Copyright for the employee or employer?

Many employers are continuously working on renewal and innovation. A difference of opinion may arise between the employer and the employee about who owns the copyright on a work. For example, who owns the copyright if an employee has developed an app at home outside office hours that the employer wants to use?

Copyright according to the Copyright Act

Article 1 of the Copyright Act (AW) states that copyright is the exclusive right of the “creator” of a work. The creator therefore obtains the copyrights. In most cases this will be the physical creator, or the person who actually creates the copyrighted work.

What is a work?

Copyright applies, for example, to texts, instructions for use, brochures, videos and other promotional material, photos, drawings, apps and software. In the AW these are called “works” and in order to be protected by copyright, these works must have their own original character and bear the personal stamp of the creator.

Employer copyright

The AW has some exceptions to the main rule that the creator of the work acquires the copyright. These exceptions relate to so-called fictitious creatorship. In those cases, someone other than the physical creator is the copyright holder. Under Article 7 of the AW, the employer can be regarded as a fictitious creator under certain conditions. Article 7 of the AW reads as follows:

“If the work performed in the service of another consists of the production of certain literary, scientific or artistic works, then, unless otherwise agreed between the parties, the creator of those works is considered to be the person in whose service the works were made. manufactured.”

According to this provision, the employer therefore becomes, under certain circumstances, the rightful owner of the works that the employee has created.

Employer copyright conditions

• The work must have been performed in the service of someone else. There must therefore be an employment contract within the meaning of Article 7:610 of the Dutch Civil Code.
• Creating works must be part of the employee's job description. An exception to this is the situation in which the employee has accepted an incidental explicit assignment from the employer to create one or more specific works.
• It is not decisive whether the employee creates the copyrighted work during working hours or in private time. Nor is it important whether the work accomplished serves any benefit to the employer.
• The employer must have a certain say over the form in which the copyrighted work is created.

Please note: parties can agree in an agreement that the copyright belongs to the employee.

Intellectual property clause in employment contract

As an employee without this being part of his job For example, if you develop an app that is useful to the employer during working hours, the copyright in that case does not belong to the employer.

For this reason, it is wise to include an intellectual property clause in employment contracts with employees. Such a provision stipulates that employees undertake in advance to transfer intellectual property rights to the employer. Intellectual property rights not only include copyright, but also patent law, for example.

If an employee makes an invention during working hours, the employee may be obliged under the intellectual property clause to cooperate in the establishment of a patent right in the name of the employer in respect of that invention.

Example ruling of the North Holland District Court December 24, 2020

How useful an intellectual property clause can be is evident from one ruling by the North Holland court at the end of last year.

SI Music is involved in the commercial production and exploitation of music for clients. The employee joined as a sound engineer in 2011 and created musical works on behalf of SI Music. These musical works were registered with Buma/Stemra under the employee's name from the start of the employment contract. The reason for this was that Buma/Stemra only has natural persons and no legal entities as participants.

The employment contract with the employee included the following:

• Article 7.1: “All (intellectual property) rights, of whatever nature, that have arisen, been devised, manufactured or otherwise established during the performance of the work by the Employee under this agreement, are subject to the Copyright Act and the Dutch Data Protection Act. neighboring rights are the exclusive and undivided property of the Employer. The employer is the full and exclusive owner of these rights. Intellectual property rights include, but are not limited to, all worldwide copyrights.”
• Article 7.6: “The Employer will register the works produced by the Employee under the name of the Employer, SI Music Studio, with various rights bodies, including (foreign) collective management organizations, such as SENA and Buma/Stemra, among others. The resulting income, from all relevant rights, will accrue to SI Music Studio or (partly) if applicable to its customers. The employee will in no way be able to derive any rights or income from this in his capacity as performing artist and/or author. In the unlikely event that this becomes necessary, the Employee will immediately and at the first request of the Employer assign all his financial claims relating to the exploitation of the musical works composed by him to the Employer and cooperate in all formalities required for this. , for example by signing appropriate instruments and/or agreements so that the Employer has exclusive rights to these financial claims.”

From 2013 to 2018, Buma/Stemra paid an amount of almost €194,000 to employees under the heading: Authors' Old Age Provision Scheme (ROA). SI Music ordered the employee to transfer this amount to her, but the employee refused. The employee believed that the ROA should be regarded as a retirement provision and not as operating income. According to him, it would therefore not appear from the employment contract that he would be obliged to transfer the amount to his employer.

The Court first considered that the amount received under the ROA is a payment arising from the income from music copyrights and is not a pension.

The Court further considered that Si Music and the employee have expressly agreed in the employment contract that the employer is the entitled party of all works created by the employee during the employment relationship. Article 7.1 of the employment contract states that all intellectual property rights arising from the employee's employment fall under the exclusive property of SI Music. In addition, Article 7.6 stipulates that all income and rights arising from the works produced by the employee accrue to SI Music. The employee cannot therefore derive any rights or income from this.

The basic principle is that the employer qualifies by operation of law as the entitled party to works created in the context of employment if the conditions of Article 7 AW are met. It is wise to include an intellectual property clause in employment contracts.

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This blog was written by our former colleague Marie-Chantal van Oss. Do you have any questions about this blog or do you have another employment law question? Please contact one of ours employment law specialists.