There has been published a very useful guide for consumers and for anyone who is curious about copyright. This guide explains different things, relating to IP rights, in simple way. The project has been commissioned by the European Union intellectual property office.
The Guide aims to give ‘answers to the most frequently asked questions (FAQs) average consumers have in relation to copyright for all twenty-eight EU Member States.’ The present Summary Report highlights the convergences and differences in national copyright laws in relation to the 15 consumer questions.
Normally, the author of a work, namely, the physical person who created the work is the initial owner of the work. This entails that initially, the author has all economic and moral rights relating to the work he or she created. Exceptions to this rule exist, for example, as regards works (and notably computer program) created in the course of employment or in the framework of an audio-visual production. The author, as the initial owner, may transfer his or her rights — at least the exclusive economic rights — to others; this usually happens by means of licensing agreements.
Works created in the framework of employment may serve as an example of differences relating to initial ownership. In many Member States, the copyright initially arises for the author, and (at least the economic rights) are subsequently transferred (at least in part) to the employer (as pointed out by, e.g. the experts from Belgium (BE), Bulgaria (BG), Denmark (DK), Germany (DE), Estonia (EE), Greece (EL), Spain (ES), Croatia (HR), Hungary (HU), Austria (AT), Slovenia (SI), Finland (FI), Sweden (SE)); the transfer usually covers uses necessary for the purpose of the employer’s business. Conditions of the transfer vary. In practice, this often entails that ‘the creator will not be entitled to a specific remuneration, apart from his salary or commission’.
Notable exceptions to that principle are computer programs, in the case of which economic rights will vest in the employer (see, e.g. BG, IT, Luxembourg (LU), Poland (PL), LV, MT, Romania (RO), FI). In France, with the exception of collective works, audio-visual works, computer programs and works created by civil servants and journalists, ‘the existence or conclusion of a contract for hire or of service by the author of a work of the mind shall in no way derogate from the enjoyment of the right afforded to the author. The transfer of the rights supposes a specific contract.’ It might be noted that the French system is known to be particularly protective of the interests of authors.
Works created in the course of employment are frequently used as an example to illustrate the differences between common and civil law copyright systems as regards initial ownership: ‘common law jurisdictions generally recognise that where a work is created by an employee acting in the course of his or her contract of employment copyright in that work will first vest in the employer’.
In the United Kingdom, the employer is considered the first owner of copyright. In Cyprus, employers and producers may be copyright owners ‘either initially (through the entrepreneurial copyright scheme) or by transfer’. In Malta, apart from computer programs or databases, ‘it must be expressly provided in the contract of employment that copyright is being transferred to the employer, otherwise the presumption at law is that copyright would be deemed to vest in the author or joint authors.’ In the Netherlands also, ‘Unless otherwise agreed in writing, the employer is deemed to be the author of works created by the employee under the employment contract.’
As regards transfers of ownership, the moral right cannot be waived in many Member States, or only to a certain extent (this was noted, e.g. by the experts from the Czech Republic (CZ), EL, LV, LT, PL, FI, but also applies to other Member States). In practice, this means that even when a third person exercises the economic rights relating to a work, that person must respect the author’s moral rights, for example, of paternity and integrity. It was also noted that certain rights of remuneration are not waivable. This means that an author will always maintain a claim for remuneration for certain uses, where the law provides so.