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).