Copyright and Employment Contracts

The author of a work is, in principle, the primary owner of copyright over their work.[1] However, an employer can own rights over the works of its employee if 3 conditions are met:[2]

  1. The existence of an employment contract
  2. The creation of a work in the course of employment
  3. The absence of a contract stipulating otherwise

1. The Existence of an Employment Contract

The Copyright Act requires there to be a “contract of service or apprenticeship” for the employer to retain rights over works produced by employees – i.e. there must a contract where an employee (or apprentice) offers their services to an employer. There must also be a relationship of subordination where the employee (or apprentice) follows the direction of the employer in the course of their work.

Independent entrepreneurs or who are in business relationships tend to remain owners of copyright of their works because they usually are not in a relationship of subordination. For example, a Montreal court found affirmed a screenwriter and film director’s ownership of copyright, in part because no relationship of subordination existed that would justify transferring copyright ownership of the film to the producer who contracted her services.[3]

2. Work Made in the Course of Employment

The work must be made in the course of employment for the employer to own copyright over it.[4] This means that the employee continues to own the copyright over their work if:

  • It is made outside working hours. For example, an artist will retain ownership of copyright of a painting if it is painted in the artists’ spare time.
  •  If there is no direct link to the business of the enterprise for which the artist works. For example, if a painter works in a doctor’s office, the employer will not own any paintings the artist creates.

If the work is created only partially in the course of employment, the employer and employee (or apprentice) will share copyright over the work.[5] For example, a computer program created partially during working hours, partially during the author’s free time.

3. Absence of a contract stipulating otherwise

Lastly, the employer will be unable to claim ownership of copyright if the employment contract stipulates that the employee retains ownership of their work.

 

References

[1] Article 13(1) of the Copyright Act (RSC 1985, ch. C-42) states that, except where the Copyright Act specifies otherwise, the author of a work s the first owner of its copyright.

[2]Article 13(3) of the Copyright Act (RSC 1985, ch. C-42) states: “Where the author of a work was in the employment of some other person under a contract of service or apprenticeship and the work was made in the course of his employment by that person, the person by whom the author was employed shall, in the absence of any agreement to the contrary, be the first owner of the copyright”

[3] Jean-Claude Chehade Inc. v. Films Rachels Inc (Syndic), [1995] A.Q. No. 1550, paras. 166-67.

[4] Schauenburg Industries Ltd. v. Borowski, [1979] 25 OR (2d) 737 (HC).

[5] Aliments Krisy Kernels Inc. v. Morasse, J.E 93-736 (C.S)