Exploitation copyrights for a work created by an employee: trends, shortcomings and advantages of legal regulation

Abstract

The problems of legal protection of rights to works created by employees in connection with the performance of an employment contract are related to the definition of their legal regime and subjects of exploitation rights. The relevance of the study of these issues is due to the prevalence of legal conflicts between the author - employee and employer; the lack of an established practice of concluding agreements on the distribution of exploitation rights to a work between these entities; inconsistency of legislative provisions and repeated changes in legal regulation. When conducting a scientific study, the tasks were to analyze the process of transformation of the legal regime of works created by an employee under the legislation of Ukraine, to determine the advantages and disadvantages of legal regulation, to study the experience of regulating similar relations in European countries. The purpose of the work is reflected in the formulated conclusions regarding the optimal model of regulation of these relations in the context of balanced protection of the rights of their subjects. The study of the outlined relationships was carried out using a number of scientific methods, in particular, dialectical, formal-logical, analysis and synthesis, system-structural, formal-legal, comparative-legal, logical-legal, method of interpreting legal norms, prognostic, method of legal modeling, logical and legal method. Studying the issues of practical application of the provisions of the legislation, judicial  protection of the relevant rights, analysis of the positions of scientists and practitioners made it possible to draw a conclusion about the ineffectiveness of the model of regulation of joint copyrights of the employer and the employee. The current state of the studied relations, the experience of their regulation in European countries, the need to harmonize the law of Ukraine with the law of European countries prove the expediency of providing exploitation copyrights for works to the employer, as well as the possibility of including the copyright fee in the employee's salary. At any stage of the relationship, the employee and the employer retain the legal opportunity to enter into an agreement on the legal regime of works, the legal fate of exploitation  rights to them, payment of royalties for the performance of certain tasks, etc. In order to eliminate conflicts between legal norms, in accordance with the established principles of copyright, amendments to the legislative provisions are proposed. In particular, it is proposed to provide for the emergence (rather than the transfer) of exploitation copyrights from the employer, as the primary subject, from the moment of creation of the work. The need to exclude from the law the norm on the employer's right to instruct other employees to complete, supplement and change  works without the consent of their author is substantiated, since such actions can violate the author's moral right and harm his creative reputation.