Who owns copyright?
Does the employer have a right to all copyrights for the work of his employee?
Copyrights protect against the imitation and unauthorized use and exploitation of intellectual, copyrighted works. They must have an individual design and stand out from the mass of everyday designs. Imitations are not works.
The copyright law cites a few examples such as writings, speeches, music, photographs and films. But also representations of a scientific or technical nature such as plans, sketches, tables and models are protected by copyright. Even computer programs are included. Prerequisite: You have individual peculiarities that exceed the average abilities of other programs.
Copyrights are subdivided into moral, exploitation and usage rights:
- Moral rights govern the naming of the creator upon publication and distribution.
- Exploitation rights regulate reproductions.
- Usage rights determine who may use the rights.
In addition to the simple right of use – the user may use a work for himself, among other other users – the author can also grant an exclusive right of use. Thereafter, only the user is entitled to use and under certain circumstances for the transfer of the work.
In the workplace, copyright has special features. Finally, the employer pays the employee. This has an influence on the design of copyrights. If the work is created during working hours and with the help of the employer’s work equipment, it usually receives a tacit usage right. It also continues after the job change of the author. If the work originates in the leisure time and if it has a connection to the work, for example by special knowledge, the worker can be obligated to offer the employment rights to its employer against appropriate remuneration.
The compensation claim of the employee is normally compensated with the salary for works created during working hours. Exceptions arise if the nature and extent of the use of the work exceed the usual level. If the employee’s work generates high profits that are not proportionate to the remuneration, the employer may be required to adjust the salary or make a special payment.
Even with temporary jobs, a financial claim may arise if the total payable is disproportionate to the company’s additional profit. Under normal circumstances, low salaries may also create claims. The right to copyright recognition and designation also exists at the workplace. The employee can however renounce in writing the copyright designation. Likewise, as the author, he may waive his right to consent to changes in the work. Only disfigurements of the work may not be demanded by the employer.
Property of employees
An employer is responsible for the property of its employees. This also applies to their vehicles on the company car park.
The employer has a duty of care towards his employees. He must protect the property of his employees. This applies to items that the employees bring to work. He must take suitable precautions against thefts. If he provides parking spaces, these must be roadworthy. However, the employer is not liable for traffic accidents on the company car park. He has only to enter the traffic safety of the site. The employer is also not liable for damages suffered by third parties, e.g. by a subcontractor or by a company carrying out repair work on the premises.
Workers and Copyright: Who is the author? Who can use what?
Numerous authors do not create works as freelance artists or entrepreneurs, but are employed dependent. Therefore, copyright issues in the relationship between employer and employee in legal practice have a significant importance.
Employees as originators
Author is always the one who created the work (copywriter, composer, painter, graphic artist). If several have created a work together, they are co-authors. This also applies in the employment relationship, ie when an author has created a work in his capacity as an employee for the employer.
Incidentally, the above also applies to computer programs created in employment relationships. The author is and always will be the computer program creator.
Copyright rights of the employer
A question to be resolved here is whether and to what extent the employer is entitled to use the work created by the employee for operational purposes.