The legal regime of works made for hire.

Article 14. Copyright in a work created in the performance of employment duties or of an employer's assignment (a work made for hire) belongs to the author of that work.

The exclusive rights to use a work made for hire belong to the person with whom the author is in an employment relationship (the employer), unless the contract between that person and the author provides otherwise.

The amount of the author's remuneration for each form of use of a work made for hire and the procedure for its payment are established by a contract between the author and the employer.

The employer has the right, in any use of a work made for hire, to indicate its own name or to require such indication.

The provisions of this Article do not extend to the creation, in the performance of employment duties or of an employer's assignment, of encyclopaedias, encyclopaedic dictionaries, periodical and continuing collections of scholarly works, newspapers, magazines and other periodicals (paragraph 2 of Article 11 of this Law).

The article is devoted to determining the legal regime of works made for hire. The authors describe in detail which
works are considered works made for hire, which rights in them arise for the author and which for the employer under the
current provisions of Part Four of the Civil Code of the Russian Federation
A large number of works of science, literature and art are created by their authors during the course of their
work, i.e. such works are works made for hire. A non-exhaustive list of such
works is given in paragraph 1 of Article 1259 of the Civil Code of the Russian Federation (hereinafter, the Civil Code). In particular, that
list does not include works of science created by employees of scientific,
research and educational organisations, namely: materials of scientific, research, technological and experimental design work (various reports, memoranda,
surveys, scientific and scientific-methodological articles and papers, monographs); teaching and methodological materials (lecture texts, textbooks, teaching aids and methodological manuals and
complexes, test and examination problems and tests, audiovisual teaching materials) and
so on.
After Part Four of the Civil Code came into force, the legal regime of works made for hire
changed somewhat. In this connection it is important to determine which works are in fact considered
works made for hire, which rights in them arise for the author and which for the employer under the
current provisions of the legislation.
Under paragraph 1 of Article 1295 of the Civil Code, a work made for hire is a work created by an employee within
the limits of the employment duties established for that employee. On this basis, for a work to be one made for hire,
the following conditions must be present: 1) the existence of an employment relationship between the author and the
employer; 2) the creation of the work within the limits of the employment
duties established for the author.
Employment relations are based on an agreement between the employee and the employer as to the employee's personal
performance, for payment, of a labour function (work in a particular speciality,
qualification or position), and also on the employee's compliance with the internal
labour regulations (Article 15 of the Labour Code of the Russian Federation. Hereinafter, the Labour Code).
At the same time the employer is obliged to provide the working conditions laid down by labour
legislation, the collective agreement, accords and the employment contract (Article 15
of the Labour Code).
Employment relations arise on the basis of an employment contract concluded between the employee and the
employer (part 1 of Article 16 of the Labour Code).
In certain cases established by labour legislation and other normative
legal acts containing labour-law provisions, or by the charter (regulations) of an organisation,
employment relations arise on the basis of an employment contract (part 2 of Article 16 of the Labour Code).
For example, as a result of election to a position, election by competition to fill the relevant
position, appointment to a position or confirmation in a position (part 2 of Article 16 of the Labour Code).
An employment contract is an agreement between the employer and the employee and is concluded in
written form (Articles 56 and 67 of the Labour Code). The content of an employment contract must comply with
the requirements established by Article 57 of the Labour Code.
In particular, the employment contract must state the title of the position, speciality or
profession, with an indication of qualification in accordance with the staffing schedule, or the specific
labour function. An employment contract not drawn up in written form is deemed
concluded if the employee has begun work with the knowledge of, or on the instruction of, the employer or the employer's
representative. After the employment contract is concluded, an order of employment is issued and an entry is made
in the employment record book. Thus, the employment contract is the principal document
confirming the existence of an employment relationship. And for employees whose work is inevitably
connected with intellectual labour and the creation of creative works, it is simply an indispensable
document for subsequently giving a work created by the employee the status of
a work made for hire.
Defects in the drawing up of an employment contract may result in a court finding such a contract
to be not an employment contract but a civil-law one (for example, a contract for research and development work or a contract
for the provision of services). A work created in the performance of such a contract cannot be
recognised as a work made for hire in order that the work be considered so in accordance with the current
legislation.
The question whether a work has been created within the limits of the employment duties established for the employee
or outside those limits is decided on the basis of job descriptions, in which
the employee's duty to create works is set out, or of specific
assignments given by the employer. In higher educational and research organisations these
duties may be set out in research and teaching work plans, and also in
teachers' individual plans.
Under paragraph 12 of the ruling of the Plenum of the Supreme Court of the USSR of 18 April 1986, No. 8,
«…Work should be regarded as planned work where its performance was provided for by the individual plan approved for
the author, and also published work credited, with the author's consent, towards the
fulfilment of his or her work plan. The mere fact that the author used, in creating the work,
materials of the organisation with which he or she is in an employment relationship cannot serve as
a ground for concluding that the work performed by the author is planned work». In this connection it is
