Ownership of Copyright in Works Created in Employment Relationships: Comparative Study of the Laws of Colombia, Germany and the United States of America
| Autor | José Roberto Herrera Diaz |
| Cargo | Abogado de la Universidad Javeriana. Maestría en Propiedad Intelectual en el Instituto Max Planck de Múnich, Alemania, en conjunto con la Universidad George Washington y el Múnich Intellectual Property Law Center (2007-2008). Actualmente se desempeña como abogado asociado al Departamento de Litigios de cavelier abogados |
| Páginas | 91-139 |
91
revista la propiedad inmaterial n.º 14 - 2010 - pp. 91 - 139
j h z*
introduction
Great quantities of copyrighted works around the world are produced in the context
of labor law Relationships. The ownership of these works has been regulated in
different ways by the national laws of each country, and the only attempt of legal
harmonization has been found in the European Community regarding computer
programs created in the course of employment. The sovereignty and territoriality
principles by with each country can enact its own laws in its territory to rule on the
ownership question has been applied by countries. As an example, Germany and
United States have regulated the subject in their respective national copyright laws.
Nonetheless, there are similarities in the ways that these two countries regulate the
ownership of economic rights. In other countries, such as Colombia, lawmakers
have established a legal rule regarding the ownership of moral rights in copyrighted
works, but have not ruled on the important issue of the economic rights in such
works. This ambiguity has caused legal uncertainty, raising the question as to
whether these types of rights belong to employees or employers.
This paper will make a comparative study of the laws of Colombia, Germany
and the United States of America, taking into account the current issues that can
arise in works created in employment relationships and the ensuing consequences.
The structure of the comparison will be focused on the following two central
points of analysis.
ownership of copyright in works
created in employment relationships:
comparative study of the laws of
colombia, germany and the
united states of america
* Abogado de la Universidad Javeriana. Maestría en Propiedad Intelectual en el Instituto
Max Planck de Múnich, Alemania, en conjunto con la Universidad George Washington
y el Múnich Intellectual Property Law Center (2007-2008). Actualmente se desempeña
como abogado asociado al Departamento de Litigios de cavelier abogados. E-mail:
joseroberto@cable.net.co. Fecha de recepción: 26 de marzo de 2010. Fecha de aceptación:
24 de septiembre de 2010.
Jose Roberto Herrera Diaz
92
revista la propiedad inmaterial n.º 14 - 2010 - pp. 91 - 139
ownership of copyright in works created in employment relationships…
First, this thesis will concentrate on the differences in the laws and case law of
the three countries with regard to the ownership of the copyright in employment
relationships. In order to determine how each country addresses the ownership
question, other aspects such as authorship and the differences between the author’s
right system and the Anglo American Copyright system (i.e., the treatment of moral
rights) will be analyzed as well. Likewise, the diverging theories underlying the
author’s rights systems in these countries, with Colombia being a dualistic system
and Germany being a monistic system, and the effect of the silence of the parties
to a contract with respect to the point of ownership, are both issues that must be
explored to render a thorough understanding of the subject.
Secondly, not only the differences, but also the similarities between each system
will be explored. In this regard, the paper will analyze whether, in works created in
employment relationships, there is a tendency of the monistic and dualistic author’s
right systems to approach to the Anglo American Copyright System. In other words,
any similarities between the laws and practices of Colombia and Germany and the
American “work made for hire” doctrine will be addressed. Most important, if the
philosophies by which the two main copyright systems were created are currently
applicable to works created in employment relationships. This issue will address
whether the interest in protecting the human being’s original expression and thus
the interests of the employed authors prevails over the interest in protecting the
utilitarian character of the works.
Furthermore, the study will focus on the topic of ownership as it relates to
specific kinds of works, such as computer programs regulated in the European
Community Directive 91/250. On this point for example, the same approach
will be followed, analyzing whether the German implementation of this direc-
tive is creating a tendency for the author’s right system to become similar to the
American copyright system.
Despite the fact that the focus of the paper is on copyright provisions, some
aspects of labor law, such as scope of employment and employment relationships,
will be analyzed in order to have a integral understanding of the topic. Since labor
law provisions and copyright provisions are different fields of law, the difficulties
that may arise in knowing which area of law to apply will be examined.
Finally, issues concerning to works created by independent contractors in
Colombia, Germany, and the United States will be analyzed, in particular the
same copyright provisions regarding the ownership of the works that can apply
to employees and independent contractors. In a similar context, the treatment of
works created by public servants or private employees may reveal similarities and
differences to the treatment of public employees in these three countries.
ownership of copyright in works created in employment relationships…
93
revista la propiedad inmaterial n.º 14 - 2010 - pp. 91 - 139
i. why works created in employment relationships?
When the topic under study has been analyzed in the legal literature, the usual
terms by which the authors refer to it are: works made for hire,1 works created by
employees,2 or works created in employment relationships.3 This diversity of terms
creates a difficulty to analyze the subject, as the significance of each expression
may bring different results on the ownership point. For instance, the first option,
work made for hire, is a popular term for common law countries in which the
employer is considered the author and owner of the copyright. The problem using
this term is that is of no use in continental tradition countries where in almost
all the situations the authorship of the copyright vest in the employee, as well as
the ownership of the moral rights. Regarding the second option, works created
by employees, despite being common in the continental tradition countries, in
which usually the authorship and ownership vest in the employee, one may find
difficulty in establishing if the work is always created by an employee. In some
cases, the original expression of the copyrighted work may come from the employer
and the employee’s freedom to produce the work can be limited by the employer’s
orders. For instance, an employer that is dictating a literary work to his secretary
cannot be prevented from being the original author of the work, despite the fact
the secretary fixed the expression of the copyrighted work. Thus, one must carefully
observe the term creation, because in the context of an employment relationship,
it can cause misleading interpretations such as, for example, that every function
of an employee constitutes creation. For these reasons, it is more impartial to use
the concept works created in employment relationships, since it addresses not only
the employers’ interests, but also the employees’.
ii. what is an employment relationship?
Before entering into the analysis of the Copyright law, it is necessary to understand
the concept of employment relationships.
The International Labor Organization (ilo) has identified three common
elements in labor law contracts around the world.4 Those elements are not always
defined by the law or case law of each country. However, not only the ilo, but
also the labor law doctrine in all the countries of the world, have established a
1. Goldstein, Paul: International Intellectual property law. Cases and Materilas - New
York : Foundation. 2D. 2008, at 214.
2. Christine Kirchberger, Ulrika Nyh, Silvina Penaloza, Hanna Sepanen and
Kerli Tults. Ownership of the Copyright and the Patent Right in Works Created by
Employees. Finland, Sweden, Austria, UK, Estonia, and Argentina. Sanna Wolk (ed.)
2002, at 1.
3. Yu Du and Matthew Murphy. mmlc Group. Intellectual Property in the Employer and
Employee Relationship in China. at: http://www.hg.org/article.asp?id=5341.
4. oit. Contratos de Trabajo, at http://www.ilo.org/public/spanish/dialogue/themes/
ce.htm#ci.
Para continuar leyendo
Solicita tu prueba
COPYRIGHT Universidad Externado de Colombia
