By: Pontus Sörlin
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Copyright in employment relationship
The starting point in employment relationships is that the employer is entitled to the work performance performed by the employee, the explanation for this being because the employer is the one who pays the employee salary in order for him to carry out a particular job.
This starting point is based on the view that capital contributions have more value than labour inputs.
When it comes to the rules on intellectual property rights, the starting point is the reverse, that it is the creator who is entitled to his creation regardless of the employment relationship.
The creator is thus the owner of the financial and non-profit rights to his creation, regardless of what a possible form of employment looks like.
These are therefore two starting points that on certain occasions clash and create a conflict of interest as to who is entitled to what the employee has created in the performance of his or her duties, is it the employer or the employee?
The requirement for originality
Copyright arises automatically when a person has created a literary or artistic work that possesses the originality of the work.
The requirement for originality means that the product must demonstrate a certain degree of independence, originality and express the individuality of the author.
For example, works include; fiction in writing, computer programs and photographic works.
Copyright complies with both an economic right, which can be said to be a right to dispose of the work by making it available to the public, as well as a non-profit right whereby the author’s name must be stated when a copy of the work is produced and that there must be no offensive changes to the work.
For a company, it is above all the economic right to the work that is most important as it is above all this right that enables them to generate money through, for example, the sale of the work.
The company’s interest in acquiring the nonprofit right is not as central, which is fortunate because the nonprofit right is in principle not negotiable except to some extent.
It is possible to agree that the non-profit right will also be transferred in full, however, such an agreement is not binding on the creator who can invoke his right afterwards.
In principle, a company must always take into account the non-profit right when selling the work, for example.
Economic and non-profit law
The economic part of the copyright of a work can be leased unhindered to a person other than the creator by contract, as I said, the possibilities for leasing the non-profit right are considerably less.
Where a work is created by an employee as part of the service or on a specific assignment from the employer, it can be considered that the economic right to the work, through the employment contract, has been transferred to the employer.
Since there is only a limited legal regulation as to how the copyright of a work may be transferred to the employer, this should be explicitly regulated in the employment contract.
In this way, both the employee and the employer can feel confident in what applies copyright to the employee’s work performance.
In order to avoid intellectual property disputes, companies need to keep an eye on this and regulate it early in the start-up process in order to secure the company’s investments and have an opportunity to focus on the company’s development.
Computer programs in employment relationships
However, there is special regulation that deals with the issue of copyright to, for example, computer programs in employment relationships.
When a computer program has been developed by an employee as part of his or her duties or following instructions from the employer, the copyright passes to the employer as long as nothing else has been agreed.
In the case of computer programs, there is therefore a reverse situation, which means that it can be agreed that copyright should not pass on to the employer, otherwise it automatically passes when the work is created.
It should also be stressed that the copyright of computer programs in employment relationships applies to both economic and non-profit law.
However, this special regulation is specific to workers in particular and the rules do not apply if the computer program is developed in a contract relationship, then it is necessary to regulate the copyright to the work by contract.