necessary to include in the research and teaching work plans of the said organisations
the creation of the corresponding scientific, teaching and methodological works, indicating
the specific employees whose duties include creating them, and also to include these in
the individual plans of employees, in particular teachers and research staff.
Works created by employees in the performance of the said plans are works made for hire, since
these plans may be regarded as a form of employer's assignment to the specific employee
(employees).
Authors of works made for hire hold the moral copyright rights, namely:
- the right of authorship and the author's right to a name (Article 1265 of the Civil Code); - the right to the integrity of
the work and to protection of the work against distortion (Article 1266 of the Civil Code); - the right to disclose
the work (Article 1268 of the Civil Code).
The right of withdrawal does not belong to authors of works made for hire where they have already given
their consent to the disclosure of their work (Article 1269 of the Civil Code).
The exclusive right to a work made for hire belongs to the employer (paragraph 2 of Article 1295 of the Civil Code), and
the employer may use the work by any means not contrary to law, including
the means provided for in paragraph 2 of Article 1270 of the Civil Code, and may also dispose of its right. However, this
provision is of a dispositive nature, and the contract between the employer and the employee may
provide otherwise.
In particular, provision may be made for the author to be able to use the work made for hire
by means not dictated by the purpose of the employer's assignment.
The law establishes the employer's obligation to use the work made for hire or otherwise
to dispose of its exclusive right. Within three years of the day
on which the work was placed at its disposal, the employer must begin using
the work, or transfer the exclusive right in it to another person, or notify the author that
the work is to be kept secret. The employer's failure to fulfil this obligation means that
the exclusive right to the work made for hire passes to the author (second subparagraph of paragraph 2 of Article 1295 of the Civil Code).
The exercise of this right by the employee involves certain formalities; in particular,
the employer needs somehow to record the date on which the work was placed at its
disposal, for example by the date of approval of the work at a departmental meeting, by the date the work was sent
to press to the editorial and publishing department, or by some other date. In addition, it is necessary
to stipulate the procedure by which the exclusive right to the work made for hire will pass
from the employer to the employee.
For example, the employer may be placed under a duty to notify the employee of the fact of use
of the work, or of any other decision it has taken regarding the work, during the last two months
of the three-year period referred to above, or of the passing to the employee of the exclusive
rights to the work made for hire.
It is precisely this condition that needs to be stipulated, since the employment relationship between the author of the work made for hire and
the employer may be terminated before the expiry of the above-mentioned
three-year period at the initiative of either the employee or the employer.
If, on the basis of paragraph 2 of Article 1295 of the Civil Code, the exclusive right to the work made for hire
belongs to the author, this entails the following. First, the author has the right to use
the work made for hire by means not dictated by the purpose of the employer's assignment, and also, even
by means dictated by the purpose of the assignment, beyond the limits arising from the employer's assignment, without
restriction (paragraph 3 of Article 1295 of the Civil Code).
Secondly, the employer has the right to use such a work by means dictated by the purpose
of the employer's assignment and within the limits arising from the assignment, and also to disclose this work (paragraph
3 of Article 1295 of the Civil Code). This provision is likewise of a dispositive nature and may be varied by
contract between the employee and the employer.
Authors of works made for hire have the right to receive remuneration from the employer in the
event that the work is used, that the exclusive right to the work is transferred to another person,
or that a decision is taken to keep the work secret. The amount of the remuneration and the procedure for its payment
are determined by a contract between the employer and the employee (part 3 of paragraph 2 of Article 1295 of the Civil Code). The said
author's remuneration does not form a constituent part of the employee's wages, but
is a separate type of remuneration, notwithstanding that the creation of the work made for hire
forms part of the employee's job duties.
The foregoing convincingly demonstrates the need to settle, as between the employer and
the employee, all the questions discussed above. This may be done within the framework of the employment contract,
of a separate contract between the employer and the author, or of «Regulations on works made for hire» as
an annex
to the collective agreement.
It must also be borne in mind that in the course of carrying out scientific
and research work the employee acquires information of an in-house character (experience,
know-how, experimental data) which he or she may take away on leaving and
use at a new employer's. Such information may subsequently serve as a basis
for the creation of works of science or of objects of technical creativity (inventions, utility
models).
The employer therefore needs to take measures to protect such information and to make its
use by the employee after leaving impossible.
Current civil and labour legislation affords the employer this possibility
by establishing for such information the regime of a «trade secret (know-how)» (Articles
1465–1472 of the Civil Code and Federal Law of 29 July 2004 No. 980-FZ «On Commercial Secrecy»).
Under paragraph 2 of Article 1470 of the Civil Code, an employee who, in connection with the performance of employment duties,
has learned information relating to trade secrets is obliged to preserve
the confidentiality of the information obtained until the exclusive right in it ceases to have effect.
Article 243 of the Labour Code and Article 1472 of the Civil Code provide for the employee's full material liability
for the disclosure of such information and for the civil liability of a person who has unlawfully obtained,
disclosed or used this information.
On the basis of the foregoing it may be concluded that many questions concerning the protection and enforcement of the rights
of authors and employers in respect of works made for hire are not regulated by current
legislation and require additional agreements between them, as well as
additional measures to protect intellectual property on the part of the employer.