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