The brutal truth is that many contracts for commissioned works are silent on copyright and in the absence of a contract specifying the contrary, the copyright of a commissioned work will remain with the author of the work and not the company.

There are exceptions, for example in the event that the work is derived from pre-existing work belonging to the company or when the author works in a team with the company or its employees.

However in most cases, in the absence of an agreement to the contrary, a company will find it difficult to convince a court that it should retain the copyright of a commissioned work. In such a case, the company will only retain a license (conferred by the author of the work) for use to the extent intended at the time when the company commissioned the work. For example, a company would not be able to sell software which was originally commissioned and designed for internal employee use. The author would also be able to derive a commercial benefit from the work, in conjunction with its use by the company, and even in the event that it was in direct competition with the company.

While this situation is certainly undesirable for any company, the measures needed to be taken to prevent this are fairly straightforward. Before commissioning any work, the company should ensure that a term conferring ownership of the copyright to themselves is agreed first. If a contract is not desirable in certain cases, a correspondence trail by email or letter to the same effect will usually be sufficient.

It is important to note that the above will only be true in cases of commissioned works by third parties. In the case of works created by employees, the company will as a general rule retain copyright of that work.

The status as self- employed or employed will have ramifications on you and your company in terms of your rights and your tax liability. For example, a person who is self-employed will be able to claim expenses against tax and a company will have to pay for PAYE deductions and NICs for its employees. In many cases, your status will be clear, and the terms of the contract with your business should be the first place to look for clarification. In the event that you are uncertain of your legal status (and therefore your tax and statutory rights) here is a list of general guidelines which can assist you.
Factors which may imply Employment:

1) Control - the business decides your hours and your place of work. It does not assign a project to you and give you free reign.

2) Perception (of others) at the company may have a major part to play. If there is no noticeable difference between the way you work, and that of other employees, this could suggest employment.

3) Benefits - any benefit of any kind such as holiday or sick pay will point towards employment.

4) Mutuality of obligation – in relation to a contract of service, is generally taken to mean an obligation on the employer’s part to provide work and an obligation on the employee’s part to perform it.

5) Time periods – The likelihood of being regarded as an employee will increase as time progresses. This will especially be the case where you are subject to a fixed number of hours in a week.

6) Fixed wage.

Factors which may imply Self-Employment:

1) Non-exclusive service – You have the right to take on work from other businesses.

2) Substitution - If you are allowed to sub-contract your work to a third party.

3) Financial Risk – If you have to use your own equipment and pay for your own training/courses or you are liable for any costs if your project overruns.

Ultimately, courts will look at the overall effect of the relationship between the individual and the business, and will not balance the number of factors in favour for against factors against. In the cases where the evidence is fairly balanced, the courts are likely to place emphasis on the intention of the parties concerned.

For any further advise, particularly in relation to your tax liability, you should contact HM Revenue and Customs (http://www.hmrc.gov.uk/menus/contactus.shtml)

The Government however has also indicated that some of the new provisions such as new accounting and auditing requirements or the fact that Company Secretaries will no longer be required will still go ahead in April 2008 as originally planned.

For a full breakdown of the implementation timetable you can go to http://www.berr.gov.uk/files/file37975.pdf

For more information about the Companies Act 2006 itself you can go to http://www.companieshouse.gov.uk/companiesAct/faq.shtml

You can download the Companies Act 2006 in .pdf here: http://www.opsi.gov.uk/acts/acts2006/pdf/ukpga_20060046_en.pdf

In a recent case at the Employment Appeal Tribunal an employee who had been refused sick leave by her employer despite the fact that she had produced a medical certificate signing off work due to stress won a substantial award of compensation. The court rejected the employer’s argument that it could rely on a clause which stated that ‘Payment [of sick pay] may also be withheld if there is any doubt that the absence is due to reasons other than health or personal accident which prevents the employee from undertaking any duty for which they are competent to perform’.

The employer argued that they could rely on this clause as they thought the reason for her sick leave was because of personal argument that she had had with her manager. Significantly, the court held that once a medical certificate had been produced, it was not open to an employer to go behind what appeared on the face of that medical certificate in the absence of contradictory medical evidence.

