Probably many employees wonder who has the economic rights to the work for hire they create in the course of their job and, if these rights belong to the employer, whether the employees are entitled to additional remuneration for transferring these rights.
Unfortunately, the matter of employees’ work for hire is vaguely regulated by law, because authors’ copyright is the subject of merely 3 or 4 articles of the Act of 4 February 1994 on Copyright and Related Rights (Polish J .of L. of 2019, item 1231 as amended, further referred to “Copyright Act”).
First of all, it must be clarified that we can only speak of employees’ work for hire in an employee‑employer relation, and what is key for the whole matter is determining whether the work created by the employee fulfils the criteria of an employee’s work for hire. Pursuant to Article 12 para. 1 of the Copyright Act, if the act or employment contract do not state otherwise, the employer whose employee creates a work for hire within their duties resulting from their employment contract acquires the author’s economic rights in the scope resulting from the purpose of the employment contract and the parties’ mutual intentions at the moment of accepting the work for hire.
Explaining the above clause, it must be stated that the author’s economic rights to a work for hire created by an employee are acquired by the employer, on condition that a given work for hire was produced as a result of the employee performing his/her professional duties. The scope of this acquisition results, as a rule, from the purpose of a given employment contract and the parties’ mutual intentions. It must be added that the parties are free to stipulate this matter, as regards both the scope of the transferred rights and other acquisition conditions, such as the moment of rights transfer (regulated by the Copyright Act differently than software or than other work for hire) or relevant remuneration.
For a work for hire to be produced as a result of the employee performing their professional duties, the scope of the responsibilities of the author-employee must clearly specify whether creative work is within the employee’s scope of duties, and if so – to what extent. For example, if a person employed as graphic designer, creates a graphic design for the employer’s client, this work is considered work for hire. However, if an accountant designs her employer’s new logo, qualifying such a work as work for hire may be doubtful, since creating a logo is usually not included in the accountant’s job description (unless otherwise stipulated in the employment contract or internal policies, in particular the employee’s job description). It is similar in the case of the said graphic designer creating a graphic design outside of performing his/her professional duties, i.e. outside of their working hours and duties resulting from the employment contract – such a piece of work should not qualify as work for hire (unless the employment contract states otherwise).
Having established that we are dealing with a work for hire, the economic rights to which belong to the employer, we must determine whether the employee is entitled to any additional remuneration.
Unless the parties to an employment contract have agreed otherwise, the remuneration resulting from the employment contract includes payment for the transfer of economic rights to work for hire. A common solution is awarding the employee additional remuneration in the form of a bonus or prize, but doing so is the employer’s right, not obligation.
On a side note, it must be added that considering a work a work for hire does not influence the rights of an employee resulting from his/her statutory moral rights, including those regarding the integrity of the content and form of the work and its fair use.
To sum up, in order to check who holds the economic rights to a piece of work created by an employee, first we must see if creating such pieces of work is within the author’s job description. Settling the remaining matters regarding the work for hire, such as the scope of acquired economic rights or the possibility of additional remuneration, will mainly require a thorough analysis of the employment contract and the employer’s internal regulations (work and remuneration policies, collective agreements, etc.). However, due to the complex nature of this matter, it is recommended to consult every case of work for hire with a specialist.
author: Przemysław Barchan
