Managing the Legal Nexus Between Intellectual Property and Employees

Managing the Legal Nexus Between Intellectual Property and Employees

Domestic and Global Contexts

Elgar Law and Entrepreneurship series

Edited by Lynda J. Oswald and Marisa Anne Pagnattaro

The explosion in intellectual capital coincides with a growing understanding of the importance of human capital to the firm. This book examines the pressing legal issues that arise at the intersections of intellectual property law, employment law, and global trade, such as the use of employment contracts to protect intellectual property, ownership of intellectual property created by the employee, officer liability issues relating to infringement, post-employment confidentiality and non-compete agreements, and inadvertent or deliberate misappropriation or theft of trade secrets.

Chapter 8: Who owns employee works? Pitfalls in a globally distributed work environment

Susan J. Marsnik and Romain M. Lorentz

Subjects: business and management, international business, law - academic, intellectual property law, international economic law, trade law, labour, employment law

Extract

Two seminal questions in any nation’s copyright law are: (1) Who has the right to claim authorship and ownership of a copyrighted work; and (2) what is the scope of those interests? Determining who owns a copyrighted work can be complex. In general, the person who creates a copyrightable work is both the author and the first owner of the work. However, under the United States work-for-hire doctrine, if an employee creates a work within the scope of employment, the employer is automatically both the author and the owner of the work. Certain statutory categories of commissioned works are also considered works for hire and are subject to similar default authorship and ownership rules. If a work is commissioned from an independent contractor in a category other than a statutory category, the independent contractor remains both the author and the owner, unless the parties agree otherwise by contract. This is not the legal framework throughout the world. Copyright laws vary substantially from one country to another with little harmonization of key issues such as authorship and ownership. In a multinational context, the differences impact ownership and control of the work in unexpected ways. Thus, for a multinational corporation with employees and contractors located across more than one country, determining who may claim authorship and who owns rights to the work becomes exponentially more complex.

You are not authenticated to view the full text of this chapter or article.

Elgaronline requires a subscription or purchase to access the full text of books or journals. Please login through your library system or with your personal username and password on the homepage.

Non-subscribers can freely search the site, view abstracts/ extracts and download selected front matter and introductory chapters for personal use.

Your library may not have purchased all subject areas. If you are authenticated and think you should have access to this title, please contact your librarian.

Further information