The question of defining the copyright for a work essay is very relevant, since many work
products, in particular in the field of IT technologies, are created as service works.
In this situation there are two subjects of legal relations that have legal grounds to be
authors – the employee and the employer, as well as different approaches in the legislation of
Ukraine to regulate this issue.
In addition, the recent entry into force of the provisions of the Association Agreement
between Ukraine and the EU, which introduces some innovations in the legal regulation of
copyright property rights to a work, emphasizes the need for an analysis of the above issues.
So, let's try to sort it out.
First of all, it is necessary to clarify the notion of service work and the legal grounds for
the emergence of intellectual property rights for a work.
The Law of Ukraine "On Copyright and Related Rights" dated 23.12.1993 discloses the
meaning of the term "service". In particular, an official work is created by an employee (author)
during performance of his official duties, which corresponds to an official job or an employment
contract between an employee and an employer.
From this definition we can see that the basis for the creation of a service must be an
employment contract between the employer and the employee; the presence of the relevant official
duties and the corresponding official task for the creation of a service as an object of intellectual
property.
The aforementioned law also gives a clear explanation of the terms "official duties" and
"official task". Therefore, the employee's duties are those duties that must be specified in the
employment contract and / or job descriptions, and the official tasks are certain instructions from
the employer to the employee for the performance of the task.
The situation usually looks different in practical way. An employment contract is
concluded often in oral form and the worker is actually allowed to work without clearly defined
service tasks and official duties. Therefore, the creation of any work that is the subject of
intellectual property rights, as a result of such an employee's work, will also be considered as the
creation of a service. However, this approach, as noted above, can generate many negative
consequences.
That’s why, our recommendation to the employer, is to be responsive to all the legal
nuances of the registration of labor relations with the employee and the definition of the official
duties and tasks in the contract.
The next question to consider is the ownership of intellectual property rights to a work
product: only to the employee, only to the employer, or to two entities at the same time?
Let's start with a special law regulating this relationship, namely the Law of Ukraine "On
Copyright and Related Rights." According to this Law, the exclusive property rights to a work are
owned by the employer, unless another approach is established by the agreements between the
employer and the employee.
However, the Civil Code of Ukraine in Part 2 of Art. 429 determines that proprietary
intellectual property rights to a work are owned by the employee who created this work and the
employer jointly.
So, we have two opposing rules. In order to resolve this collision of legislative acts, the
Plenum of the Supreme Court of Ukraine in paragraph 24 of the Resolution "On the Application by
the Courts of Legislation in the Case of the Protection of Copyright and Related Rights" of June 4,
2010, paragraph 24, clarified this matter, namely : An employee and employer have common rights
to use a service and obtain a certificate of registration of copyright to it.
According to this, the Supreme Court of Ukraine explained that the employee and the
employer have common copyright property rights to the work and applied the norm of the Civil
Code of Ukraine, which is newer in comparison with the norm of the Law «On Copyright and
Related Rights».
In addition, 01.09.2017, the Association Agreement with the European Union came into
force on September 16, 2014. This Agreement in Part 4 of Art. Section 181, section 9, contains
provisions on the ownership of property rights, namely: "If a computer program is created by a
hired employee in the performance of his employment duties or in accordance with the instructions
of the employer, then the employer shall have all the exclusive property rights to the computer
generated program, unless otherwise provided by the contract. ".
The Constitution of Ukraine in Article 9 stipulates that international treaties, the consent to
which the Verkhovna Rada of Ukraine has obligated, is part of the national legislation of Ukraine.
And therefore, since the Association Agreement between Ukraine and the European Union
establishes rules other than those contained in the Ukrainian legislation on copyright and related
rights, the rules of the above-mentioned Agreement, namely, the exclusive property rights to the
work, belong to the employer.
In conclusion, it is unclear what kind of legislation on the regulation of the ownership of
exclusive property rights to official works will be applied by Ukrainian courts, but in our own
opinion the relevant provisions of the Association Agreement between Ukraine and the European
Union have the highest legal force.]]>
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