Copyright & Moral Rights

Unwrapping copyright and moral rights:  To waive or not to waive?

 

This article is an adapted and summarised version of the original article:  Moral Rights: To Waive or not to Waive The Right of an Employer, by Dr Kleyn, Madelein, published in the International In-House Counsel Journal Vol.11, No. 44, Summer 2018, 1.

 

The article considers intellectual property and copyright (as per the TRIPS Agreement) and moral rights (as per the Berne Convention) in the employee/employer relationship.

 

Copyright

 

The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is an international legal agreement between all 164-member organisations of the World Trade Organization (WTO). While TRIPS is a comprehensive multilateral agreement on intellectual property rights, this article focuses on aspects of copyright and related rights in an employer/employee relationship.

 

One of the basic international principles of copyright law is that the creator or author is the owner of the copyrighted work created. Generally, copyrighted work by an employee is attributed to and owned by the employer by default during the employee’s period of employment. This employment practice is accepted widely because businesses employ and invest in employees to develop new technologies or products, to design and develop new protocols, to improve processes and to develop new markets. Therefore, the exchange of benefits that employers expect is ownership and the commercialisation value of intellectual property created by employees.

 

In the absence of an explicit agreement in this regard, who owns intellectual property created in the course of the creator’s employment?

 

Employers can guard against legal problems by inserting the expression “in the course of employment” in their agreements of employment to define the work relationship as (1) a contract of service (i.e. the other party is an employee) or (2) a contract for services (i.e. as the other party is a freelancer or independent contractor). An independent contractor’s work remains the property of the creator, unless copyright ownership has been assigned otherwise in writing, explicitly referring to contracted work as “made for hire”.

 

Although ownership rights are assignable, does the same apply to moral rights?

 

Moral rights

 

While copyright carries economic value, moral rights –- the other side of the “copyright coin” – is conferred on the individual creator.  Infringement of moral rights does not safeguard the creator’s reputation and association with the work – creators retain these rights even after departure from life.  Moral rights are subject to national law, and some countries go beyond the international standard set by the Berne Convention to include the following rights:

 

In an international context, copyright is governed by the laws of the country where the creator was present at the time the work was created. Therefore, multinational organisations and creators must ensure that they are informed about the different legislative environments that govern the transfer, assignment and waiver of moral rights in and to copyrighted work. Some countries require written agreement to affect the assignment of the ownership of a work. Moral rights, being personal rights, are not assignable. Legislation in some countries allows for moral rights to be waived, provided that the creator has signed a written agreement.  In other countries, even if a waiver or consent has been granted in writing, such agreement is void and unenforceable because moral rights cannot be waived under the law of the land. 

 

Given the complexity of the legislative frameworks, it is in the interest of employers to seek legal counsel and to take into consideration the law of contract that governs written assignment and waiver of rights.

 

The table below compares 16 countries regarding copyright being assignable and waiver of moral rights being allowed.