Employees and copyright

by Findlaw Team

Did you ever wonder who owns the copyright of anything you write, compose, or create at work? If it’s part of your job, then it’s most likely to be your employer who owns the intellectual property.

 

Copyright Act

Section 21(2) of the Copyright Act 1994 provides that the employer owns the copyright of any literary, dramatic, musical, or artistic work that an employee creates in the course of his or her employment.

This would apply to any documentation, software, data compilations, drawings, music, or writing (among other things) that the employee creates while at work (unless the employment agreement states otherwise).

However, copyright in documentation, software, etc that are not made “in the course of” the employee’s employment would generally belong to the employee, in the absence of an agreement to the contrary. A similar position exists for other intellectual property protections applying to software (eg patent protection for software).

Taking ownership

An employer may wish to take ownership of such software, documentation, and data compilations that are created by an employee outside of the course of that person’s employment. For example, the employee might create software outside work hours for his or her own purposes, but using know-how obtained from his or her position or using work resources.

If an employer wishes to take ownership of such works, the matter must be explicitly covered in the employment agreement.

If this policy is to apply to all or most employees of the organisation, it should also be reflected at a general level in the employment policies of the employer.

Even if the organisation is happy to settle for the position at law (ie that the employer owns only documentation, software, etc created during the course of employment), it is useful to set out this position in the employment policies. Clarifying the issue for employees may avoid misunderstandings and subsequent disputes as to intellectual property ownership.

Case example

An example of an intellectual property dispute between an employer and employee is the case of Abbott v Chief Executive, Whitireia Polytechnic ERA Wellington WA151/10, 27 September 2010.

Abbott was a tutor who developed and updated workbooks to help with her teaching. Her employer asserted ownership of the workbooks and required that she provide an electronic copy of all the teaching materials she had developed or face disciplinary action.

The employer's intellectual property policy provided that intellectual property belonged to the employer when it was created by a staff member in the course of their employment or when using the employer's time, resources or facilities. If the staff member was not using polytechnic time, resources or facilities when they created it, the intellectual property would belong to the individual, even if the work was then used for teaching purposes.

Abbott claimed the workbooks were her intellectual property because she developed them in about 500 hours of her own time and used them in her secondary employment as well as providing hard copies for the employer.

The employer insisted that it owned the workbooks, on the basis of its intellectual property policy, the employment agreement, section 21(2) of the Copyright Act 1994, and the fact that Abbott was required to develop programmes to assist with student learning.

The Employment Relations Authority referred to Empress Abalone Ltd v Langdon [2000] 2 ERNZ 53, where the Court of Appeal explored questions such as:

  • What was an employer entitled to expect of an employee?
  • What was the extent of the duty arising from the employment?
  • What was the scope of the contract?
  • And did the intellectual and related property in issue come within it?

The Court in that case concluded that the answer would ultimately depend on the facts of a particular case.

Having regard to the scope of Abbott’s contract, particularly the fact there was no express requirement to create the workbooks, the Authority concluded that the intellectual property belonged to Abbott. Because of this absence of specific terms, she could not be subject to any disciplinary action if she were to cease producing the workbooks.



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