Copyright: a general introduction
Copyright is a form of intellectual property. In principle, copyright means that a work (such as an idea, a lyric, a recipe, etc.) belongs to the creator/inventor of this work. Article 1 of the Copyright Act describes copyright as follows:
"Copyright is the exclusive right of the creator of a literary, scientific or artistic work, or of his successors in title, to publish and reproduce it, subject to the restrictions imposed by law."
Copyright arises when the creator has created the work. Moreover, copyright arises automatically. Therefore, no (legal) acts are required to obtain the copyright on a certain work.
Employer's copyright: an exception
An exception to the 'regular' copyright is the employer's copyright. In the case of employers' copyright, the copyright on a trademark does not belong to the creator but to the employer, contrary to the 'regular' copyright. The employer's copyright is regulated in Section 7 of the Copyright Act. This article reads:
"If the work, carried out in the service of another person, consists of the creation of certain literary, scientific or artistic works, then, unless the parties have agreed otherwise, the creator of those works shall be deemed to be the person in whose service the works were created."
This Article lays down a number of requirements:
- In the service of another person: there must be an employment relationship under private or public law. This means that freelancers or freelancers fall outside the scope of Article 7. As a result, a work developed by a freelancer or freelancer is not legally due to his client. This should be specifically mentioned in an assignment agreement.
- Work, consisting of the creation of work: the creation of the work must be part of the employee's duties. Work that is useful to the employer and that is not part of the package of tasks falls outside the scope of Article 7 of the Dutch Copyright Act (Auteurswet). As a result, these works are not covered by the employer's copyright by operation of law. However, the article does apply if an irregular, explicit order to create certain works has been accepted by the employee.
- Certain works: the work must consist of the creation of certain works. This shows that the work must not only be part of the employee's duties, but that the employer also has control over the way in which the works are created.
In principle, the works created by an employee are automatically regarded as the employer's copyright if the above conditions are met. The employer's copyright is the rule of law. This means that employer and employee, for example in the employment contract, can deviate from this legal regulation.
Trainees
In principle, trainees are not subject to the employer's copyright under Section 7 of the Copyright Act. Trainees do not perform work. Their activities within the company where they are doing a traineeship are aimed at acquiring knowledge and experience. In order to ensure that what is developed by trainees also accrues to the copyright of the traineeship employer, it is important to include in the traineeship agreement that the trainee transfers his or her intellectual property rights (including copyright) to the traineeship employer. In this way, it is prevented that the knowledge acquired by the intern within your company ends up undesirably in another company.
Personality rights
Copyright is a right of exploitation and a right to personality. The exploitation right means that the creator may make the work public and reproduce it. In the case of employer copyright, this right belongs to the employer. In addition to the exploitation right, the maker also has a so-called personality right. This means that the maker has the right to oppose if his or her work is published under a different name. In the case of employer copyright, an employee transfers both exploitation rights and personality rights to the employer.
Employer's copyright in other countries
Only the Netherlands, the United Kingdom and the United States have a regulation for employer copyright. In other countries, the employee is and remains a 'creator'. Employee is deemed to have waived his exploitation rights and insofar as relevant in the context of the specific activities of his personality rights.
Finally
At Legal Q we have a lot of experience with start-ups and innovative companies. For such companies, it is necessary that intellectual property is and remains well protected. It is also important that employees' inventions accrue to the employer. In order to avoid misunderstandings, we recommend always including a provision in the employee's individual employment contract. If you have any questions, please feel free to contact us.