Recruitment and copyrights - what is worth knowing?

Many jobseekers (especially in the creative industry) have certainly encountered a situation where a potential employer, in addition to sending a CV, cover letter or portfolio, also asked to prepare a project or advertising slogan in a job advertisement. What's more, it happens that recruiters, when inviting to an interview, require us to be even more creative and inventive: they ask us to prepare a few ideas for the development of the company or for improving its image. It is hard to find a job nowadays, which is why many people approach such tasks ambitiously and send a potential employer refined projects, while during job interviews, they present really very good and innovative ideas. How is copyright to a work protected in this context?

While the issue of using our works and ideas by the employer after employment does not arouse so much emotions, appropriating the concepts and works of unemployed people participating in the recruitment does. What happens to the effects of our work if we do not get employment? Does the would-be employer have the right to use them? While the answer seems obvious - no, he shouldn't - it's actually quite the opposite: would-be employers massively copy the ideas and works presented in the recruitment process. Unfortunately, asserting your rights can often turn out to be very difficult.

Idea and copyright

A good idea can be worth a fortune these days if put to good use. What does it mean?

Copyrights protect works, that is, any manifestation of creative activity of an individual nature, established in any form, regardless of value, purpose and manner of expression. The work will then be the creative effect of our action, the result of our creative work. The work must be established in any form - this means that it is not necessary to record the work (save it on a material medium). The work is established when it is externalized. So the song will be a lecture given at a seminar or an improvised song during a concert. Can you also consider an idea that we will present to a potential employer during an interview as a work?

The act on copyright and related rights does not protect ideas. According to Art. 1 clause 2 of this legal act:

Art. 1. 2. Only the manner of expression may be protected; discoveries, ideas, procedures, methods and principles of operation and mathematical concepts are not protected.

Imagine a situation like this: during the interview, the recruiter asks the candidate to propose changes to the appearance of the company's website, which he does - he presents several ideas for changes, describing them in detail. She is not hired, but some time later it turns out that the would-be employer made changes to the website in accordance with her ideas. Are we talking about copyright infringement in such a situation? Can the ideas proposed by the candidate be considered a work?

First of all, it's hard to consider an idea to present something as a piece. There would be no such problem in the case of inventing a slogan or advertising slogan - the slogan or slogan are already verbal works after they are uttered. By expressing them, we not only externalize them, but also establish and express them in a certain way. When presenting an idea to change a website, it is difficult to say exactly what these changes should look like, because words can never accurately describe what a piece that takes on a graphic form should look like. Even if we describe our idea exactly, it will not be exactly the same in the listener's imagination as it is in ours. Similarly, a journalist who presented some interesting topics for articles during an interview will not be able to make claims against the would-be employer who used these topics and wrote his texts based on them. We would have to deal with a completely different situation if we prepared a project of a changed website or an article on an interesting topic, and the would-be employer would copy this project or text and present it as its own - then our copyrights would be infringed, because our project / text would constitute a work within the meaning of the Copyright Act.

What does it mean? The fact that the subject of copyright protection is the realization, not the idea. This line of jurisprudence is adopted by the following courts:

Thus, the essence of the work is also its way of expression (recording in any form), which means that it must be individualized in a specific form, the result of an action externalized in its content or form. Contrary to the work understood in this way, there are ideas (ideas) that do not contain any way of expression. Among them, ideas for an advertising campaign are commonly mentioned. Excluding ideas from copyright protection was to prevent the monopolization of human thoughts, which should be a public good, at least from the point of view of copyright (...). Judgment of SA in Katowice of October 9, 2012, V ACa 175/12

While this may seem unfair, there is a higher goal behind it - ideas must be a public good. For if they were to be protected, there would be no development.

Pursuant to the provision of Art. 1 clause 1 aut. the subject of copyright is only a "fixed" work, externalized in a way that allows it to be individualized, ie to be distinguished from other products of human creativity. It cannot be considered a work in this sense, only a description of a future, hypothetically created work. Judgment of SA in Poznań of 17 December 2009, I ACa 893/09

It is not a plagiarism of a work that is created as a result of a completely separate, independent creative process, even if it has a content and form very similar to another work. There are possible situations in which two artists, independently of each other, use the same idea in a work and develop it using very similar artistic means, especially if the works concern the same subject or very similar subjects. The fact that a work created later is an imitation of a work created earlier cannot be determined by the mere similarity of the elements of both works. Contrary to the position of the complainant, plagiarism will therefore be determined by the deliberate use and appropriation of elements of someone else's work to such an extent that it does not allow for the evaluation of the later work as completely original, created entirely as a result of the author's creative process. Judgment of SA in Warsaw of September 15, 1995, I ACr 620/95

Works created for the recruitment process and copyrights

As can already be deduced from the above arguments, we deal with a completely different situation when a candidate creates a work for the purpose of recruitment. This is a situation where, at the request of a potential employer, we prepare projects, plans, slogans - in fact, works within the meaning of the Copyright Act.

Can such works be used by the employer without our consent? Not. Even if we get hired, we still own the copyright to these works.

In the event of employment, such works cannot be considered employee works because they were created before the commencement of the employment relationship. So if the employer wants to use them, he should conclude a copyright transfer agreement or license agreement with the author. Otherwise, the employee will be able to effectively assert his rights. It will be similar in a situation where the would-be employer does not hire a candidate, but uses the works sent by him.

When we see a job offer in which recruiters require the creation of specific advertising slogans or projects, it is worth being more vigilant. Although, of course, such an action may be due to the desire to test the skills and creativity of potential candidates. However, there are many other ways to check a candidate's qualifications, not necessarily by commissioning a specific piece of work. Unfortunately, very often companies conduct fictitious recruitment just to get new ideas for free. However, if we still want to respond to such an offer, it is worth taking precautions.

First of all, when we provide a potential employer with our application documents together with the created work personally, it is best to ask for a return receipt so that we have proof in the future that the work has been delivered to the recruiter at all. However, if we send documents via e-mail, it is best to keep a copy of the e-mail sent. What's more, the work must be signed with our name and surname so that there is no doubt who its author is. It is also worth remembering to send it in a non-editable format (e.g. so that no one will erase our name from the song).

In order to be 100% sure that the work will not be unlawfully used by the would-be employer, you can request him to sign a contract that will regulate the further fate of the work presented. However, if we are sure that the recruiter will not agree to signing such an agreement, it is worth placing a bogey on the work - that is, a record in which we remind the recruiter that the transferred work is a work within the meaning of copyright law, and is therefore subject to protection provided for by the act, and that together with the transfer of the work, we do not transfer any rights to this work to the potential employer and we do not agree to any use of it.

So if in the future we discover that our work has been unlawfully used by the would-be employer, we will be able to pursue our claims - provided, of course, we have evidence that the work was actually transferred and that we have the copyright to it. Employers, on the other hand, should be very careful with the works transferred to them.