When it comes to copyright-protected content in Canada, the economic rights automatically belong to the employer if the content was created by an employee as part of their duties.
Understanding the difference between economic rights and moral rights
Economic rights are sometimes referred to more broadly as patrimonial rights, especially in Europe. The word patrimony relates to possessions and property. Economic and patrimonial rights represent the right to use copyrighted content.
Those rights are different from moral rights, which cover mainly the author’s reputation and honour.
Employers own the economic rights
Section 13 of the Copyright Act sheds some light on these rights.
For content created at work, only the employer has the authority to sell, publish, distribute, reproduce and adapt the relevant content. In addition, only the employer can claim copyright royalties for the use of that content.
Since employers hold the rights to the content, they have the right to approve or refuse any requested uses.
Exception! This automatic devolution or transfer of economic rights to the employer may not occur in some cases. An example is the university sector, where copyright is assumed to belong to the professors, not the educational institutions.
Employees retain their moral rights
Moral rights include the right to be acknowledged as the creator of the content, the right to remain anonymous and the right to preserve the integrity of the work.
Authors always retain the moral rights to their content even if it was created as part of their job. Those moral rights cannot be assigned to the employer. However, it’s possible to refrain from exercising them by adding a waiver clause in the contract of service, for instance.
For clarifications about the rights to content created by employees, refer to the employment contract, the employer's policies or the collective agreement. If there are no clauses about copyright, the provisions of the Copyright Act take precedence.
How to tell if content was created as part of an employee’s duties
The first step is to determine whether the person who created the content is an employee. This distinction is very important. If an employment relationship exists and the content was created in the course of that employment, the employer owns the economic rights.
Confirming the author’s status
According to the Copyright Act, an employee is a person in the employment of another person under a contract of service or apprenticeship. Typically, that means an employment contract.
However, if the content was created for an organization by freelancers or self-employed individuals, the organization does NOT own the rights to the content. Similarly, volunteers can claim copyright on the content they create because they’re not staff members.
This is not an employee
Freelancers, self-employed individuals and volunteers aren’t considered employees and therefore retain complete ownership of their copyright. Their rights can be assigned only if a relevant provision is included in their contract with the organization.
It may seem obvious but it’s important to point out that the copyright on personal projects created by employees on their own time belongs to them.
However, if they create content on topics related to or inspired by their work as employees, the dividing line between personal and professional projects may become blurred. In that case, it would be useful for the employer and employee to discuss it or even draw up a written agreement.
What if there’s no contract?
The general rule is that the author is the first owner of the copyright on the content created. However, the employment contract overrides that rule.
Be sure to check that important document, which should specify details such as whether or not the moral rights to the content created in the course of employment are assigned to the employer.
As well, if there’s no employment contract, copyright in works created as part of an employee's duties belong to the employee, not the employer.