If many people think that the copyright in works created by a worker within the framework of his employment contract automatically reverts to the employer, this is a misunderstanding.
The Code of Economic Law provides for the “possibility” of assigning to the employer the economic rights to the works which are created by a worker within the framework of the employment contract. This transfer is therefore not automatic, except with regard to the economic rights relating to the software.
The Code of Economic Law provides for the “possibility” of assigning to the employer the economic rights to the works which are created by a worker within the framework of the employment contract. This transfer is therefore not automatic, except with regard to the economic rights relating to the software. The question then arises as to what an employer must do to obtain the copyright in the work of his worker or whether separate remuneration must be paid for this purpose. A question that is all the more topical in light of the entry into force of the law of 19 June 2022 transposing directive 2019/790 on copyright and related rights in the digital single market. To do this, the employer must first conclude in writing an agreement for the transfer of these rights. If copyright provides that for each mode of exploitation, the author’s remuneration must be expressly determined, this does not apply in principle when an author creates works in execution of an employment contract. Consequently, it is possible to agree that the remuneration provided for in the employment contract also includes that for the assignment and exploitation of copyright. However, it is provided, following the recent legislative change, that the remuneration must be “appropriate and proportional” in relation to the exploitation of the rights. Until July 31, 2022, it was mandatory to provide separate remuneration for a work whose forms of exploitation were still unknown. This obligation was abolished with effect from August 1, 2022. Today, the author can claim an appropriate and fair additional remuneration from the person to whom the rights have been transferred when the remuneration initially agreed turns out to be disproportionately low in relation to the receipts subsequently drawn from the exploitation of the work. Indeed, it is often difficult to estimate in advance what constitutes an appropriate remuneration. The economic value of royalties may turn out to be much higher than initially estimated. For this reason, the legislator has introduced a mechanism to reassess a posteriori the appropriateness of the remuneration initially agreed and, if necessary, to adapt it. In order for the worker to be able to assess this, the employer must provide him with updated information on the exploitation of his works each year. The new copyright applies to all contracts concluded from June 7, 2021 but only with regard to legal or operating acts carried out after the entry into force of the law, August 1, 2022. By Therefore, although an employer may include a standard clause in the employment contract providing for remuneration which includes appropriate and proportionate compensation, the employer should be aware that a worker could potentially claim additional remuneration if the worker’s earnings exploitation of the work turn out to be surprisingly high. An article by Laurent De Surgeloose Associate Lawyer at DLA Pier and Alexis Fierens Associate Lawyer at DLA Piper