You cannot simply do whatever you want with content on your website or in your brochure. The basis of copyright is that this right is an exclusive right belonging to the creator of a work. This is also stipulated in Article 1 of the Copyright Act. If you want to do anything with that work, you first need the permission of the creator. The creator can refuse, grant permission free of charge, or do so for a fee. The creator can also attach all kinds of conditions and restrictions to their permission. This is referred to as a license agreement.
Humans as content creators
Who the creator is, and thus holds the rights to a work, is sometimes a subject of debate. A human can certainly be the creator. But can an animal be too? That question was previously raised during the so-called Monkey selfie copyright dispute, a dispute that went through various courts and organizations and dragged on until 2018.
Monkey selfie copyright dispute: can an animal be the creator of content?
In 2011, British photographer David Slater was working on Sulawesi, an Indonesian island. Suddenly, a black macaque stole one of his cameras and took a number of selfies. Later, the photo was published by Wikimedia. Wikimedia only publishes photos that belong to the public domain and are free to use, for example because the photographer donated them or because the rights to the photo have expired. David Slater objected to the use of “his photo” and took the matter to court.
In this case, various judges had to answer several previously unasked questions regarding copyright. According to the judge, David was in any event not the creator of the photo, because he had not pressed the button. To create content, some form of human labor must be involved. And that was not the case here.
In 2015, the animal rights organization PETA filed a lawsuit. They wanted to prove that the monkey Naruto was the creator of the photo. In doing so, PETA sought not only to set a legal precedent but also to generate additional revenue. At the same time, they asked the judge to appoint PETA as the administrator of the monkey's assets and, consequently, of his income. The judge ruled that a monkey cannot be a copyright holder, but PETA appealed. Ultimately, a settlement was reached that was acceptable to everyone. It was agreed that Slater, as the copyright holder, would receive 75% of the income, and that 25% of the income would flow to PETA.
A human maker or various makers
In any case, this case demonstrates something important: the maker is, in principle, a human being. It is a human being who provides the creative labor and makes the creative choices. He does not leave those choices and that labor to a black macaque, a gray elephant, or a red panda, but does it entirely himself.
The legislation assumes an individual creator, but there can also be multiple creators. After all, people can collaborate to create content. If people jointly hold the copyright, they must also make agreements regarding it together. If they wish to do something with the work, they must obtain each other's permission. To prevent problems, these permissions are usually put in writing in advance. For instance, the publisher of a poetry book will have the poets' permission to publish the book beforehand, and a revenue sharing agreement will be drawn up in advance.
The maker who made nothing and the maker who does not exist
It also happens that the creator is not the person who performed the creative work or made the creative choices. In such cases, there is a fictitious creator, someone who is equated with the creator and who has not performed anything themselves. This is the case, for example, for a client who has someone else create the work for payment. The client is automatically the creator if they made the creative choices and outsourced the work, whereby only the creative work was performed by the contractor. In practice, this often gives rise to disputes. Therefore, it is advisable to make clear agreements regarding this in advance in a contract for services.
In similar ways, legal entities can also be the creators of a work. Thus, a monkey cannot be the creator of a work, but a legal entity—a legal fiction that exists only on paper—can. Employers, whether or not in the form of a legal entity, can also be the fictitious creator of a work. The condition, however, is that the employee's work falls under the customary activities and belongs to the employee's job description. This sometimes leads to discussions regarding interns, because an intern is, in principle, not an employee. If an intern creates work for the internship provider, it is important to internship agreement include agreements regarding
Transfer of copyright
Although it is the (fictitious) creator who holds the copyright at the outset, the copyright does not remain his forever. For example, the copyright is lost seventy years after the death of the creator. In the meantime, it passes to the heirs of the copyright holder.
Such a transfer can also take place in another way. For example, one can sell or gift the copyright to a work. Someone else who is not the creator and was not involved at all in the creation of the work then holds the exploitation rights. Incidentally, you cannot sell or gift copyright to a monkey; a monkey has no assets.
