The Copyright Act regulates copyright protection in various ways. They are worth getting to know, especially if we work in the IT industry. Most IT industry employers are aware of the existence Article 12 Copyright and Related Rights Act (hereinafter: ‘pr. auto’).
It states that the employer acquires copyright upon acceptance of the work created by the employee, in the performance of duties arising from the employment relationship. Thanks to this provision, employers, when signing an employment contract involving the creation of works, do not pay much attention to securing copyright rights.
However, the law or contract may otherwise regulate this issue, which not every employer remembers.
In order for copyrights to be passed on to the employer, he must accept the work, and so simply accept it. The Act does not impose any requirements on the form of this activity.
When doing the work, I mean...
It should be pointed out that for the transfer of copyright to an employer, it is crucial that the activities resulting in the creation of the work are strictly the activities which constitute the content of the employment relationship.
Most often these will be activities consisting of a detailed description of the employee's obligations towards the employer. Therefore, if the work is created by activities of a non-professional nature (e.g.
when an office worker writes a book during working hours), the work will not be a work of employment even if the employee transfers it to the employer.
In order for copyrights to be passed on to the employer, he must accept the work, and so simply accept it. The Act does not impose any requirements on the form of this activity. Consequently, the employer may accept the work either orally or implicitly, depending on the habits of the workplace.
Specific category of workers
However, the situation is complicated when the employment relationship between the programmer and his employer is involved. This is related to the fact that the works created by the programmer are computer programs which, under Polish copyright, have a special status.
Although their protection is similar to that provided for literary works, the Act contains a number of specific provisions introducing numerous derogations from general principles, including excluding the application of certain provisions. This issue is quite important.
This is no different for the abovementioned ‘twelve’. By Article 74(3) s. cars, which is a special regulation in relation to Article 12 the employer acquires the car in an original way 1 copyright to the computer program as soon as it is established. However, it is also possible to regulate this issue differently in the employment contract.
The concept of the arrangement is to express the work in any form, even if it is unfinished.
In the translation into the programming ground, the setting of the work will take place primarily when the programmer writes the solution in the form of source code, but also in the case of drawing up detailed technical documentation, which in itself is sufficient to recreate the computer program by other developers without any creative input from them.
Simply put, every time an employer acquires proprietary property rights to the program or part of it, as soon as the source code is introduced into the programming environment.
This means that the programmer's making any subsequent creative changes to the code, or using it for his own use, will be an entry into the employer's copyright monopoly.
Consequently, it is extremely important that the programmer's employment contract includes an appropriate mandate to exercise part of his copyright to the extent necessary to provide his work.
The only way to safeguard the full interests of the entrepreneur, for which the programmer provides his services under a B2B contract or other civil law contract, is to enter into a contract of appropriate provisions governing the manner and moment of the passage of copyright.
B2B Developer
In the light of the above rules for reflection, the syntax of the fact that recently in the IT industry a significant increase in the popularity of B2B contracts can be observed, which slowly begin to displace among programmers of the employment contract.
This is a convenient solution for both parties, as the burden of paying the necessary insurance contributions is removed from the shoulders of the contracting entity and the programmer on such a contract receives a higher remuneration, in return for taking over insurance and tax obligations.
However, it should be borne in mind that while the failure to regulate the transition of copyright in the employment contract does not give rise to any consequences, B2B contracts may lead to a situation in which the contracting entity does not acquire copyright at all and, often unwittingly, will illegally exploit the results of the programmer's work.
In addition, in IT companies, some programmers are often employed on the basis of a contract of employment, while some provide their services on the basis of B2B contracts or civil law contracts, which poses a serious problem in terms of copyright protection. It is worth remembering that the above called Article 74(3), and Article 12 car.
apply only to employees, i.e. persons with whom employment contracts have been concluded. Other programmers, unless, of course, the agreements provide otherwise, retain copyrights on their programs.
What is a significant feature of the IT industry requires action in software teams, in which each member deals with specific tasks, striving together to create, for example, applications.
In view of the diversity of legal relations between programmers and an IT entrepreneur, it is not difficult to imagine a situation in which each member of the team provides their services on a different basis.
If there is no mention of copyright in the contracts linking them to the entrepreneur, it will acquire rights only to the part of which its employees will create – and in the rest of the scope, copyrights will be created only for the creators of individual parts of the programme.
This will lead to the creation of the so-called common copyright for the benefit of the entrepreneur (who acquired them initially when the work was established by the employee) and co-creators of the computer program.
This is very important because of the content Article 9(3) This means that to exercise the copyright to the whole work – and thus the entrepreneur will usually use the program – the consent of all co-workers is needed.
So how do we protect the interests of the contracting entity?
The Copyright and Related Rights Act is strict in terms of transfer of property copyright and does not provide for solutions that would enable the entity ordering the acquisition of copyright from the programmer without concluding a written agreement on the matter.
The only way to safeguard the full interests of the entrepreneur, for which the programmer provides his services under a B2B contract or other civil law contract, is to enter into a contract of appropriate provisions governing the manner and moment of the passage of copyright.
However, it should be remembered that the entrepreneur, regardless of the solution adopted in the contract, will always acquire copyright in a derivative way – they will initially be created for the developer.
1 In the simplest sense, the initial acquisition of the right means that the right has been conferred on the entity since its inception. They can be opposed to the acquisition of a derivative, which involves taking over the right from another entity to which it had previously been granted.