The question of the employee creation in continental author’s right is at the centre of numerous contradictions which are not easy to adjust. In the logic of the system set up in France in 1957, the right is certainly created for the employee. Yet, today, we know that copyright did not stop widening its scope to areas (advertising, decorative art, IT) in which the investors have trouble being constantly exposed to the threat of the exercise of the employee’s right. The system of “works made for hire” is then looked at with some envy. It is certainly more reassuring for companies but it still requests to know its intricacies. Here are thus, in this new news in brief, some essential rules.
In the United States, Article 101 of the Copyright Act distinguishes clearly, among works made for hire, between the works made within the framework of a service contract, the works created within the framework of an employment contract and the works created within the framework of an order contract. In the United Kingdom, which ignores this notion of works made for hire (see the section 11 (2) of the law of 1988) the right reserves also a particular fate for the employees creations and for the creations of order. Only the employees’ creations will be presented here.
The attribution of copyright to the employee supposes three essential and additional conditions: to be in the presence of an employee, to have acted within the framework of the employment contract, not to have agreed to opposite stipulations.
In the United Kingdom’s copyright legislation, as in the United States’, the first difficulty is to define the term of “employee”. In article 178 of the CDPA, the law of 1988 underlines that “employer, and employment refer to employment under a contract of service or of apprenticeship“. The contract of service (or employment contract) is therefore distinguished from the contract for service (or company contract). Contrary to France, the British law includes the apprenticeship contract in its definition. But how to define the employment contract? The doctrine emphasized here on several criteria: the degree of control exercised by the employer, the fact that the employee is a member of the working organization, the provision of working tools…
The position of the United States on this question is even richer. Noting confusions made under the influence of the law of 1976, between the works created within the framework of an employment contract, and the works realized within the framework of an order contract, where the person who orders watches closely the execution of the creation, the judge, in the decision Community for creative non-violence v. Reid, (490 109 s Ct. 2166, 2179 (1989) underlined very clearly that “employee” must be understood in the sense of the rules of agency. More exactly still, this important decision distinguishes two categories of creators: those who are seen as employees, in the sense of the American labour law, and the independent creators, to whom we call on within the framework of the order contracts (which we shall present in the following news in brief). The judges, in the Reid decision went further on to determine the definition of employee by putting forward several criteria used in the Restatement of Agency § 220 (2) (document published by the American Law Institute, the institution grouping law and academic professionals). The definition of employee in the sense of the work made for hire implies that the employer has the right to control the way in which the work is made or gave the tools used for the creation. The methods of payment, the duration of the relation between the parties, are also indicators of an employed relationship. In posterior decisions, the magistrates had the opportunity to specify that certain factors could appear as more important than others, like, for example, the payment of welfare costs.
The employee creation will belong to the employer on the condition of having been realized within the framework of its functions. We can here lean on the British jurisprudence to illustrate this point.
The problem was very clearly put in the decision Stevenson Jordan v. MacDonald & Evans of 1952 (69 RPC 10, 10 TLR 101 (1952). In this case, the question was asked of who should be recognized as the copyright owner on conferences delivered by an accountant. Although the employer financed the conferences of the accountant, asked one of its secretary to type the texts of the latter and although the accountant was able to realize these seminaries on his working time, the judge considered that the copyright was his as far as the employer had not been able to demonstrate he had asked the accountant to make these interventions. To put things more clearly, the judge considered that an accountant is above all committed to advise his clientele and not to give conferences.
This restrictive interpretation will be resumed in the decision Noah v. Shuba ruled in 1991 (FSR 14 1991). Doctor Noah, who was employed by a hospital, had written a medicine book using the means of the hospital: the work had been typed by the secretary of the hospital and the hospital had been at the origin of the edition of the book…
The determining factor raised by the judge to give the copyright ownership to the doctor rested on the fact that the book had been realized at home during his evenings and weekends. However, it does not necessarily mean that any production realized in a private context or with its own means rules out this second criterion. The opposite has even been very clearly ruled in a decision Missing Link Software v. Magee FSR 361 (1989) about a software creation. Thus the interpreter has to be engaged in a rather fine casuistry to determine the contents of this second criterion.
In both systems, the opposite contractual stipulation is perfectly possible. This is clearly said in the article 201 b) of the Copyright Act (“unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright“). A paper is clearly required on this question. The discussion on the contractual stipulations is currently developing in the United States especially about the second set of works of the work made for hire: the order works.
In British law, it is admitted that an opposite stipulation, which is generally written, can sometimes implicitly result from uses. In the aforesaid case Noah in particular the judges considered that the absence of transfer to the employee, having nevertheless mobilized strongly the resources of his employer, resulted from the practice of the publishing house of the hospital to let the authors assert their copyright with the public.
