What is Copyright and How do I get One?

Copyright refers to a set of exclusive rights covering a broad range of original works of authorship. In Cambodia, the Law on Copyright and Related Rights grants copyright protection to works in which thoughts or sentiments are expressed in a creative way – and can be literary, scientific, artistic or musical. This includes written text, photographs, video, music recording, and computer programs. Ideas, inventions, and concepts are not copyrightable, but may be the subject of an invention patent. Copyright is for a definite period of time, depending on the type of work and author – but in all cases a number of decades, such that copyright expiration is rarely a concern for startups.

Unlike with trademarks, patents and most other forms of intellectual property, copyright is obtained automatically without any registration, claiming, notification or publishing. As text is written and as soon as a camera shutter clicks, there is copyright in those works.

Nevertheless, in Cambodia there is the possibility of depositing the work with the Ministry of Culture and Fine Arts. This serves as evidence of ownership and can be of value should a dispute or infringement arise. Startups may wish to consider depositing their software application, in the form of a DVD with accompanying screenshots, with the Ministry before going to market.

As with other forms of intellectual property, copyright is territorial – meaning a work must be copyrighted in a country in order to prevent others from exploiting it in that country. In the case of Cambodia, residents and nationals, as well as Cambodian legal entities, are afforded protection, as are foreigners under certain circumstances. Conversely, most other countries offer protection to works created in Cambodia, without the need for registering the copyright or other formalities.

 

What Can and Can’t I do with a Copyright?

Copyright is divided into two sets of rights: economic and moral.

Economic rights provide the owner with exclusivity in exploiting the work, through copying, distribution and making derivative works. Moral rights allow the owner to decide on how and when a work will be disclosed to the public, to have their name associated with the work, and to prevent harmful distortion or modification. In most cases, both moral and economic rights are owned by the same person. However, when they are not – as in the case of an employee’s work – there can be situation where the economic rights holder seeks to monetize the work, but the moral rights holder prevents them.

These rights are subject to a number of limitations, meaning the copyright owner cannot prevent each and every instance of copying or exploitation of their work. The limitations most pertinent to startup businesses allow others to use short pieces of copyrighted works in justifiable circumstances, use within a close circle of people, and for educational purposes not for financial gain.

 

Founders, Employees, Freelancers & Copyright Trouble

Copyright presents new businesses with special ownership challenges that are often overlooked but can spring up to destroy a business right when they are achieving success. The challenges involve the question of who owns the rights to what a startup creates.

As described above, the scope of copyright is extremely broad. So in the course of a startup getting off the ground, a wide array of copyright works will be created: software code, business plans, slide presentations, email traffic, photographs, logo designs, websites, and much, much more. Almost all saved digitally and stored across a range of platforms by multiple people. What’s more, these copyrighted works will have been made by a range of creators, often working together on the same piece – from the founders themselves, to friends working for free, to paid freelancers, employees on the payroll, or third-party companies and individuals (even without their knowledge, as in the case of open-source software). Working out what the startup owns, and what the various individuals or other companies own, is a matter of copyright law.

In Cambodia, the law presumes that the person in whose name the work is created and disclosed is the author, and owns both the economic and moral rights to the work. If that person is employed and did the work in the scope of their work, then the employer owns the economic rights, while the moral rights remain with the employee.

If two or more persons jointly create a work – almost always the case for a software project of any size – then they are all deemed co-authors, giving each of them a share in any profits and a veto over the sale or licensing of any work. So, for instance, a departed co-founder who wrote some of the code will have significant leverage over the startup, even after they have left.

The way out of this tangle of rights is to ensure all startup team members sign an employment agreement by their first day on the job. For freelancers, founders, consultants, volunteers and others not on the payroll but involved in the startup, they should sign an assignment agreement covering any works created in the scope of their activity to the startup. The Copyright Law specifically requires that any contract for the exploitation or transfer of economic rights be in writing. A verbal agreement or understanding that the copyright belongs to the startup would not hold up in court.

 

For more on copyright in Cambodia, refer to alliance member Abacus IP’s

Guide to Copyright Law in Cambodia.

 

 

Return to Frontpage