Section 35(6) of the Copyright Act provides that:
"Where a literary, dramatic or artistic work … is made by the author in pursuance of the terms of his or her employment by another person under a contract of service or apprenticeship, that other person is the owner of any copyright subsisting in the work …"
The question is whether the copyright work is made under a contract of service.
This issue was addressed in EdSonic Pty Ltd v Cassidy [2010] FCA 1008.
Ms Barbara Cassidy worked with Mr Robin Lick of EdSonic Pty Ltd to adapt teaching materials Barbara had previously developed into online materials. Barbara was given shares in EdSonic and paid royalties from sales to develop the online materials.
Barbara was offered a contract with the Property Council of Australia to produce educational materials (‘the PCA materials’).
Barbara got EdSonic to enter a contract with the Property Council of Australia on her behalf. EdSonic then employed Barbara to develop the PCA materials.
Robin and Barbara had a falling out and Rick claimed ownership of the online materials Barbara had developed.
Rick claimed that Barbara was an employee of the company when she developed the online materials.
The judge held that: "the central question was not whether the author of a work was employed by the party claiming copyright at the time of creation, but instead whether the author made the work “because the contract of employment expressly, or impliedly required or least authorised the work to be made.”
The judge found that Barbara's employment contract with Rick was limited to the development of the PCA materials, and did not include the online materials. Barbara was found to own the online materials.