intellectual property and employer copyright
When an employee makes an invention or creative achievement in their spare time, the question arises who legally owns it: the employee or the employer? This is a complex issue within employment law and intellectual property. The law has several rules that determine whether the rights remain with the employee or automatically pass to the employer.
Employer copyright: the general rule
The main rule is that the creator of a work, such as a software program, a text or a design, is in principle the copyright owner. This means that whoever creates something automatically owns the copyright to it. However, in a labor relationship, this is more nuanced.
Under the Copyright Act, copyright in a work belongs to the employer if the employee created the work in the performance of his job. This is known as the "employer copyright. This means that if an employee creates a creative work within the normal course of his work, in principle, the employer is considered the copyright owner. In doing so, it does not matter whether the creation was made in the office or at home, as long as it falls within the job description.
Case law on copyright within employment
A case law example illustrates this situation. An account manager developed software during working hours, which was then distributed through the employer. However, it had never been agreed that software development was part of his job. The court ruled that the copyright had not automatically passed to the employer because it was not within his job duties. This highlights the importance of a clear job description and agreements on intellectual property in the employment contract.
The importance of an intellectual property clause
An employer can contractually hedge by including an intellectual property clause (IP clause) in the employment contract. This clause obliges the employee to transfer certain intellectual property rights, such as copyrights and patent rights, to the employer. This is especially important in positions where innovation and creativity play an important role, such as software development or product design.
In addition to copyright, patent law can also play a role in intellectual property. A patent right applies to inventions and innovations and may belong to the employer under certain conditions if the work was developed within the work environment.
Conclusion
Employees who perform creative or innovative work would do well to check their employment contract for an IP clause. In addition, it is important to clarify whether a particular creation falls within the job description. For employers, it is advisable to make clear agreements and record them contractually to avoid conflicts over property rights.
This blog was written by Mr. Stijn Blom, employment lawyer at Arbeidsadvocaat.nl B.V. Stijn has extensive experience in employment law and assists entrepreneurs daily with a wide range of employment-related matters. From dismissal cases to drafting watertight contracts and policies – with his practical and personal approach, he helps employers and employees move forward. Want to know more?Visit Stijn's page.
Arbeidsadvocaat.nl is happy to think with you if you have questions about copyright law. Please feel free to contact us .
April 2025
