Works created by a worker that fall within the scope of the employment contract or statutory employment
Since copyright is granted to the creator of the work, it will be the worker, employee or staff member under statutory employment, and not the employer, who will have the rights over what he created under his employment contract. However, this is not the case for software, databases and designs
The employer will, therefore, not be able to use what is created by the employee/worker/statutory worker without his their authorisation. Likewise, he may not transfer any rights to this work to the client who has commissioned it.
This situation may be awkward, especially when the employment contract has ended and the employee/worker or statutory worker is no longer with the company.
The employer can avoid this situation by having the employee/worker/statutory worker transfer the economic rights to the creation.
For employment contracts concluded after 31 July 1994, the transfer of rights must be made expressly and in writing. This can be done, for example, in the employment contract or a separate agreement, or in the statutory contract. This could also be provided for in the work regulations, provided that it can be proven that the worker is actually aware of it.
It is advisable to draft this transfer agreement clearly because, in the event of uncertainty, it is provided that an interpretation favourable to the worker prevails. A general clause may be provided for which specifies that copyright in all works created by the worker in the course of his work is transferred to the employer.
Even if he was granted economic rights over his employee’s work, the employer must, nevertheless, respect the author's moral rights over the work. Moral rights are in fact inalienable and any promise made by the worker not to invoke him would be null and void. The same applies to statutory workers (more details on the inalienability of moral rights).
Works created by a worker and which do not fall within the scope of the employment contract or statutory employment
A copyright transfer agreement, as referred to above, is only valid with respect to works created by the worker that fall within the scope of the employment contract and the mission entrusted to him.
The rights to works created by the worker outside the employment contract will only be transferred to the employer, if the latter so wishes, under much stricter conditions of validity that apply to transfers of copyright outside the employment contract.
