3.4.4.1 Copyrights under an employment relationship

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faq

Employees in employment relationships often produce a creative work as part of their work. In many cases, employers even appoint specific employees with the intention of having them produce creative works (e.g. a graphic designer who should design advertising brochures for a company).

The author is the natural person who created the work (Art. 6 CopA), i.e. the employee in this case. But employers also want to profit from creative works, particularly if the employee was appointed specifically for this purpose. Therefore, employers often require their employees to assign their copyrights to the company. Authors can assign their copyrights to third parties, in this case the employer. However, the moral right of the author is not included.

If employees assign their rights, they no longer own the sole copyrights in the work created during their employment relationship. Consequently, they are no longer free to use the work as they wish without obtaining the employer’s prior consent. This also applies to third parties who want to use the work – such parties not only need the appropriate consent of the employee if they wish to use the work but also that of the employer.

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Agreement between employee and employer

Special provisions can be included in the employment contract for employees who work in a field in which they often produce creative works (e.g. media, legal sector, art industry). Unfortunately, such contracts are not always clear or might not include any written provisions about whether the copyrights should be assigned and/or to what extent they should be assigned. For example, employees can also grant their employers only a licence or restricted rights.

If the employment contract contains unclear provisions or no provisions at all, the matter is decided by the purpose of the employment contract. The employment contract tacitly includes the assignment of the copyrights to the employer if the employee’s remit pursuant to the employment contract is specifically to create one or more works for the employer. In this case, the rights that are needed to achieve the contract’s purpose are assigned.

The Copyright Act only makes explicit provision for the assignment of the rights to a work to the employer in a single case, i.e. in the event that employees create a computer program under an employment contract in the course of their work or fulfilling contractual obligations (Art. 17 CopA).

Copyright and employers’ authority to give directives

Employees are not always the authors if they create a work on the instructions of the employer. If an employer exercises its authority to give directives (Art. 321 d para. 1 SCO) by giving employees specific instructions to create a work, the employees normally do not become the authors of the work. A work is only a creation if an individual gives a creative input . This is not the case if an employee simply executes instructions. The employees are only executing persons. (For example, a pastry chef gives their employee a design for a wedding cake, which the employee should then bake).

However, if the employees produce their own creative works, the employer cannot immediately request the alteration of the work on the basis of its contractual authority to give directives. The right to decide whether, when and how the work may be altered (Art. 11 para. 1 (a) CopA) is the moral right of the original author. However, if the employer requests only reasonable and marginal alterations (which must be determined ad hoc for each individual case), the employee must agree, unless the request for alterations infringes the employee’s personality right (Barrelet/Egloff, Urheberrecht, 3rd edition, 2008, Art. 11 N. 7 with reference to the employer’s obligation to protect its employees’ personality rights, Art. 328 SCO).

FAQ

3.4.4.1-2 A law firm appoints a lawyer whose task is to regularly publish articles on current case law on its website. Does the firm own the (assignable) copyrights in these articles if the employment contract does not contain any specific provisions?

Yes and no. An agreement on the assignment of copyrights does not have to be explicit and be concluded in writing. The purpose for which the employee was appointed is important here – in this case, the lawyer was appointed to write Internet articles; the assignment of the copyrights to the law firm for the use of the articles on the website of this law firm is therefore tacitly agreed in the employment contract. However, the employee retains the other rights of use.

3.4.4.1-3 May a supervisor decide to change the title of an article written by an employee during the course of their work?

Not generally – only the original author (i.e. the employee) has the right to make alterations (the exclusive right to decide whether, when and how the work may be altered) pursuant to Art. 11 para. 1 (a) CopA. It depends whether this is a marginal and reasonable change (e.g. the supervisor corrects the spelling) – but if the supervisor simply changes the title of the article to a title they prefer, this act can be seen as an intrusion into the personality right of the employee, in which case it is not a marginal alteration.