Employment contract and the transfer of copyright

To be effective, transferring copyrights must be made in writing. A properly prepared contract is able to secure all the interests of the creator. However, is it possible to include such provisions in the employment contract? It turns out that a lot in this respect depends on the content of the existing obligation.

Employment contract and author's contract

An employment contract is governed by specific provisions of the Labor Code, while all legal and copyright contracts fall under the general category of civil law (hence they are subject to the provisions of the Civil Code and the Act on Copyright and Related Rights).

In practice, it happens that an employment contract and a copyright transfer contract overlap. The employed person is then obliged to create works / works of a specific type once or from time to time. Regardless of the nature of the work performed and the method of transferring the author's economic rights to the work, its creator always has the full right to use personal property rights. Art. 8 of the Act on Copyright and Related Rights
The author is entitled to the copyright, unless the law provides otherwise.
It is presumed that the creator is a person whose name in this capacity has been shown on copies of the work or whose authorship has been made public in any other way in connection with the dissemination of the work.
As long as the author has not disclosed his authorship, in the implementation of the copyright law, he is replaced by the producer or publisher, and in the absence of them - by the competent organization of collective copyright management..

Therefore, we should remember that remaining in any form of employment never deprives the author of a work of his moral rights - they are inalienable.

Transfer of copyrights as part of an employment relationship

The issue of transferring economic copyrights to the work as part of the work performed has been regulated in detail in Art. 12 of the Act on Copyright and Related Rights. Pursuant to this provision, unless the law or the employment contract provide otherwise, the employer whose employee created the work as a result of the performance of obligations under the employment relationship acquires economic copyrights upon the acceptance of the work within the limits resulting from the purpose of the employment contract and the mutual intention of the parties.

We should remember, however, that if the employer does not start disseminating the work intended for dissemination in the employment contract within 2 years from the date of acceptance, the author may designate the employer in writing an appropriate time limit for disseminating the work with the effect that after its ineffective expiry, the rights obtained by the employer along with the ownership of the object on which the work was recorded, return to the creator, unless the contract provides otherwise. The parties may specify a different date for the commencement of dissemination of the work.

Unless the employment contract provides otherwise, upon acceptance of the work, the employer acquires ownership of the object on which the work has been recorded.

The transfer of copyrights under the employment relationship is therefore automatic (i.e. under the law itself), when the employee and the employer have not agreed otherwise in this regard, and the work is created under existing employee obligations. We can deal with such a situation, for example, when creating computer programs and in the broadly understood IT industry. This also applies to typically artistic and creative professions. Judgment of the SA in Warsaw (file reference number I ACa 227/08)
For the application of art. 12 of the Act of 1994 on copyright and related rights, it is important that the created work is the result of the employee's obligation to perform work involving creative duties in the meaning of copyright law, and therefore it was created as a result of performing a set of activities "with characteristics corresponding to the principle of their separation established in contract ". For this reason, the above provision cannot be used in cases of other types of connections between the work and the employment relationship; it does not cover situations in which the work was created only in connection with (temporary, local, etc.) or during the performance of work, or thanks to the contribution of the employer. Start a free 30-day trial period with no strings attached!

When does an employment contract not transfer economic copyrights?

Regulation of Art. 12 of the Act on Copyright and Related Rights is not a mandatory provision. In practice, this means that the parties to an existing employment relationship may exclude the application of the above provision - however, it must be clearly stated in the existing contract or a relevant subsequent annex.

Thus, the employer and the employee may decide that all works created by the employee as part of the performance of their employee duties will be entirely attributable to its creator. Of course, it is also possible to partially limit this right - only to clearly indicated works of the employee. In this case, the creator retains all copyrights to the work (both property and personal). In order for them to be transferred to another person in the future, it is necessary to conclude a separate agreement transferring economic copyrights - it is therefore not necessary to conclude a new employment contract or change its individual provisions. Judgment of the SA in Kraków (reference number III APa 27/17)
If the performance of duties under the employment relationship is to be based on the creative activity of the employee, it is up to the will of the parties to whom the copyrights will belong. However, failure to specify in the employment contract or a separate agreement the ownership of these rights means that, within the limits resulting from the employment contract and the unanimous intention of the parties, the employer acquires economic copyrights to these works upon their acceptance. From the content of art. 12 a.p.a.p. it is also clear that it does not constitute grounds for the conclusion that it is up to the employee to decide on this matter. Since it uses the phrase "unless the law or the employment contract stipulate otherwise", it thus expresses the meaning of the will of both parties to the employment relationship, and not just the will of one party.

The copyrights to the work under the existing employment contract will not be transferred also if the work is the result of an accident, unintended actions of the employee or was created without connection with the performance of employee duties. Theoretically, it is possible that the work will be created during a break or, as it were, when the supervisor performs the assigned tasks - in these situations, the proprietary copyrights to the work are not transferred to the employer, even if the employment contract does not contain relevant provisions.

Remuneration for the transfer of copyrights under the employment relationship

Let us assume that the parties to the employment contract did not specify in it the question of the transfer of copyrights to the works that the employee undertook to create under his employment relationship. In this situation, these rights are transferred by law to the superior. The employee is then not able to demand payment of additional remuneration on this account.

It will be completely different when the employment contract regulates these issues. If the parties to the employment relationship have excluded the possibility of automatic transfer of economic copyrights to the work for the benefit of the employer, then it is necessary to conclude a separate agreement for their effective transfer. In practice, it takes a paid nature, although, of course, it can also be concluded free of charge. In this case, the employee has the right to demand payment of additional remuneration - it will not, however, be a salary, but payment as in the case of a contract of sale.

Employment contract and the transfer of copyright - Summary

An employment contract with the transfer of copyright is possible in the Polish legal system. If the nature of the work results in the creation of works under the employment relationship, the economic copyrights to the work shall be transferred, by operation of law, to the employer. The employee retains moral copyrights in all situations. However, we can only talk about the automatic transfer of copyrights if the works were created as part of employee obligations. The parties to the employment relationship may, of course, exclude the above rule and introduce provisions to the employment contract, according to which the transfer of proprietary copyrights to the work requires the conclusion of a separate civil law contract (for a fee or free of charge).