Hello, Andy,

Thank you for your detailed reply.

On Tue, 28 Aug 2007 03:32:49 -0700, Andy Dingley
>
>First of all, why are you asking this and what do you hope to achieve
>by it?
>

My friend is interested to clarify for herself her legal position in
the matter. I *told* her that all I could do was to ask the question
in this group, of experienced webmasters who may have been in or
encountered such situations, what their take on it is.

She knows that she must confirm anything with her own legal counsel.
Such legal counsel, of course, may not be experienced in internet
matters.

>It's a big mistake to go anywhere near the law without first
>understanding what you're after. What are the possible outcomes?
>What's likely? Which of these are you trying to achieve? Going to law
>from some airy-fairy idea of "justice" or "fair play" is a recipe for
>disaster!
>

Exactly. That's why she wanted to have a "good guess" before heading
into any potential conflict.

>AIUI, the author was not previously employed by the Arts Council, did
>some work that benefitted them (either "for them" or that was later
>"used by them"), they are now employed by them.
>

Well, actually she had worked for them before (under a previous
administration), left the position, and then returned *as a volunteer*
for several months last year, organizing the office and the membership
files which had been abandoned for a considerable period of time.
Then, when funds became available, she was hired as a part-time
contractor.

I'm not aware of the specific period of time in which she created /
designed the website as a volunteer.

>There are two things to be fought over here: "Credit" for having done
>some work ("moral rights", a concept that's barely recognised in UK
>law) and "copyright", the right to control the future use of this
>content.

Yes.

>The two are really separate - there's no reason why the site
>can't say "All work was done by R.J. Author, all is now copyright of
>the Arts Council" and R.J. Author may contine to cite the site as a
>portfolio example of their work, perhaps to further their career as a
>web designer.
>

Exactly. :-)

>Most copyright is commercially worthless. Most copyright is only of
>interest to one possible user, and they often own it anyway. The site
>(fine though it is) is of such specialised application that it has no
>re-sale value to any other body. It's not the ownership of a Harry
>Potter manuscript, it's not a licence to print money. Copyright is
>most commonly like this, it's only of use to one body and such
>copyright is only "valuable" if it's owned by someone else (such as a
>bespoke web design house) looking to sell it to them.
>

Thank you.

>Now in this case, either: the designer has already granted a licence
>to the AC to use their work (but the designer retained copyright). Or,
>the AC already had such control over the copyright because of how the
>work was originally done for them. Possibly (and I think not in this
>case) the designer may have owned the copyright at one point, then
>transferred it.
>

OK. Thanks for that.

>So which one of these is it? And, given the new terms of employment,
>and the fact they didn't raise this issue during recruitment, what do
>they expect to gain by trying to change things now?
>

Yes.

>If they want credit (few would argue with that), then have them assign
>the copyright, subject to an agreed wording that indicates the moral
>rights and credits them appropriately.
>

Aha! Thank you, again.

>If they want to either retain or sell the copyright, then I'd advise
>caution. It's not worth much. Its worth nothing on the open market. It
>was a worthwhile bargaining factor during recruitment (and should have
>been sold then), but _now_ it's an embarassment. If they either won't
>part with it or demand previously undiscussed payment for it, then any
>sensible employer is going to see that as a major turn-around and act
>of disloyalty by their new employee. It's just hard to see any way
>that a negotiation starting on that basis can have any useful
>outcome! They're likely to find themselves offered a derisory "Take
>it or leave it" £5 for the content copyright and permanently blight
>their ongoing employment prospects.
>

Yup, yup. :-|


>
>> We are wondering, by rights, who owns this website?
>
>By "website" do you mean the location (i.e. domain name) or the
>content ? Presumably the content, but rememebr that there is a
>distinction to be made.
>

Yes, I meant the design / content. The basic code, not the data
regarding current events and past projects.

>UK copyright law is fairly clear on this as regards content, but the
>interpretation gets awkward. If it's a "work for hire", then copyright
>was transferred immediately to the hirer by default. Whether it was
>"work for hire" or not is the question here, not the copyright itself.
>Volunteers certainly can be construed as such, it's a question of
>their engagement and direction in producing the work. If they were an
>"unpaid worker" then they certainly were. If they produced the work as
>an independent agent and merely offered the results to the Arts
>Council as a philanthropic gesture, then they weren't. Things like
>provision of office space and the computers used to design it can also
>come into play.
>

Yes! Thank you again for so carefully designating the specifics here.

>> *Can* a website be purchased? or sold? Can she sell this website, i.e.
>> the design, to the Arts Council?
>
>Certainly. However the market for such targetted websites is usually
>limited to one potential customer, who is well aware of this. If it's
>a post facto negotiation, they're likely to make a trivially low offer
>knowing that it's still the best you'll get.
>

Yes.

>> If my friend puts the Copyright thing on the website, does that
>> thereby make it the property of the Arts Council?
>
>Declarations mean nothing one way or the other, except in this case
>where they would be seen as a strong admission that the author did not
>have any claim to make over owning the copyright. Take specific legal
>advice on this case before doing so.
>
>Useful books here (UK standard undergrad texts, any library) are:
>"Blackstone's Guide to the Trade Marks Act 1994"
>Bainbridge's "Introduction to Computer Law"
>

Wow! Thank you so very much for all this. I will convey it to my
friend.

I hereby designate you as a "pro bono" consultant to the Kingston Arts
Council.

:-)

Cheers,
Mary