameters and timings
within the software. That is to say that where the software was written in a way in which
parameters and timings could be chosen by the user, he made the choice. ...
This division of labour is consistent with Mr Seedle being entirely responsible for the skill and
labour involved as author of the KEYPORT software. Although all of Mr Barrett’s contributions
took a lot of time and were very valuable they did not amount to contributions to the authoring
of KEYPORT. It follows that the assertion of joint authorship fails.
- EXERCISE OF RIGHTS OF CO-AUTHORSHIP
How joint ownership rights are exercised varies even among common law
jurisdictions. Consider the following:
D. Vaver, Copyright Law(Irwin Law, Toronto: 2000), pp. 77-80:
Co-ownership may arise not only from co-authorship but from other relationships and
transactions. For example, two or more persons may become co-owners ... if a copyright is
transferred to them jointly.
