May 3, 2019
When you do creative work in an employment relationship, it’s important to make sure that you and your employer have agreed on copyrights in sufficient detail. You should always have a written agreement, reminds our Lawyer Sanna Häikiö.
If your work tasks include the creation of computer software or databases, the related economic copyrights are automatically transferred to the employer. This is declared by the Finnish Copyright Act. However, this statement may raise questions if you have not completed the entire software during your working hours, but partly on your own time, or if you switch employers and complete the work at your new place of employment.
In addition to software and databases, all other creative work carried out at the work place in Finland is also protected by copyrights − pictures, music, moving images, design, architecture, text and performing arts. The holder of a copyright to a work created in an employment relationship and protected by copyright is always the employee, and the transferral of rights to the employer must be agreed upon in the employment contract or by some other agreement. If nothing else has been agreed, the starting point is that the employer will receive the right of use to the work to the extent required by the company’s line of business and the right for any other use of the work remains with the employee.
In my work, I constantly see many interpretation disagreements and disputes in relation to the transfer of copyrights. The law protects only in certain situations, and many practices are based on agreements between the parties. This is why it’s important for each author and commissioner of creative work to know copyrights a lot better than now.
The creation of computer software and databases is the only creative work task whose copyrights have been defined rather clearly in the law. Even so, there are a lot of space for interpretation.
“Can you find the clause in your employment contract?”
The best thing to do is to always agree in the employment contract whom the copyright belongs to in each situation and to what extent. Some collective agreements include copyright clauses and different industries have different practices. Unless otherwise agreed, the employer will receive at least the right of use essential to their business to your work. What, then, is considered as essential? This question is the start of many disagreements.
What mostly remains ambiguous is, for example, to what extent are the rights transferred to the employer − can the employer use the text you wrote for the company magazine for marketing purposes without a separate consent, for example, or to what extent can the employer alter such works.
If you think your employer might be misusing your works, the first thing you should do is to take a look at your employment contract and see whether it includes a clause regarding this. Often it does. This is a good solution even for the employer: when each employment contract has a standard clause on the transfer of copyrights, there is no need to discuss it separately with each employee.
“Commercial art is not necessarily covered by copyright”
Too many people think that all creative work is automatically governed by copyright. However, copyright is only created when the created work is sufficiently original and unique, i.e. it meets the threshold of originality. Let’s look at the design world as an example. When designing commercial art, such as furniture, the threshold depends on what kind of a furniture receives copyright protection and when is the threshold of originality not met. Legal praxis has followed the principle that the threshold of originality for commercial art is high, which means that furniture, for example, is more strictly considered to have copyright than other works.
To not make things too simple, copyrights are divided into economical and moral rights. Economical rights relate to the ways of commercially exploit the work. Generally, the agreement is to transfer copyrights created during employment completely to the employer, except for the moral rights which remain with the author. If the right of ownership to the work is transferred to the employer, the author is in principle not allowed to use the work afterwards unless otherwise agreed.
Money is generally not transferred as part of the deal when creative work is included in the work description and salary. Sometimes there are certain commercialisation agreements or royalties if the product is, for instance, widely commercialised.
Moral rights, such as the right to be acknowledged as an author and respect rights, have to do with the author’s honour and can never be fully transferred to someone else.
“The essential thing is to separate right of ownership and right of use”
The employer and employee must clearly define the right of ownership and right of use for works that were created during working hours. These are mostly interpreted on a case-by-case basis. Principally, the employer receives the right of use within their industry for works created during employment and working hours. However, the rights must be clearly limited and it must be defined which rights the employer will receive and which remain with the employee. This is the only way to make the limits of use and rights clear for both parties.
For example, it can be agreed that the employer will receive the right of ownership to videos the employee has made, and can utilise them however they wish as long as they do not breach the author’s moral rights, for example, use them in a disgracing manner in the author’s name. This means the film-maker cannot use the videos for their own purposes unless the right of use has been agreed upon. Alternatively, it can be agreed that the employer will receive the right of use for the videos, i.e. can use the videos in everything that is naturally related to the organisation’s operations, and the film-maker can utilise the works in other connections.
“Even social media has applicable copyrights”
Digitalisation has increased the number of disputes that relate to the interpretation of copyrights, as utilising works in different channels and on different platforms has created entirely new questions. Even though employers are increasingly educated and employees understand their rights better than before, the lack of clear legislation is constantly producing questions of interpretation.
A good example is social media. If, for example, copyrights for photographs have been transferred from an employee who took photos to the employer, and the employee has taken good portraits of the company’s employees during working hours, the employee is in principle not allowed to share the pictures in their own social media channels. Before sharing any copyright-protected materials on social media, the rights should be defined carefully.
“Expert help is often necessary”
Some employers offer copyright clauses in employment contracts − and if they do not, demand it.
When agreeing on copyrights, it’s a good idea to carefully define the rights of each party. Are you talking about the right of ownership or the right of use and to what extent? Does the copyright apply to the employer’s industry or is it more or less extensive? Besides your salary, is there any reimbursement for the rights and how long are they valid, i.e. are they transferred to the employer for a limited time or forever?
If you are at all unsure about what kind of an agreement you should make, turn to an intellectual property expert. We are constantly dealing with IPR-related practices and format contractual clauses that leave as few matters open to interpretation as possible.
”What happens to the right if I switch jobs?”
The law does not specifically define who is allowed to use a work created in an employment relationship later on when its author moves on to another work place. If nothing else has been agreed, the starting point is that the right of use for works the employee has completed during their employment will remain with the employer, regardless of whether they were protected by copyright or not. It is therefore important to always have an agreement on this and to also consider certain matters related to loyalty and prohibition of competition.
It is also good to note that even if you did something during working hours, it does not mean that the copyright is automatically transferred to the employer. If you work as the company photographer and happen to see a beautiful butterfly in the park during your working hours, take a picture of it and win a nature photograph competition with the picture, it’s clear who the copyright belongs to: you − unless nature photography relates to the company’s line of business and your work description and nothing else has been agreed upon.
“Breaching the copyright may result in punishment”
Sometimes the decisive factor is the nature of the employment relationship. For example, many illustrators work as freelancers and agree on the transfer of copyright to their works outside of an actual employment. This happens, among others, in exchange for a one-time fee or by royalty agreements, which means the employer is under certain conditions allowed to utilise the works in their business, but the author receives a reimbursement based on, for example, a percentage according to the sold pieces. In an employment relationship, the copyrights to the created works would principally transfer to the employer in the extent required by the employee’s line of business, and the reimbursement is generally considered to be included in the salary.
Other subcontracting relationships should also be separated from employment relationships, and it’s important to agree on the right of use and ownership rights to the work even here. In addition, it should be kept in mind that a company can never be the original holder of a copyright, as the author is always a human.