This might mean that employers might have to re-think their policies on sick leave. With the numbers of unhappy employees going off on sick leave due to stress steadily increasing the impact of this case could have a dramatic impact on businesses trying to cope with these problems. Employers should be wary of questioning medical certificates themselves, but if they are really suspicious then they should get the employee to see a different doctor in order to get a second opinion.

Marie, Contributor

The new Directive will prohibit misleading or aggressive commercial practices which will include advertising and marketing. The overall aim of this Directive will be to harmonise the same protection throughout the EU.

A commercial practice will be deemed to be unfair if it is a misleading action, omission, or aggressive. A misleading action will include information that is erroneous or “likely to deceive the average consumer, even if the information is correct” Misleading omissions will include those omissions which hides material information or makes such information unclear or ambiguous. A commercial practice that is aggressive will impair a consumer’s freedom of choice coercing him or her to make a transaction that would not have been made otherwise.

The regulations are to be enforced by the Office of Fair Trading, Trading Standards officers, and Ofcom and breaches will subject the offending businesses to a potential unlimited fine or imprisonment of up to 2 years.

Related Articles:

Statement from the DTI

http://www.dti.gov.uk/consumers/buying-selling/ucp/index.html

Times Online

http://entertainment.timesonline.co.uk/tol/arts_and_entertainment/stage/theatre/article1712230.ece

Normally wills are open to inspection and an application to the High Court would not be necessary to see a will. However, the will of the Sovereign is not subject to probate because of special rules, which mean that the wills are sealed unless the court directs it to be opened.

Robert Brown’s theory as to his real origins seems to more like the elaborate plot of a Disney film rather than real life. His seemingly ordinary and uneventful upbringing started in Kenya where he was born. His birth certificate was signed by Cynthia Joan Brown in which she named herself as his mother and stated that he was born in Nairobi on 5 January 1955, his father being Douglas Richard Brown, a builder by occupation. Robert said that he had always had a “sense of not belonging to the family environment in which he was brought up’’.

Although Robert in his own words acknowledges that he has ‘not been told’ that he is the illegitimate child of Princess Margaret, or even that he was adopted, he said that ‘It is a conclusion I have arrived at by deduction.’ This he continues is ‘based upon a jigsaw of personal recollections, events, circumstantial evidence, conversations, reactions and extensive research.’

The catalyst for his extraordinary theory was a cousins wedding in Wales. The wedding was said to have been a grand affair, with guests including a large number of titled people – Lords and Ladies, Earls and Countesses. Looking at the seating plan, Robert noticed that he was more or less the only Esquire. Robert said that: ‘‘When I mentioned this to my uncle he gave an embarrassed half-laugh and said: “wrong side of the sheets”. It was at this moment that he started to think more about his ancestry and in particular the possibility that he might be the illegitimate child of a Royal. Robert cites other events as part of his ‘jigsaw’ such as meetings from early childhood in Kenya with a woman ‘whom I now believe may have been Princess Margaret’ and someone commenting ‘you could be King one day’.

The executors for the Royal family were not impressed with his claim describing it as scandalous. The barrister representing the executors goaded Robert during the trial calling him deluded. The High Court wasn’t quite so convinced either and in throwing out his claim concluded that that there had been ‘no rational basis whatsoever’ for him to have held the belief that he was the illegitimate child of Princess Margaret.

Marie, Contributor to Lawmate.

The Claimant in this case, Lynette Copland, claimed that her employer had breached Article 8 of the European Convention on Human Rights (Everyone has the right to respect for his private and family life, his home and his correspondence) by monitoring her activities at work and reading her private emails.

In Ms Copland’s case, there had been a clear lack of company policy which warned that monitoring might take place. The collection and storage of this personal information without her knowledge was therefore considered to be a breach and the court found in favour of Ms Copland stating that she had a ‘reasonable expectation of privacy’ in relation to her telephone use, emails and activities on the internet.

This case has not significantly diverged from existing legislation (Regulation of Investigatory Powers Act 2000, Data Protection Act 1998) or current guidelines for employers, and only employees in the public sector have the ability to make a claim under the Human Rights Act directly.

However, all employers are advised to note:

1) Employees have an expectation of privacy over calls and internet use so a clear and well communicated policy which warns about monitoring is essential.

2) An employer must follow the principles of the Regulation of Investigatory Powers Act 2000 and the Data Protection Act 1998. For example, any monitoring must be for good reason and no more intrusive than necessary.

