Nowadays, intellectual property rights constitute very important assets of the companies. Therefore, in order to avoid conflicts and uncertainty, Greek legislation offers specific provisions concerning the ownership of inventions, designs and the copyright on a work created in the course of an employment relationship. These provisions could be of interest of any company operating in Greece and governed by Greek Law.
Aim of this article is to present the main aspects of copyright ownership within the scope of an employment agreement. The main legislative document is the Greek Copyright Law, Law no 2121/1993 “For the Protection of Copyright and Neighboring rights”, as it is enforced today.
Greek Copyright Law provides that the initial owner of an intellectual property right is the author, who is always the individual person/persons who created the work. In addition, it is provided that the author enjoys, in principle, both the economic right (the right to exploit economically the work) and the moral right (the right to protect his personal bond with his work) on the work. The economic right may be the object of economic exploitation, while the moral right, being not transferable, is only passed to the heirs after author’s death. The moral right is independent from the economic right, thus, remains to the author even after the transfer of the economic right.
The term “work” shall designate any original intellectual literary, artistic or scientific creation, expressed in any form, notably written or oral texts, musical compositions with or without words, theatrical works accompanied or unaccompanied by music, choreographies and pantomimes, audiovisual works, works of fine art, including drawings, works of painting and sculpture, engravings and lithographs, works of architecture and photographs, works of applied art, illustrations, maps and three-dimensional works relative to geography, topography, architecture or science, as well as translations, adaptations, arrangements and other alterations of works or of expressions of folklore, collections of works or collections of expressions of folklore or of simple facts and data, such as encyclopedias and anthologies, as well as databases, computer programs and their preparatory design material.
Ownership of copyright in employment relationships
Article 8 of Greek Copyright Law explicitly provides the following: “In cases where a work is created by an employee in the execution of his employment agreement, the author of the work (employee) is the initial holder of the economic and moral rights in the work. Unless otherwise agreed, the economic powers accruing from copyright, which are necessary for the fulfillment of the scope of the employment agreement, are automatically transferred to the employer”.
From the above provision, it is clear that the employee, who is the author of the work, remains the initial holder of the economic and moral rights in the work. However, the economic rights, and specifically the ones that are necessary for the fulfillment of the scope of the employment agreement, are ex lege transferred automatically to the employer, unless otherwise agreed, under the provision that the work has been created in the course of employment and in execution of the employment agreement.
According to the above, the first to be examined is whether the work has been created in execution of the employment agreement. The use of employer’s equipment and know-how and the creation of the work during the working time are not sufficient indications that the work has been created within the scope of the employment agreement. On the contrary, the fact that the work has been created by the employee under the duties that has undertaken with the employment agreement is the most significant indication.
It is also important to mention that not all the economic powers of the economic rights are transferred ex lege to the employer, but only the ones that are necessary for the fulfillment of the scope of the employment agreement, meaning, in principle, the ones that are relevant to the economic activity of the employer and for the time necessary for this fulfillment. In order for the employer to obtain extended economic powers over the work, the employee should in written transfer these additional powers to the employer. This written agreement can constitute part of the employment agreement or a separate agreement. It is also possible, the written agreement not to provide extended powers, but to waive or limit the ex lege automatic transfer of economic rights to the employer. For instance, the agreement can stipulate a specific time during which the employer can exploit the economic powers vested in him, or it can stipulate that not all the powers relevant to the economic activity of the employer will be transferred to the employer (e.g. between a journalist and the employer, publishing company, which issues a newspaper, a magazine and owns a website, can be in written agreed that the works written by the journalist will only be published in the newspaper and magazine).
Consequently, unless otherwise provided in the employment agreement, the employee shall retain the exploitation rights which are not necessary for the fulfillment of his contractual obligations towards the employer as well as his moral rights which are inalienable under Greek Law.
In case that the employer demands an additional work to be created by the employee out of the scope of his/her employment agreement, the economic powers over this work are not ex lege vested in the employer, but a specific written agreement needs to be concluded between the parties.
