What is a work of art?

The Act of 4 February 1994 on Copyright and Related Rights (hereinafter referred to as the Copyright Law or the Act) does not use the term "employee work," nor does it provide a legal definition of the term. It is generally assumed that an employee creates a work as part of their employment responsibilities.

What provision of Copyright Law applies?

The issue of employee-owned works is regulated in Article 12 of the Copyright Law. However, this provision applies only if the parties to the legal relationship – the employee and the employer – do not provide for a different provision in their employment contract regarding the allocation of copyrights.

Copyright law provisions therefore allow for the free regulation of copyright relationships in employment contracts. Contractual provisions may be identical to the content of the aforementioned provision or may be modified by expanding or narrowing it. Of course, any modifications must not conflict with mandatory provisions of law.

What does Article 12 of the Copyright Law guarantee and to whom?

Pursuant to Article 12, Section 1 of the Copyright Law, unless the Act or the employment contract provide otherwise, the employer acquires the copyright to the work created by the employee as part of the performance of duties arising from the employment relationship.

The acquisition of these rights occurs upon the employer's acceptance of the work. The provision does not specify the form in which this should occur. Two views exist in the legal literature: the first indicates that the act of accepting the work should take the form of a declaration of intent, the second, challenging this position, treats it as an autonomous structure, not a declaration of intent . The latter seems more accurate because it allows for the act to be performed not only by the employer but also by the employee's immediate superiors, who may not always have the authority to represent the employer .* Upon acceptance of the work, the copyright—originally owned by the employee—transfers to the employer.

These rights are acquired "within the limits resulting from the purpose of the employment contract and the common intention of the parties." What does this mean? This section of the provision indicates the scope of the transfer of copyright to the employer. Failure to specify the fields of exploitation in the contract does not result in the transfer of all rights to use the employee's work to the employer***. The employer acquires only those rights agreed to by the parties to the contract. However, if the parties have not regulated these matters, the indicated criteria – the purpose of the contract and the common intention – will allow for the definition of the fields of exploitation.

Obligation to distribute the employee's work.

An employer is obligated to distribute an employee's work only if the parties have agreed in the employment contract that the work created by the employee is intended for distribution. In Article 12, Section 2 of the Act, the legislator specifies the deadline by which the employer must commence distribution; this deadline is two years and begins on the date the work is accepted.

If this statutory two-year period expires and the employer fails to fulfill the obligation, the creator has the right to set an additional appropriate deadline for the employer to disseminate the work. This action must be made in writing. Failure to fulfill the obligation within this timeframe results in the rights acquired by the employer—along with ownership of the object in which the work is fixed—reverting to the creator.

The provisions of Article 12, Section 2 of the Act are also relatively binding. Consequently, the parties to an employment relationship may regulate these issues differently in their contracts. Alternatively, they may limit themselves to specifying a different deadline for the employer to commence dissemination of the work than the one provided for in the Act.

What should you remember when drawing up an employment contract?

When concluding an employment contract, in order to avoid any doubts as to the rights of each party, it is worth remembering the following:

• detailed definition of employee duties in the contract,
• indication of all fields of exploitation in which the employer will use the work,
• determining the conditions and form of acceptance of the work by the employer.

From the employer's perspective, it's also important that work orders don't exceed the employee's scope of duties, as described in the employment contract. This is important to bear in mind to avoid any doubts as to whether we're dealing with employee-generated work.

This alert is for informational purposes only and does not constitute legal advice.

|