Creator, not necessarily the company, holds the copyrights
Ah, how times change. The other day, I received a birth announcement from a college friend. In addition to the usual information, such as the baby's height and weight, the announcement also made a pitch to visit the baby's web site to see the latest photos. Less than a month old and the baby is on the web.
As a lawyer and mother, I pondered the implications of this fact. Would my daughter be stunted for life because I did not set up a website when she, Natalia, was a mere babe? Probably not, as the highlight of her day, as a 2 year old, is watching a purple dinosaur that sings off key. However, this is likely to become a sticky issue later once Natalia realizes that a computer keyboard can be used for more than just a pounding board. And I will likely have to hire someone to design a site for her. (No person believing that UFOs are going to rescue them from a doomed earth need apply!)
But this leads to the legal quandary. Who will own the copyright to the design of my daughter's site: my daughter? I, as the employer? Or maybe the designer that
wasn't rescued by the UFO?
The advance of technology often forces lawyers to re-examine some fundamental legal notions. In this instance, the issue of who owns the copyright to a work, whether it be a manuscript, a sculpture or a design of a website, is one of those issues.
In general, copyright law provides that the person who created the work, its "author," holds the rights to it. This means that neither I, who had the idea to set up the website, nor my daughter, who is the subject of the website, would hold the copyright to the design. Yes, that copyright is likely to be held by the designer, unless one of the exceptions to the general rule applies or the designer assigns his/her rights to me.
One of the major exceptions to this rule lies in the work-for-hire doctrine. Under this doctrine, an employer holds the copyright to works created by employees. Unfortunately for me, one of the major limitations to the work-for-hire doctrine is that it only applies to employees, and not independent contractors.
Let's change my example. Company X has hired an employee to design and maintain its website. We now have an employer-employee relationship and a job description that involves this creative activity. Would Company X be the owner of the copyright in the design of its website?
The work-for-hire doctrine holds that, upon acceptance of the work, the employer is deemed the owner of the property copyright in a work created by an employee, acting within the scope of his or her duties and consistent with the agreed intentions of the parties. Under this distinction, Company X probably does not own the rights to a history of UFOs written by its website designer, but likely owns the rights to the design of its website. As a side note, the fact that an employee created a work on company time and using company resources will not necessarily turn that history of UFOs into a work for hire.
Even if an employee's work is deemed a work for hire, an employer does not have free rein to make any use of that work. Polish copyright law, as is the case with the copyright laws of most European countries, makes a distinction between the moral and property rights of an author. An employer receives only the property rights, and not the moral rights, to the work made for hire. The property rights are, simply speaking, the right to derive revenue from a work.
The moral rights of an author are more ephemeral. Polish copyright law defines "moral rights" as including the right to claim authorship, to put one's own name or pseudonym on the work or to disseminate the work anonymously, to preserve the integrity and the proper use of the work, to make the decision on first publication and to supervise any use of the work. The moral rights of an author are perpetual and non-transferable. An agreement to assign the moral rights of an author is not enforceable.
Some types of works, most notably computer programs, are treated somewhat differently under Polish copyright law. Most importantly, with respect to computer programs, the agreed intention of the parties' requirement is absent. Rather, the employer need show only that the computer program was developed by the employee in the course of his or her duties to the employer. As with other works for hire, the employer receives only the property copyright to computer programs, but the moral rights of an author of a computer program are fewer than those of other authors. Authors of computer programs have only the moral rights of authorship and placement of their names or pseudonyms. As a practical matter, however, respecting the moral rights of employee-authors should not cause employers significant difficulty or hinder their use of works for hire.
Determining who holds the copyright in a work is important because relatively severe penalties are attached even to an unintentional infringement of someone else's copyright. Polish copyright law provides copyright owners whose rights have been infringed upon an arsenal of remedies against the infringer, including monetary fines, injunctions, confiscation of equipment used in the infringement and prison terms of two to five years. While penalties are heightened in cases where the copyright infringement was deliberate, unintentional infringement is not exempt from punishment.
Being an employer is not the only means to acquire the copyright. The solution for my personal quandary would be to have the designer assign his/her rights in the design of my daughter's website.
Judith Gliniecki is a senior associate with Hunton & Williams' Warsaw office.
