Stray Vyrje

20.05.11

Who owns the copyright?

Magnus Stray Vyrje (msv@svco.no)

According to Norwegian law, the person creating the literary, scientific or artistic work is the one who acquires the copyright, cf section 1 of the Copyright Act: "Any person who creates a literary, scientific or artistic work shall have the copyright therein." Apart from a more specific provision for computer programs, the law does not stipulate any special rules that apply to work created as part of an employment relationship.

It is true that over the years one can see reminiscences of the view that copyrights are originally ascribed to the employer, the Anglo-Saxon model. However, this view has been rejected in our current Copyright Act, which stipulates that there must be a formal assignation if the employer is to achieve rights, the Continental model.

Naturally, the starting point that copyrights belong to the employee may conflict with the employer's management prerogative and right to govern the results of the employee's work. Industry has therefore made great efforts to amend the Copyright Act so that copyright is automatically assigned to, or is originally ascribed to, the employer.

However, the need for such a change in the law has not been overwhelming. Over the past 75 years, it has been assumed that employers, tacitly and irrespective of the lack of statutory provisions or agreements, acquire a limited and devolved right of disposition over the literary, scientific or artistic work created by their employees. Please note; the state of law is different between employers and independent contractors.

The legal situation is thus that the employer, despite the lack of agreements and statutory provisions, has a right of disposition over the creations of its employees. This is a result of an implied assignation from the individual employee to the employer. This may be called tacit agreements or non-statutory presumptions. This starting point is not contested in Norwegian law.

However, the assignation of rights requires the employee in question to have been employed to create the literary, scientific or artistic work and that the work has been created while the employee was carrying out his/her/his work for the company. If the literary, scientific or artistic work has been created outside the employee's work for the company or during a period of service with the company but by an employee who was employed for other purposes, parts of the copyright are not assigned to the employer unless this has been agreed upon separately. Please note; the state of law is different for the literary, scientific or artistic work without originality.

The starting point is also that the employer must have acquired all the necessary and reasonable rights for the employment contract to achieve its objective, but not any more than these. The employee retains the rights that are not assigned. However, the employee cannot use these to compete with hers/his employer, cf the rules regarding the duty of loyalty in an employment relationship.

As long as the rights are assigned together with the employer or a department of the employer, the employees cannot protest against further assignation either, cf subsection two of section 39b: "Nor may any further assignment of copyright be made without consent, unless the copyright belongs to a business or to a part thereof and is assigned together therewith."

In an amendment to the Act in 1992, the Norwegian parliament passed a special regulation applicable to computer programs created during an employment relationship. This provision has now been included in section 39g of the Copyright Act, which states the following: "Copyright in a computer program which is created by an employee in the execution of duties for which he is employed or in accordance with the instructions of his employer shall, subject to the limitation ensuing from Section 3, devolve on the employer, unless otherwise agreed."

This special regulation was motivated by the EU Programme Directive 91/250/EU and applies only to computer programs. The question of the assignment of rights to other types of literary, scientific or artistic work - database structures and visual user interfaces, etc - must therefore be assessed according to the aforementioned principles.

Neither the EU Directive nor the provision stated in section 39g aim for any assignment of the moral rights of the author of the work. These are expressed in Norway in section 3 of the Copyright Act (droit moral), and give the author an unassignable sole right to be stated as the author and protection against the prejudicial use of or amendments to the work. This is why section 39g makes reference to section 3 of the Copyright Act.

In practice, however, there is not much room for moral rights as regards the type of creative work we are facing here – computer programs. Whether the rights belong to the employee or to the employer, the copyright holder primarily has a financial interest in the work. The moral interests, which may play a significant role as regards other categories of work, are of a subordinate nature. It is true that the author's (employee's) moral rights do also apply to creative work of the type we are dealing with here, but they can to a certain extent be waived.

It will, in fact, often be natural to regard the employee as having waived his/her rights to be named as the author in the case of creative work such as computer programs and databases. Nor can the utilisation of, or the changes that are relevant for, the database structure, interface and programming be assumed to be incompatible with section 3 of the Copyright Act. The employees' possible moral rights cannot therefore limit the employers utilisation of such works.

The special regulation stated in section 39 of the Copyright Act grants the employer the sole right of disposition over the computer program as stated in section 2, including the right to change, adapt, further develop and market the work created. These rights are not - as for other categories of literary, scientific or artistic work - limited to what is necessary and reasonable for the employment contract to achieve its objective or for the employer's operations.  However, this special regulation only applies in those cases where the program has been created as part of the employee's duties in his/her employment relationship or in accordance with the employer's instructions.

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