The body corporate as author of a copyright protected work

Author: Ankur Gupta

Pioneers & Leader (Publishers) Ltd v Asia Pacific Publishing Pte Ltd [2010] SGHC 211

citation: Journal of Intellectual Property Law & Practice (2010) doi: 10.1093/jiplp/jpq175, first published online: November 24, 2010

The Singapore High Court (SGHC) expanded the scope of authorship under Singapore's Copyright law, holding that there is nothing in principle to prevent an incorporated body being deemed the author of a copyright protected work.

Legal context and facts

Probably one of the best-known and most widely applied legal fictions in the world of commerce is that a corporation is a legal person as opposed to a natural person. The limits of this legal fiction are determined by special legal framework and a body of law that bestows the corporation with legal personality.

One of the key issues in the present case was whether an incorporated company, a separate legal entity under Singapore Company Law, can be the author of a work in which a copyright subsists. This issue determined the outcome of the copyright infringement action by Pioneers against the defendant, Asia Pacific Publishing Pte Ltd (APP), in a horse racing publication entitled Punter's Way.

The dispute arose as a result of APP's attempt to undermine Pioneers' case. APP argued that copyright did not subsist in the work, as Section 27 of the Singapore Copyright Act allows only natural persons, as opposed to an incorporated entity, to be considered as the author of copyright protected works. In support of its contention, APP reasoned that granting an incorporated entity a right to found its title to a copyright protected work on the basis of authorship would be contrary to public policy as it would lead to an indefinite perpetual copyright term.

The Act is silent on whether an author of an original work in which a copyright subsists must necessarily be a living person. The SGHC was not persuaded by APP's assertion as regards public policy: the learned judge analysed the Act and concluded that it provided no guidance on the issue.

Looking however towards precedent for guidance, the SGHC referred to Alteco Chemical Pte Ltd v Chong Yean Wah (trading as Yamayo Stationery Manufacturer) [1992] 2 SLR (R) 915, from which one could infer that an incorporated company could be the author of a copyright protected work in certain circumstances. In Alteco, also a decision of the SGHC, the circumstances before the court made it impossible to identify a single person who could lay a claim to the copyright in the final work. Accordingly the only author who could lay a rightful claim to copyright in the final product was Alpha Techno-Japan, the company which had arranged and paid for the creation of the copyright protected work.

Whilst the Alteco court did not expressly declare that an incorporated company (as opposed to a natural person) was legally capable of being an author of a work, the implication drawn from Alteco by the SGHC in Pioneers was to that effect.

Finding in favour of Pioneers on the issue of authorship, the SGHC referred to Section 131 of the Act, which enshrines a presumption in relation to authorship of a copyright protected work. Applying this provision the SGHC held Pioneers to be the author since its name appeared in all editions and issues of the work. Under that section 131 the burden of rebutting the Section 131 presumption fell upon APP. The SGHC found that, on the evidence, APP failed to rebut this presumption.

Analysis

Subsequent to this decision, the issue of whether an incorporated company is legally capable of being identified as the author of copyright protected work was addressed in the Australian decision in Fairfax Media Publications Pty Ltd v Reed International Books Australia Pty Ltd [2010] FCA 984). The Federal Court of Australia (FCA), in Fairfax, held a corporation to be incapable of founding its title on authorship. The FCA, on the authority of two decision of the High Court of Australia (HCA) Nine Network Australia Pty Limited v IceTV Pty Limited [2009] HCA 14 and Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479, opined that for a corporation to own copyright, it must enlist ‘human agencies’ and there should be evidence of employment that the work was compiled or written in the course of such employment.

Both the HCA and the FCA recognized the involvement of ‘human agencies’ as a sine qua non for a corporation to found its title to a copyright in a work. This commonsense approach is consistent with the general principle that, while an incorporated body is a distinct legal entity, it nevertheless carries out its objectives and functions through human agencies. In contrast, the SGHC in Pioneers relied heavily on the reasoning in Alteco in concluding that an incorporated body can be the author of an original work. The Alteco judge, at [25]–[26], reasoned that:

In those circumstances where it would be impossible to identify a single person who could lay a claim to the copyright of the final work, common sense and the principles of common law as well as equity (constructive trust) and equity combine to hold that the only author who could lay a rightful claim to copyright in the final product was Alpha Techno-Japan.

Alteco does not elaborate on the principles of common law and equity referred to here, which vest authorship in a work protected by copyright to a body corporate.

While the Act does not define or elaborate ‘author’, the SGHC interpreted the statutory silence in Pioneers as the lack of statutory restrictions on recognizing an incorporated body as being an author in a copyright protected work:

there is nothing in principle which would prevent an incorporated company from having authorship in a work (at [31]).

The legal basis for this finding is not identifiable here. As the Act is silent on the scope of the concept of author, the legal basis for interpreting ‘authorship’ to include an incorporated body is clearly not to be found in it.

As copyright is a statute-based right, it follows that is where the scope of ‘author’ of a copyright protected work ought to be found in the relevant copyright legislation. The SGHC however strayed beyond the four corners of the Act in finding that a company may, legally, be an author of a work.

Practical significance

This decision will be welcomed by corporations, especially those involved in the business of publishing compilations, databases of information etc where the final literary work is the product of efforts of several individuals including contractors, agents and employees. A corporate entity may now assert authorship over a work subject to any contractual arrangements affecting the scope of the copyright in the work created.

In addition to being first owner of copyright in works, a corporate entity may also be deemed as the ‘author’ of a work protected by copyright. The decision diminishes the personal role of the ‘author’ by enabling ‘authorship’ of a copyright protected work to vest in a corporate entity.