Ordinary story. But not the easiest
As a rule, developers create their own business, already having several mind-blowing ideas in their heads. Which, attention, they have already begun to implement in their previous place of work. Nobody jumps from a quarry.
In this article, we’ll talk about how to protect the employer from workers who, wanting to leave the company, want to bring along a few tens-hundreds of developments and valuable ideas.
First of all, remember : ideas are not protected by copyright . Protection is subject to their implementation in the form of created products: text, source code, picture.
Development is easier. It is enough for the employer to build a harmonious system of managing intellectual property in the company in order to sleep peacefully and, in case of a dispute, not try to draw up evidence retroactively.
Now in order.
An official work is a work of science, literature or art created within the limits of labor duties established for the employee (author) . If the product from the very beginning has the status of an official work, the rights of the employer and the author (group of authors) are distributed as follows:
- The author (employee, group of employees) is assigned personal non-property rights to the work - the right of authorship (the right to be recognized as the author of the work), the right to the name (the right to use or allow the use of the work under his own name, under an assumed name (pseudonym) or without indicating a name, then ie anonymously), the right to inviolability of the work (not allowed entry in the product changes, cuts and additions, supply the product when it is used illustrations, foreword, afterword, to paraphernalia or whatever it was the notes). These rights are inalienable and non-transferable; a waiver of these rights is void. For their occurrence, only the fact of creating the work in an objective form is required. A logo is created, the source code is written - personal non-property rights automatically arise from the author or a group of associates. The employer is not entitled to disregard copyrights: liability may be incurred for this. For example, the author may claim compensation for non-pecuniary damage.
- The employer is assigned exclusive, i.e. property rights to the work . The employer receives the right to use the work at its discretion in any way that does not contradict the law. For example, sell the rights to a work. Or prohibit its use. Or, conversely, allow others to use the work.
Each time, when establishing whether a work is official, the courts examine whether the task was to create a specific work within the scope of the employee's official duties :
- if the employer did not give a specific task, the created work is not official, and the employee has the exclusive right to it.
Moreover, even if the author used materials belonging to the employer when creating the work, this does not give reason to believe that the created work is official . And in the event of a dispute between the author and the employer, the content of the employee's job duties and the fact of creating a work within them are proved by the employer.
In order for a work to acquire official status, the employee must have an obligation to create it. And it is the employer who must endow him with this duty.
How to oblige an employee to create a work?
1. Conclude an employment contract with the employee . Works created under a civil law contract are not recognized as official, exclusive rights to them belong to the authors.
2. Written to establish the obligation of the employee to create works within the framework of official duties .
2.1. In the employment contract : “The employee is obliged to draw up design documentation. Drawings and sketches created as a result of the employee’s labor are official works. ”
2.2. In the job description : the more specifically responsibilities will be described, the better. The actions of the employee should be described as detailed as possible and indicate the creative nature of the work performed.
2.3. In local regulatory acts , which may include:
- Agreement on the distribution of exclusive rights to labor results
- Regulation on the creation of official works
- Rules for setting tasks for employees
- An order to start work on a project with a clear description of the results that are planned to be achieved
- Regulation on the creation of employee reports on works created under an employment contract
2.4. In the employee’s reporting documents to the employer :
- Order on job assignment for a specific employee
- Job Performance Report
- Act on the transfer of the result of the performance of an official assignment, signed by both parties to the employment contract
What else should the employer take care of?
- The employer must maintain the status of the official work through its use . Within three years from the date of receipt of the work of work at the disposal, the employer must: either start using it , or transfer exclusive rights to it to third parties , or inform the author about keeping the work secret . Otherwise, the exclusive right to it will be returned to the author.
- The employer must pay the author a reward for using the work .
It’s worth remembering once and for all: wages cannot include remuneration. The award under the employment contract is not remuneration. The size of the remuneration, the conditions and procedure for its payment by the employer are determined by the agreement between him and the employee, and in case of a dispute, by the court.
In conclusion : we are still free to conclude contracts . Therefore, the exclusive right to an official work belongs to the employer only if the labor or civil law agreement between the employer and the author does not provide otherwise.
The parties by their agreement are free to establish other procedures for the distribution of rights to a work.
In any case: think about who will own the rights to a particular object of creativity, you need in advance. In order not to waste time, time, money on resolving disputes, and most importantly, not to spoil the relationship with your employers / employees.