Izvorni znanstveni članak
Copyright to publications produced within the framework of regular employment and made to order
Igor Gliha
Sažetak
Authorial publications by another person, including those created within the framework of regular employment and those made to order, may be used only on a special legal basis, either with the author's consent or on the basis of a legal regulation directly permitting to use the authorial work. Copyright and droit d'auteur legal systems are based on different paradigms: the former focus on the protection of the object - the author's work, while the latter on the protection of the subject - the author, as the creator of the authorial work, which results in differences in the regulation of the right to use authorial works created within the framework of regular employment. Droit d'auteur legal systems are dominated by the principle of authorship in acquiring the copyright so that, as opposed to the copyright system, investing into the creation of an authorial work, or organising transactions related to the creation of an authorial work, have no legal effect on the establishment of copyright. Legal persons cannot be authors because they have no ability for intellectual creation although they are capable of expressing their will.
When an authorial work is created within the framework of employment, the obligation to carry out intellectual work should be distinguished from the obligation to consign the authorial work as a result of intellectual work and the acquisition of the right with the contents which authorize the use of an authorial work. In Croatian law, employment does not mean that the employer has the right to use authorial works created within the framework of employment. In order to acquire the rights to use the contents of an author's work, the employer needs a special contractual clause providing the basis for the acquisition of the right to use the authorial work, since in the Croatian legal system the employer is not entitled to an authorial work created within the framework of employment. The only exception to this rule is the creation of software as part of the employment duties in which case the employer is entitled to use such software, which is a unique solution in a number of European states, following from the regulations of the EC Directive on the legal protection of computer programs.
Employment within the framework of which an authorial work has been created is defined as a relation in which the author is dependent on the employer in terms of salary, work with the employer's resources, subordination to the employer's plans and programmes, place of work and working hours, so that the creation of authorial works is not a result of the author's independent entrepreneurship.
An authorial work made on order is the one which is created as fulfilment of the contract on the creation of author's work on the basis of which the author is obliged to consign a copy of the authorial work of certain characteristics to the ordering party. By consigning a copy of an authorial work, the ordering party becomes the owner of that copy, but acquires the copyright only if this has been stipulated in this way in the contract or other legal transaction. Unless defined otherwise, the author retains his copyright without limitations.
Upon passing of the Law on Copyright and related rights of 2004 there have been major changes in the assignment of ownership of authorial works created within the regular employment in Croatian law. These changes are characterized by greater freedom in the regulation of relations between employers and employees when obligations resulting from regular employment consist of the creation of authorial works on the one hand, and greater commitment in the regulation of these relations on the other. The application of the Law on the use of authorial works created within the framework of regular employment has been postponed for three years, until 30 Oct. 2006. The harmonization with new regulations is carried out by modifications of individual employment contracts, but they can be applied by means of collective contracts or other reciprocal acts regulating relations between employers and employees, and cannot be carried out by one-sided acts by employers, such as employers' statutes, because the employer is not entitled to dispose of the subjective author's rights.
Ključne riječi
copyright; authorial works made to order; employment; software; audiovisual works
Hrčak ID:
6466
URI
Datum izdavanja:
5.12.2006.
Posjeta: 10.897 *