As it has been already clarified, the moral rights on a work remain to the employee. However, in order the economic activity of the employer to be exercised effectively, some restrictions to the exercise of the moral rights of the employee should be deemed acceptable. For example, the right of integrity of the work (namely the right of the author (employee) to object to any distortion, use, alteration of the work or any other derogatory treatment), the right of paternity or, most importantly, the publication right (namely the right to decide on the time, place and manner in which the work shall be made accessible to the public) should, at some degree and under some circumstances, be restricted in order not to prevent the actual and efficient economic exploitation by the employer of the copyrighted work transferred ex lege or under an agreement to him.
Employees in the public sector
There are some categories of employees for whom special legal provisions are applied. For instance, concerning employees in the public sector, article 8 par. b of the Greek Copyright Law provides that “The economic right on works created by employees under any work relation of the public sector or a legal entity of public law in execution of their duties is ipso jure transferred to the employer, unless otherwise agreed”. The particularity of the employees in the public sector is that the economic rights are transferred ex lege in whole to the employer (public sector, legal entity of public law). Not only the economic powers which are necessary for the fulfillment of the scope of the employment agreement are transferred as is the case for employers in the private sector. The only prerequisites for such transfer is the existence of an employment relationship and the creation of the work in execution of employees’ duties. Of course, there might be a different arrangement between the parties. It is interesting to mention that, according to legal theory, the general scientific and research work of academics which results to the creation of copyrighted works (e.g. writing of books) should be excepted from the rule of the ipso jure transfer of these copyrighted works to the public sector (university), due to the fact that academic freedom is protected under the Greek Constitution.
Computer programs created by employees
In compliance with the EU Directive 91/250/EEC on the Legal Protection of Computer Programs, there is a special provision about computer programs that have been created by employees. According to this provision “The economic right in a computer program created by an employee in the execution of the employment contract or following instructions given by his employer, shall be transferred ipso jure to the employer, unless otherwise provided by contract” (article 40 of Greek Copyright Law). This provision offers broader protection to the employer, firstly, because the economic right is in its whole transferred to the employer and, secondly, because it is sufficient that the employer gives instructions for the creation of the program to employee even if such creation is not the object of the employment relationship between the employee and the employer. Please note that databases and multimedia do not fall into the scope of this provision and the general rule of article 8 of Copyright Law applies.
Remuneration of employees
Normally, the fee payable to the author by the other contracting party to legal agreements relating to the transfer of all or part of the economic right, the granting of the exploitation or for the exploitation license shall be obligatorily determined as a percentage, agreed freely between the parties. By way of exception, the fee may be agreed as a lump sum.
However, this is not the case for the employees- authors. It is generally accepted that the employees, who create the copyrighted work in the course of an employment relationship, are remunerated only with their salary and they do not receive by the employer a special fee for the creation of the copyrighted work, unless otherwise agreed.
Authors with no employment relationship
It is very common in practice, companies or individuals to assign the creation of a work to a person with whom they are not connected with an employment relationship. These persons would most likely operate under service agreements as freelancers/ independent contractors or under management or works contracts.
Due to the nature of the above relationships, the provisions for the ex lege ipso jure ownership of the economic rights on the copyrighted work by the employer will not apply. On the contrary, the author remains the holder of the economic right and the moral right in the copyrighted work. Therefore, a specific written agreement between the parties, the assigner and the freelancer/ contractor, should be concluded, transferring the economic rights or granting exploitation rights to the assigner. In absence of such an agreement, use of the copyrighted work constitutes an infringement of the intellectual property right of the author, is illegal and may be prohibited.
The transfer of the economic right, the exploitation contracts or the contracts licensing the exploitation of that right may restrict the rights they confer, their scope and duration, the geographical application and the extent or the means of exploitation. According to the Law, if the above elements are not specified in the concluded agreement of the parties, the duration of the transfer or of the exploitation shall be deemed to be limited to five years, provided conventional mores do not indicate otherwise, the legal acts shall be deemed to apply to the country in which they were concluded and to the extent and the means that are necessary for the fulfillment of the purpose of the contract or license.
Taken all the above into consideration, it can be concluded that part of the economic rights of copyrighted works that are created in workplace in the scope of employment agreements are, in principle, transferred ipso jure to the employer, unless otherwise agreed. However, in order to avoid uncertainly, to extend, limit, waive or, in general, regulate the transferred rights, it is always advisable that specific written agreements are concluded between the parties or specific provisions are included in the employment agreements. In case that there is no employment relationship between the parties, there is no ipso jure transfer of economic rights and, as a result, detailed agreements between the parties should be concluded.