- Is the author in fact an employee? And
- If so, was the work created in the course of employment?
- An employee is defined as someone employed under a contract of service. The courts will consider the contract as a whole, to see if it is strongly indicative of one form of relationship over another, taking into account factors such as:
- the degree of control being exercised,
- the provision of tools or equipment,
- entitlement to holidays,
- sick pay and
- the tax arrangements.
Sunday, October 17, 2010
Do You Own Your Intellectual Property - Copyright by Maria Anassutzi
It is important first of all to ascertain whether the author is an employee as opposed to a consultant or freelance. In this regard, two questions must be clearly answered:
Having established that, the creator is an employee, in order to benefit from the statutory ownership provisions, the employer must show that, the work was created "in course of [the employee's] employment".
So, careful consideration must be given how this is defined in the contract of employment, including part-time, working from home etc.
As with all non-employees, consultants will, by default, own the copyright in the works they create during the consultancy. This applies even if they have been expressly commissioned to do the work.
So, for example, freelance photographers, portrait artists and consultant computer programmers will all be the first owners of their works, in preference to the person paying for their services. If this is not desired, then an assignment of the copyright must be put in place and, in event, the terms and scope of any licence should be clearly defined. As an assignment of future works, the best place to deal with it, is in the letter or terms of engagement.
Maria is founder and director of Anassutzi & Co limited a specialist legal and business strategy consultancy having previously held a number of senior positions including being partner and head of IP/IT in London. Maria speaks fluently Greek, Italian and has basic knowledge of the French language.
Maria is a seasoned multi-jurisdictional lawyer with vast experience in general corporate commercial law, specialising in intellectual property, information technology, e-commerce and outsourcing and having extensive in-house legal experience and having worked in City law firms and multinational companies.
Posted by Brian Scott at 6:53 AM