Freelancer Law: Part 4. – Copyright

freelancer law part 4 8212 copyright 61b0958531b09

This part is intended for all creative professions. Copyright should be known not only to graphic designers and copywriters, but also to programmers and UX designers. The article was created in collaboration with Tereza Pecková from the law firm Legitas.

As we wrote in the first part of the series, the work doesn’t have to be just artistic. The author’s work can also be a blog article, logo design, book translation, website design, wireframes or a computer program.

What copyright is for

Copyright law protects your work from abuse . In other words, the law gives your client some assurance that the work you create for him as a contractor will be original and he will not receive a stolen and repainted version of someone else’s idea.

If the work is created by an employee, the rights to use it automatically belong to the employer. When you create for your clients, the situation is different. In Czech law, a work is your intellectual property and you cannot sell it to anyone as such . However, you may license the use of your work under the license agreement.

TIP: We write a separate article on how to create a work contract, licenses and other legal agreements.

What are licenses

The license can be unlimited or well-defined . In the case of an exclusive license, you, as the author, agree not to grant the license to anyone other than the specific licensee to use your work. You can also specify the period for which you grant the rights or the territory in which the transferee can use your work.

Example: Take a slogan, for example. If multinational corporations around the world intend to use it, it is logical that the financial benefit that will flow from your striking slogan will be many times greater than if it is used only in the Czech Republic. The price of the license should be directly proportional to this.

What are your rights as the author of the work

Property rights

Property rights in a work are a exclusive right to decide whether to use it . This means that people other than you as the author can only use your work with your permission. These copyrights last for the rest of your life and for seventy years after you leave the world.

The right to use the work includes:

  • Right to reproduce the work (such as printing a poster you designed and have in your online portfolio)
  • The right to distribute the work or a copy thereof (such as distributing your e-book over the Internet)
  • The right to lend a work or a copy of it
  • The right to communicate the work to the public (broadcast on radio or television)

Personal rights

These are related to the author’s personality and are therefore non-transferable and last until the author’s death, when they cease to exist. However, after the author’s death, the authorship itself is still protected, so that no one may appropriate the authorship of a foreign work (the real author must always be mentioned, if known) and no one may use the work in a way that reduces its value. >

Author rights include:

  • The right to decide to publish the work (They may not reprint your article in the journal without your consent.)
  • Right to have authorship (You have the right to be named as the author of a photo or translation.)
  • The right to the integrity of a work, which means that your work may not be remade or use it in a way that reduces its value (For example, the client may not use the logo you created for the product on a new product in a completely different color.)

Copyright in practice

Logo and its protection

Under Czech law, the logo may be copyrighted . The rights to the author’s work belong to you as the author – the natural person who created the work (s.r.o. will never be the author).

When I create my own logo

If you design your logo using your own invention, you don’t have to worry about authorship . The only problem could be if you were too inspired by another, already existing logo.

TIP: If you used someone else’s work to create the logo, we encourage you to obtain additional permission to modify and use it. Otherwise, you may face copyright disputes or unfair competition. Or trademark disputes.

When an employee logo is created

Employees who created the logo in the performance of their duties under an employment or similar contract have personal rights as the author. These include the right to use the work in a way that does not reduce its value. His employer is a legal copyright officer and has the right to use the logo and the right to have the logo used. It therefore decides how the logo will be handled.

When you design a logo for a client

If you design your logo as a freelancer, this work is your intellectual property . You can claim property and personality rights related to the work and license your client to use it.

We recommend treating the delivery of the work as follows:

For the preparation phase enter into a work contract and a license agreement with the client (in which the terms of the logo creation and the exclusive license to use it can be agreed, including consent to its later modifications, incorporation into another work and unlimited trademark registration). >

Write a license agreement for the finished logo (which will authorize all possible uses of the logo and consent to modifications to the logo, its incorporation into another work, and consent to unrestricted registration of the logo as a trademark). p>

Good to know: If the license rights for your work are not specified, you can use the work created for the client yourself. This is with reference to the regime of the so-called presumption of a license, according to which it applies that the author of a work to order has granted a license to the extent resulting from the purpose of the contract. As part of this regime, you, as the author, can also license someone else as long as it does not conflict with the legitimate interests of the client.

