Copyright, Designs and Patents Act 1988, section 104

Presumptions relevant to literary, dramatic, musical and artistic works

Part I Copyright

(1)The following presumptions apply in proceedings brought by virtue of this Chapter with respect to a literary, dramatic, musical or artistic work.

(2)Where a name purporting to be that of the author appeared on copies of the work as published or on the work when it was made, the person whose name appeared shall be presumed, until the contrary is proved—

(a)to be the author of the work;

(b)to have made it in circumstances not falling within section 11(2), 163, 165 or 168 (works produced in course of employment, Crown copyright, Parliamentary copyright or copyright of certain international organisations).

(3)In the case of a work alleged to be a work of joint authorship, subsection (2) applies in relation to each person alleged to be one of the authors.

(4)Where no name purporting to be that of the author appeared as mentioned in subsection (2) but—

(a)the work qualifies for copyright protection by virtue of section 155 (qualification by reference to country of first publication), and

(b)a name purporting to be that of the publisher appeared on copies of the work as first published,

the person whose name appeared shall be presumed, until the contrary is proved, to have been the owner of the copyright at the time of publication.

(5)If the author of the work is dead or the identity of the author cannot be ascertained by reasonable inquiry, it shall be presumed, in the absence of evidence to the contrary—

(a)that the work is an original work, and

(b)that the plaintiff’s allegations as to what was the first publication of the work and as to the country of first publication are correct.

Definitions used in section 104 11

artistic work

(1) In this Part “artistic work” means—

(a)a graphic work, photograph, sculpture or collage, irrespective of artistic quality,

(b)a work of architecture being a building or a model for a building, or

(c)a work of artistic craftsmanship.

Defined in s.4(1) · see it in the full Act

“artistic work” has the same meaning as in Part I of the Copyright, Designs and Patents Act 1988 ;

Defined in Sch.4 para.38 · see it in the full Act
author

(1) In this Part “author”, in relation to a work, means the person who creates it.

Defined in s.9(1) · see it in the full Act

“author”, in relation to a design, has the meaning given by section 2(3) and (4);

Defined in Sch.4 para.38 · see it in the full Act

(3) In this Act the “author” of a design means the person who creates it.

Defined in Sch.4 para.38 · see it in the full Act
copy

(1)The copying of the work is an act restricted by the copyright in every description of copyright work; and references in this Part to copying and copies shall be construed as follows.

Defined in s.17(1) · see it in the full Act
made

(2)Copyright does not subsist in a literary, dramatic or musical work unless and until it is recorded, in writing or otherwise; and references in this Part to the time at which such a work is made are to the time at which it is so recorded.

Defined in s.3(2) · see it in the full Act
employment

“employee”, “employment” and “employer” refer to employment under a contract of service or of apprenticeship;

Defined in Sch.4 para.38 · see it in the full Act

“employed”, “employee”, “employer”, and “employment” refer to employment under a contract of service or of apprenticeship;

Defined in s.178 · see it in the full Act

“employed”, “employee”, “employer”, and “employment” refer to employment under a contract of service or of apprenticeship;

Defined in s.178 · see it in the full Act
Crown copyright

(2) Copyright in such a work is referred to in this Part as “Crown copyright”, notwithstanding that it may be, or have been, assigned to another person.

Defined in s.163(2) · see it in the full Act
Parliamentary copyright

(7) The provisions of this section also apply, subject to any exceptions or modifications specified by Order in Council, to works made by or under the direction or control of any other legislative body of a country to which this Part extends; and references in this Part to “Parliamentary copyright” shall be construed accordingly.

Defined in s.165(7) · see it in the full Act

(2) Copyright in such a work is referred to in this Part as “Parliamentary copyright”, notwithstanding that it may be, or have been, assigned to another person.

Defined in s.165(2) · see it in the full Act
international organisation

“international organisation” means an organisation the members of which include one or more states;

Defined in s.178 · see it in the full Act
work of joint authorship

(1) In this Part a “work of joint authorship” means a work produced by the collaboration of two or more authors in which the contribution of each author is not distinct from that of the other author or authors.

Defined in s.10(1) · see it in the full Act
publication

(3)In the case of a work of architecture in the form of a building, or an artistic work incorporated in a building, construction of the building shall be treated as equivalent to publication of the work.

Defined in s.175(3) · see it in the full Act

(1) In this Part “publication”, in relation to a work—

(a)means the issue of copies to the public, and

(b)includes, in the case of a literary, dramatic, musical or artistic work, making it available to the public by means of an electronic retrieval system;

Defined in s.175(1) · see it in the full Act
country

“country” includes any territory;

Defined in s.178 · see it in the full Act

Cases considering section 104 8

Entain Operations Limited & Ors v Liquidity Trading Limited & Ors

[2026] EWHC 2330 (Ch) · 10 September 2026Limits

The court held that the presumption could not assist without particulars identifying the relevant work, first publication and publisher; generic reliance was insufficient. (see paras [67], [130(i)]) The court required a properly reasoned pleaded case as to when first publication occurred before the presumption could be invoked; a bare reservation was inadequate. (see paras [68], [130(ii)])

Lidl Great Britain Limited & Anor v Tesco Stores Limited & Anor

[2023] EWHC 873 (Ch) · 19 April 2023

The court applies the statutory presumptions and finds Lidl’s ownership of the Mark with Text established in the absence of a positive challenge. (see para [291]) The provision is relied upon as a statutory presumption supporting Lidl’s case on authorship and ownership of the Works. (see para [278]) The provision is relied upon as a statutory presumption supporting Lidl’s case on ownership of the Works. (see para [278])

Penhallurick v MD5 Ltd

[2021] EWHC 293 (IPEC) · 15 February 2021

The court accepted that section 104(2) raised a rebuttable presumption concerning authorship and circumstances outside section 11(2). The presumption was displaced by the finding that the defendant owned the copyrights (see paras [98]-[100]).

What each judgment says about section 104 is in the case-law panel in the full Act.