Features of Regulation of Relations on Works for Hire between Employees and Employers in the IT Field

In the field of IT, the main asset of the company is often intellectual property - program code, algorithms, databases and other "software". These results of intellectual activity are created by employees in the process of work, and it is here that the key questions arise: who owns the rights to such developments, what guarantees does the author retain and how can the employer protect his interests?

Lack of regulation in the relationship between employers and employees can lead to the risk of disputes. In this regard, the correct legal registration of relations regarding works for hire is becoming an integral part of IT capital management.

Works for hire and distribution of rights

In accordance with the provisions of Article 1225 of the Civil Code of the Russian Federation, works of science, literature or art are the result of intellectual activity.

By virtue of paragraph 3 of Article 1228 of the Civil Code of the Russian Federation, the exclusive right to the result of intellectual activity created by creative work initially arises with its author. This right can be transferred by the author to another person under a contract, and can also be transferred to other persons on other grounds established by law.

Exclusive rights can be transferred by authors on various grounds: under an author's order agreement (Article 1288 of the Civil Code of the Russian Federation), under an agreement on the alienation of an exclusive right (paragraph 2 of paragraph 1 of Article 1240 of the Civil Code of the Russian Federation), under a license agreement (paragraph 3 of paragraph 1 of Article 1240 of the Civil Code of the Russian Federation), in the procedure for creating a work for hire (Article 1295 of the Civil Code of the Russian Federation).

A work for hire, within the meaning of paragraph 1 of Article 1295 of the Civil Code of the Russian Federation, is the result of intellectual activity created by an employee as part of the performance of labor duties. In the IT field, this can be program code, databases, interface design, or other objects directly related to the company's activities.

In civil legislation, the following principles of distribution of rights to objects created within the framework of labor duties can be distinguished:

• The author always retains personal non-property rights (the right of authorship, the right to a name, etc.);
• Exclusive rights, as a general rule, are transferred to the employer, provided that he complies with certain conditions of use.

It should be noted that the employer has an obligation to dispose of the exclusive right to the result of intellectual activity created by the employee in a timely manner. That is why in practice the execution of documents is of particular importance: provisions in the employment contract, job descriptions and local acts of the organization.

Features in the IT field

Within the framework of this article, we propose to dwell in more detail on works for hire created by employees of the IT sector.

In this area, works for hire have their own characteristic features, this is due to both the nature of the objects themselves and the conditions of their creation.

Let's list the main results of intellectual activity:

• Computer programs and source code. They are considered objects of copyright and are protected similarly to literary works. The main difficulty in working with these objects is that the code is often finalized gradually, by different people, and each version is formally a new object.
• Database. Their value lies not only in information, but also in the selection, systematization and structure. When working with this object, it is necessary to secure the rights to the database as a whole and take into account the possible rights of employees to its individual parts.
• Interface design and graphic elements. These RIA are protected as works of graphics or design, and disputes often arise due to their parallel use, for example, by third-party contractors.

It is also necessary to note the features of the development of IT products. For example, several employees who are co-authors almost always work on the product, and therefore it is necessary to take into account the interests of all persons whose creative work is invested in the object. It is also necessary to take into account that an IT product is rarely "finished" - each update or new version forms a separate copyright object.

Thus, the regulation of works for hire in IT requires special attention to detail: it is necessary not only to secure the rights of the employer, but also to take into account the specifics of the objects themselves and the process of their creation.

Recommendations for employers and employees

For employers, the key task is the correct registration of rights to works for hire, i.e. competently built relationships with employees.

It should be noted that domestic legislation does not establish specific types of evidence that must confirm the official nature of the work.

The official status of a work can be confirmed by any documents confirming that the work was created by an employee as part of his official duties.

As stated in paragraph 104 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 23.04.2019 No 10 "On the Application of Part Four of the Civil Code of the Russian Federation" (hereinafter referred to as Resolution No 10), in order to determine whether a work created by an employee on a specific assignment of the employer is an employee's work, it is necessary to investigate the question of whether this task was within the scope of the employee's job duties. If such a task of the employer was not included in his job duties, then the created work cannot be considered as an employee - the exclusive right to it belongs to the employee, its use by the employer is possible only on the basis of a separate agreement with the employee and subject to the payment of remuneration to him.

Thus, documents indicating the official nature of the work may be:

• an employment contract indicating the employee's labor function in creating works;
• an additional agreement to the employment contract, which regulates the issues of ownership of rights to works for hire;
• job description;
• service assignment;
• notification of the completion of an official task;
• act of acceptance and transfer of the created work;
• order for the payment of remuneration.

Thus, the regulation of relations related to works for hire in the field of information technology is of key importance for the legal protection of the interests of both the employer and the employee. The lack of proper registration of such relations can lead to the loss of exclusive rights to the results of intellectual activity, complicate their use in economic activities and become the basis for litigation.

Proper consolidation of the procedure for the distribution of rights, documentary evidence of the creation and transfer of works, as well as the establishment of transparent rules of interaction can reduce legal risks. For employees, this approach guarantees the recognition of their author's contribution, respect for personal non-property rights, as well as the receipt of remuneration.