Intellectual Property and Personality Rights
Work made for hire
Work subject to copyright which is entirely created by an employee during the scope of employment or some limited works for which the involved parties agree in writing to Work for Hire designation is called work for hire.
According to copyright jurisdiction, if a work is made for hire, the employer (a cooperate, a legal entity or an individual) and not the employee is considered the legal author (Maskus, 2010). A work is considered a work for hire if it has been prepared by the employee during his or her employment period if it has been considered to elaborate a collective work, as an answer, a translation or as a part of audiovisual work and the responsible parties willingly sign an agreement in a written document that the work shall be considered a work made for hire.
Hellyer (2012) asserts that if an independent contractor is the creator of the work, the work may be considered for hire if it is a contribution to another collective work, a translation, a part of a picture or other audiovisual work, a compilation, an instruction text or an atlas. The work must be specially ordered and there must be a written agreement between the parties specifying that the work is made for hire by use of the phrase work for hire.
Intellectual property shop rights
A shop right is an unwritten license which permits the employer to use a patented invention, created by an employee who did his or her invention during his or her employment scope, made use of the company’s equipment and having all their expenses catered for by the employer (Maskus, 2010). The employer is therefore free from patent infringement and can make attempts of improving and making income from the patent in the firm’s business routine without royal payment. A shop right cannot be transferred from one party to another unless the business is sold as a whole.
Struggle over ownership of a software application
Suppose an insurance firm employs a software writer to create application software which can be installed and used by their policy holders to access the company’s services through their mobile phones. The firm gives him or her well furnished office for a work place and caters for all the expenses incurred. He or she, however, spends the morning hours working on the creation of the application software and the afternoon hours creating a program that would allow a company’s manager have access to the stakeholders account in his phone. At the end of the stipulated time line, he or she is done creating both application software and him or her licenses the company manager’s application software at $100,000 (Yang, 2008).
The insurance firm realizes it and sues him or her in a court of law and also claims ownership of the software. In this case the employer does not own the rights to the second application software since the employee had only been instructed to create application software for the policy holders and not for the company’s manager. The insurance firm may only sue the employee for wrongfully using the employer’s utilities. However, the full ownership of the manager’s application software belongs to the employee. The insurance firm will only own the rights to the policy holders’ application software.
Myth versus reality
It is a myth that an employee owns the rights to an invention they have made in a company during their scope of employment. The rights are fully owned by the employer if the employee did the invention during the scope of employment and was using the employer’s resources to work on the invention and if the employer catered for all the expenses incurred by the employee during this process.
Hellyer, Paul, (2012)”Who Owns This Article? Applying Copyright’s Work-Made-for-Hire Doctrine to Librarians’ Scholarship”
Yang, C. (2008). The effects of strengthening intellectual property rights in NIEs. Contemporary Economic Policy, 26(2),
Maskus, K.E. (2010). Intellectual property rights in the global economy. Washington, DC: Institute for International Economics.
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