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Archived updates for Monday, June 20, 2005

Copyright Ownership for Employee Creations

In the U.S., if a work is a "work made for hire," then the employer or other person for whom the work was prepared is the initial owner of the copyright unless there has been a written agreement to the contrary signed by both parties. Section 101 of the copyright law defines a work made for hire to include "a work prepared by an employee within the scope of his or her employment." However, if a work is created by an independent contractor (that is, someone who is not an employee under the general common law of agency), then such a work can be a work made for hire only if both of the following conditions are met: (1) it comes within one of the nine categories of works listed in Section 101 and (2) there is a written agreement between the parties specifying that the work is a work made for hire.
According to a recent article from the IPR HelpDesk, in most countries of the European Union, the employer becomes the owner of rights in works made by its employees in the performance of their duties. However, this should not be understood as meaning that the legal regime in the countries that follow that general rule is identical. Two basic regimes can be distinguished:
In the first one the employer becomes the initial owner of the employees'
intellectual creations - for example the UK law simply provides that the
employer is the first owner, subject to the agreement to the contrary. In the
second regime, characteristic for the civil law countries, the employer is
deemed to acquire copyright in the employees' creations by means of implied
contract terms. For example, the German law arrives at a comparable result (to
the UK law) stating that the employee retains author's rights provided nothing
else "transpires from the terms or nature of the work or service relationship",
thus leaving scope for implied terms in employment contract.

Needless to say, in controversial cases these subtle differences may
matter. In some countries (France, Italy, Belgium. Luxemburg, Portugal) the
employee remains the owner of copyright, even though the work has been created
in performance of the employees' job duties, which means that the employment
contract does not trigger the implied effect of copyright transfer. In France,
Italy and Luxembourg the employer may however acquire copyright in the creations of his/her employees, if the work in question is the so-called collective work,
i.e. a work made by several creators under the direction of another person
(including a corporate body). If the employer is the one directing the creation
process, he/she can be deemed to be the initial owner of copyright.
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