Factors which may imply Employment:

1) Control - the business decides your hours and your place of work. It does not assign a project to you and give you free reign.

2) Perception (of others) at the company may have a major part to play. If there is no noticeable difference between the way you work, and that of other employees, this could suggest employment.

3) Benefits - any benefit of any kind such as holiday or sick pay will point towards employment.

4) Mutuality of obligation – in relation to a contract of service, is generally taken to mean an obligation on the employer’s part to provide work and an obligation on the employee’s part to perform it.

5) Time periods – The likelihood of being regarded as an employee will increase as time progresses. This will especially be the case where you are subject to a fixed number of hours in a week.

6) Fixed wage.

Factors which may imply Self-Employment:

1) Non-exclusive service – You have the right to take on work from other businesses.

2) Substitution - If you are allowed to sub-contract your work to a third party.

3) Financial Risk – If you have to use your own equipment and pay for your own training/courses or you are liable for any costs if your project overruns.

Ultimately, courts will look at the overall effect of the relationship between the individual and the business, and will not balance the number of factors in favour for against factors against. In the cases where the evidence is fairly balanced, the courts are likely to place emphasis on the intention of the parties concerned.

For any further advise, particularly in relation to your tax liability, you should contact HM Revenue and Customs (http://www.hmrc.gov.uk/menus/contactus.shtml)

Kerrie Gray, 47, was said to have had a ‘happy and normal’ childhood. He had no criminal convictions and no history of violence and was also said to ‘avoid confrontation’.

He was a passenger of the train carriage that had borne the brunt of the crash. The experience was said to have been horrific and left Gray with vivid disturbing images of the dead and dying. Following the gruesome events, he suffered from mood swings, nightmares, panic attacks and often cried for no reason. He was haunted by flashbacks, particularly of one man who he had failed to help.

He returned to employment initially on a production line but his work started to suffer. He subsequently changed job twice. He began to drink heavily. His attendance record started to become a concern to his employers and he was eventually sacked.

On the day of the killing, he had became involved into an argument with a drunk man who had been standing in the middle of the road while Gray had been driving. In a furious rage Gray grabbed him by the throat and stabbed him. When it dawned on Gray what he done he turned himself into the police. He was charged with murder but managed to get the crown prosecution service to accept a guilty plea of manslaughter by diminished responsibility. Gray spent a short time in prison before being transferred to Runwell Hospital, where he remains now. Gray’s claimed for loss of earnings up to and after the killing and for future loss of earnings.

The claim was strongly resisted by the train company. Their argument was that since the killing his loss of earnings was not due to post traumatic stress, but rather from the fact that he had killed someone for which he was now being detained in a hospital. The judge agreed applying a principle of law that the court will not aid the recovery of damages based upon criminal offences.

Marie, Contributor to Lawmate.

In a nutshell, companies now have to display their company information in detail on their website and in the footers of their emails or risk a fine.

Who does the law apply to?

Every commercial company in the UK.

What information does my company have to display on its website?

a) The Full company name
b) The Geographic address (registered office rather than a PO Box.)
c) The company’s registration number the place of registration should be stated (This usually takes the form of “Example Company Limited is a company registered in England and Wales with company number 0101010″)
d) If the business is a member of a trade or professional association, membership details, including any registration number, should be provided.
e) The business VAT number (if applicable)
f) Any tax and delivery costs must be stated for any prices shown.

What information does my company have to display in its email footers?

a) The company registration number
b) The place of registration (e.g.England & Wales)
c) The registered office address

This information has been required for business letters for a number of years, and an amendment to the Companies Act 1985 has expressly added this duty to email communication also. Of course, not all of the emails your company sends will be of a business nature but it is good practice to automatically include this information on all correspondence.

Does my company really need to add a confidentiality/disclaimer as well as all the above?

It is still uncertain as to how legally binding any confidentiality notice or disclaimer will be, as this has not yet been tested in law. Confidentiality clauses may serve as an aid in court if a company ever wished to show that a party was unjust in revealing the contents of an email to a third party and might therefore be useful to include. General guidance on disclaimers however suggests that they are unlikely to be effective and should be used with caution. Added to this, any email asking, for example, the recipient not to rely on the contents of this email is not likely to inspire confidence in the recipient.

What a company wishes to disclaim will depend on the nature of its business and it is advisable to seek legal advice for a disclaimer applicable to you.