Unfair competition

There are less positive issues with copyright than creativity. Namely, unfair practices that abuse other people’s work or parasitism on another’s reputation.

Unfair competition is as follows. Your competitor is trying to confuse consumers by:

  • misleadingly refers to goods or services (You know, you buy butter, but on closer inspection, you find that it’s a mixture of vegetable fats with 30% milk fat.)
  • creates a likelihood of confusion (This is “the more lanes, the more adidas.”)
  • Promotes your brand with misleading advertising (Those who have tried guaranteed hair loss or breast augmentation products know what they’re talking about.)

Another case is when the competition harms you by parasitizing on your reputation. In other words, it abuses the reputation of your brand, product or service, giving the “parasite” a benefit it would not otherwise achieve. Unlike other cases, reputation parasitism does not need to deceive customers.

Example: You’ve made your site, you feel unique and you do a good job. But your joy doesn’t last long, because the competition’s website has started to show off in strikingly the same colors, the tonality of the language used is similar, and the main graphic elements have appeared not only on the website, but also on the car stickers.

Or worse. Your competition has prepared a table comparing the services it provides compared to your service. Scoring as in the camp, you are not just a champion.

How to defend

In both cases, we recommend contacting the competition in writing so that they stop doing so. If that doesn’t help, don’t be afraid to contact your lawyer and jointly evaluate the degree of infringement of copyright, trademark rights, or what elements of unfair competition you see in this case. You can usually demand that your counterparty end the conduct, as well as damages and reasonable redress.

Copyright

How a trademark works

The best way to avoid disputes over the originality of your logo, slogan, or other trademarks of your brand is to register them as a trademark . Otherwise, defense against imitation is difficult. You have to prove that you actually use the label and that you are well known in the market.

If you have a trademark, you only need to prove in the event of a dispute that you own it and that your competition uses similar designations for products and services similar to yours. You don’t have to prove that you really use your logo or slogan, you’re in the market, or the way the unfair competitor has harmed you.

Recommended reading: You can find everything you need to know about your trademark, including how to register it, in our Trademark Protection interview.

If someone abuses your trademark, you have the right to demand that they refrain from doing so if they have harmed you or caused you to lose profits. You are also entitled to claim damages and unjust enrichment.

Copyright and Software Development

Computer programs are expensive. Not all of them are a unique result of the author’s creative activity, yet, with a few exceptions, they are considered copyrighted works to which the property and personal rights we have explained above apply.

When software is copyright

If a computer program is a work expressed in an objectively perceptible form , which is also a unique result of the author’s creative activity. In other words, we can think of the source code as “text” that a computer’s processor reads and translates into a brand new web or mobile application.

The second case is a situation where a computer program does not meet the requirement of uniqueness, but fulfills “only” the requirement of originality in the sense that it is the author’s own intellectual creation. This is a situation where two developers write source code. The two codes are so similar that we can rule out “uniqueness”. Nevertheless, it is an original work of each of them.

Computer programs that are not protected

Simply put, it is a computer program * that does not meet the requirements of uniqueness or originality. In practice, these are computer programs that are created automatically , for example, by another program, or routinely with predetermined procedures or purposes. Of course, this does not preclude the protection of such computer programs on the basis of other intellectual property rights, such as know-how or trade secrets.

Practical example: Copyright cannot be protected by mere rules or algorithms, only by their final expression as a whole. There must be a certain inner sequence and structure, creating a content that is not just a mixture of unconnected ideas. It is therefore also possible for another person to use the algorithm in their program to achieve a whole that is also protected by copyright as the original work.

* Note: For simplicity, we use software and computer programs as synonyms, although the courts see a theoretical difference in these terms.

Software co-authorship

There are many cases where several people are involved in creating a computer program and this is co-authorship. This means that the authorship of the computer program and the protection associated with it arise for each of the co-authors, jointly and severally, regardless of the sequence of cooperation.

It doesn’t matter if the goal was to work on one program from the beginning. A person who did not work on the program from the beginning with the original author, but, for example, subsequently modified the software (but only if the modification took place before the completion of the work), will also have the status of co-author.

Attention: A person who has only contributed can not be considered a co-author. The work is only the result of the joint creative efforts of all co-authors, while the individual contribution of each of them is not a work in itself and the individual parts are useless without the others.

 

Freelancer Law: Part 4. – Copyright

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