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Collaborative creativity: who owns the creations?

If you can share a lift or a flat, why not share something intangible such as your creativity? And because the fruits of that creativity are intangible and can be shared amongst the collaborators, it will be important for the collaborators to be clear on who owns those fruits and who can use them.

October 2015

For the purpose of this piece, we are considering remote collaborative creativity which takes place through an online platform, whereby strangers find each other and work on a common project with the view that the project is to be used by one or all of them, possibly in response to a commission. This description demonstrates the potential pitfalls of not arranging the ownership position appropriately. If each co-creator owns part of the creation or a share of the whole, it could make it very difficult to use the creation freely, license it to third parties and to prevent unauthorised uses. One role of the platform could be to set the rules of engagement, or give creators and commissioners the opportunity to choose those rules, so that the ownership position can be established and understood by the participants. This way, the creativity can take place on terms that work for all parties, including the platform.

Taking the position of the platform first, while it can set the rules of engagement, it will normally be prudent for the platform to avoid owning the creations or being involved in the transfer of title between the collaborators other than by setting the rules. The platform can better protect itself from potential liability for the content of the creations if its role is limited to allowing the collaborators to meet and create together. This means that a sensible contractual structure could be for two sets of agreements to be used. The first would be between the users (i.e. user generated contentcollaborators) and the platform, which would set out the terms one would commonly expect to see between a platform which facilitates the creation of and hosts user generated content. The second, which is the more important agreement for present purposes, is the agreement between the collaborators (amongst themselves) and with the commissioner where there is one. The platform's role in the second type of agreement is to create the opportunities for the agreement to be understood and concluded between all of the parties, rather than to be a party to it. Along the user journey of the collaborators there will be various touch points (e.g. on sign up and submission of the content) at which the collaborators can become aware of the terms they are agreeing to and then actually agree to them.

For present purposes, the key terms of this agreement will be those which establish who owns what and when that ownership takes effect. Imagine a commissioner of a project with a large number of collaborators; the last thing the commissioner would likely want is for there to be lots of different owners of the copyright in the project and for him not to own that copyright (given copyright in this situation is likely to be owned, subject to an agreement to the contrary, by the creator rather than the commissioner). It will, therefore, be important that the agreement clearly and effectively establishes that the commissioner owns the copyright, ideally, for the commissioner, immediately on the copyright being created. If not then, at least when the price for the commission has been paid. It will also be important for the platform to arrange the contracting process so that the collaborators can digitally 'sign' the agreement, in order to comply with the UK formalities on assigning UK copyright.

A complete transfer of the copyright to one of the collaborators or the commissioner may not, however, always be appropriate or acceptable to the collaborators. In those circumstances, it may be helpful for the platform to make a menu of options available to the parties, which may for example, include a time-limited exclusive licence or a perpetual non-exclusive licence. The platform may also wish to allow the parties to enter intoassign rights their own bespoke arrangements for assigning ownership and could build functionality into the platform to allow that to happen. If collaborators do assign their rights to a commissioner, it may be desirable for the commissioner to grant a limited licence back to the collaborator. How extensive that licence is will depend on the circumstances; it may be enough for the collaborator to be able to reference the project as an example of the work that he has been involved with. In other circumstances, a collaborator may even be entitled to use the project for his own purposes. What will be important to bear in mind, however, is that it will normally be prudent and practically convenient for all the parties to be engaging with the project on the same terms.

There is unlikely always to be a meaningful opportunity for the commissioner and co-collaborators to do proper due diligence on any individual contribution. One way of guarding against the risks presented by this vulnerability is to use and prominently communicate the platform's expectations as to the nature of the collaborators' contributions. These will include the usual warranties and assurances regarding, for example, non-infringement and ensuring that the work is the collaborators' own original work and does not include any material from third parties.

The pitfalls of not aligning the ownership of collaborative creativity with the interests and expectations of the collaborators and commissioners are obvious but there are relatively straightforward steps that can be taken along the creative journey to ensure that the copyright ends up in the right hands.

If you have any questions on this article please contact us.

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Adam Rendle

Adam discusses ways of collaborative creators ensuring that the rights in their creations are owned in the right place.

"The pitfalls of not aligning the ownership of collaborative creativity with the interests and expectations of the collaborators and commissioners are obvious but there are relatively straightforward steps that can be taken along the creative journey to ensure that the copyright ends up in the right hands"