Prawo właściwe dla umów wykorzystujących konstrukcję work made hire w świetle rozporządzenia Rzym I

Abstract

A work made for hire under the United States Copyright Act of 1976 is — (1) a work prepared by an employee within the scope of his or her employment; or (2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. (17 U.S.C. § 101) The first situation applies only when the work’s creator is an employee, not an independent contractor. The determination of whether an individual is an employee for the purposes of the work made for hire doctrine is determined under the common law of agency, in which a court looks to a multitude of factors to determine whether an employer‑employee relationship exists. On the other hand, if the work is created by an independent contractor or freelancer, the work may be considered a work for hire only if all of the following conditions are met: — the work must come within one of the nine limited categories of works listed in the definition above, namely (1) a contribution to a collective work, (2) a part of a motion picture or other audiovisual work, (3) a translation, (4) a supplementary work, (5) a compilation, (6) an instructional text, (7) a test, (8) answer material for a test, (9) an atlas; — the work must be specially ordered or commissioned; — there must be a written agreement between the parties specifying that the work is a work made for hire. In the United States a work for hire (published after 1978) receives copyright protection until 120 years after creation or 95 years after publication, whichever comes first. This differs from the standard U.S. copyright term of life of the author plus 70 years because the „author” of a work for hire is often not an actual person, in which case the standard term would be unlimited, which is unconstitutional (en.wikipedia.org/wiki/ Work_for_hire — cite_note‑Circ09‑2).