An official work is considered to be any object of copyright (literary works, paintings, logos, graphics, computer programs, etc.) that was created by the creative work of a company employee as part of his job duties (Article 1295). This result of the employee’s creative activity is also an object of intellectual property and the exclusive right to it is regulated by the legislation of the Russian Federation. An employment contract must be concluded with the author of the work, which sets out in writing the tasks, deadlines and reports of the performers on the completion of the official assignment with the signatures of the employees and their employer, as well as other documents.
In the case of occasional execution of tasks to create an object of copyright, a civil law agreement can also be concluded with the performer, in which it is necessary to indicate the tasks, deadlines for completing the work assignment and establish the amount of remuneration, its terms and payment procedure.
Who owns the exclusive right to the official work?
The presence of these documents can be useful when an employee tries to challenge the employer’s exclusive rights or in the event of unlawful use of a work by third parties.
In this case, the employee automatically receives personal (moral) rights to his work - the right of authorship and the right to a name in accordance with Article 1295. That is, copyrights to works of science, literature or art created as part of his job duties (official work) belong to the author, who is not required to register his authorship or the fact of creation of the work. It is enough that the fact of its creation is expressed in an objective form (painting, photo, drawings, articles, etc.). Moral rights always belong to the author, and when using the result of his creative activity, his name must be mentioned, otherwise the author may demand compensation from the employer through the court.
The exclusive right to an official work belongs to the employer, unless otherwise provided by an employment or civil law agreement between the employer and the author (as amended by Federal Law No. 35 of March 12, 2014 - FZ).
In what cases does an employer lose its exclusive right?
It should be noted that property (exclusive) rights are automatically transferred to the employer for 3 years, during which he must use the work at his own discretion or transfer the exclusive right to it to another person. If the employer does not use the work, he is obliged to inform the author about keeping it secret. If these conditions are not met, the exclusive right returns to the author.
The exclusive right may remain with the employer forever if he uses it within 3 years from the date of provision of the official work at his disposal. Otherwise, the employer can have it only under the terms of a simple (non-exclusive) license with payment to the copyright holder of remuneration, the amounts, conditions and procedure of which are specified in the contract or determined by the court in accordance with Article 1295 of the Civil Code of the Russian Federation.
It should be noted that the right to remuneration for professional work cannot be inherited, however, income not received by the author for some reason can be inherited.
In conclusion, I would like to note that in Russian judicial practice, the results of the work of authors may not be recognized as official works if the works are not included in the scope of the employee’s job duties, and in this case the exclusive right to them remains with the author. Even if the author uses the material resources of the employer to create the work (for example, office equipment, materials, premises), this will still not be considered a basis for recognizing it as official work, and in the event of a conflict of interests between them, it is the employer who must prove that the work created by the employee is official work. To prove this, it is necessary to include in the contract an additional agreement to it or a job description, which indicates that the creation of works is within the scope of the employee’s duties (for example, writing articles, creating drawings or logos, etc.). Otherwise, the employer will not receive exclusive rights to use them.
