The pandemic is increasingly blurring the boundaries between work and personal time. A recent report released by HR consulting firm Robert Half found that more than 55 per cent of employees now work on weekends and 34 per cent work more than eight hours a day since transitioning to remote work.
Unlike patents and trademarks, copyright is a form of intellectual property that most workers will create during their careers. The removal of a standard 9-5 workday raises new questions around who owns the copyright to work created by employees outside office hours.
What does copyright protect?
Copyright exists in every original literary, dramatic, musical, and artistic work. Creativity is not necessary, rather the test for originality only requires that an individual exercise their skill and judgement in creating a work. Text documents, computer programs, photographs, templates, plans, and sketches are just some of the works that can attract copyright protection. And unlike patents and trademarks, copyright arises as soon as a work is created. Moreover, a copyright owner has the sole legal right to produce, reproduce, perform or publish the work. Generally, the creator of a work is the copyright owner. However, employer-employee relationships are a big exception to this rule.
Employees and the Copyright Act
Under section 13(3) of the Copyright Act, employers own works created by their employees during the course of their employment – unless an agreement stating otherwise exists.
The decisions that have considered what “in the course of employment” means are limited and were decided pre-pandemic. However, these cases suggest that work created after hours and outside the office may still belong to the employer if it relates to the employee’s duties.
In Corso v. NEBS Business Products Limited 2009 ONSC 11215, the Ontario Superior Court held that it was immaterial that an employee had created a project on his own time. In this case, the court found that the employee was developing a product in his off-hours to compete with his employer.
Similarly, the Ontario Court of Appeal in Hanis v. Teevan 1998 ONCA 7126 held that labelling a project as “personal” does not determine who is the copyright owner.
Contrast these decisions with Mejia v. LaSalle College International Vancouver Inc 2014 BCSC 1559. In this case, the defendant school employer was held liable for copyright infringement after publishing an instructor’s photo on the school’s Facebook page without permission. Although the teacher took the photo in a school classroom during a school event, the BC Supreme Court concluded that the location was not enough to transfer copyright to the employer. Again, the court looked at the nature of the employee’s duties and determined that the school hired the instructor to teach. Photography fell outside the scope of the instructor’s general employment duties, therefore the copyright did not belong to the employer.
It is worth noting that section 13(3) of the Copyright Act only applies to employees. Independent contractors generally retain copyright ownership over their work unless a contract states otherwise.
Distinguishing between employers and independent contractors
No single test exists to determine whether someone is an independent contractor or employee. Instead, the nature of the relationship needs to be examined to determine whether a person is in business for themselves (independent contractor) or working for someone else (employee).
How much control an employer has over a worker’s activities is always a consideration, but other factors are also relevant including whether the worker supplies their own equipment, hires their own staff, is exposed to financial risk, and has the potential opportunity to make a profit.
The shift to remote work may be on the rise, but this does not necessarily change the nature of the employment relationship. Prior to the pandemic, working from home was generally not enough to transform an employee into an independent contractor.
What about moral rights?
Copyright protects two categories of rights: economic and moral rights. Economic rights (discussed above) relate to who can make money from a work. These types of rights can be assigned to anyone.
For instance, from an employee to their employer. Moral rights are different. These are personal rights that recognize that a work is an extension of a creator’s personality. As a result, moral rights can never be sold or given away to anyone – but an author can always choose to waive them. In an employment setting this is usually done by contract.
Without a waiver, an employee still has rights to attribution and the integrity of the work. Attribution includes the right to be credited, remain anonymous and use a pseudonym in association with the work. Integrity means that the work cannot be modified, distorted or mutilated in a way that prejudices the honour or reputation of the author.
The future of work
A recent survey published by PwC Canada concluded that remote work may be here to stay and employees appear to be showing stronger support for remote and flexible work options. In terms of copyright, the location where employees complete their work may not have much bearing on who owns a work.
If a work is created by an employee and is connected to their employment duties, it is more likely that the work belongs to the employer. Moving forward, the importance of clear contracts and agreements that address employee duties, particularly around IP ownership and any waiver of moral rights within a remote working environment may be of growing importance for both employers and employees.
Written by Maggie Vourakes, JD Candidate 2022, enrolled in Professor D’Agostino’s Directed Reading: IP Innovation Clinic course at Osgoode Hall Law School. As part of the course requirements, students were asked to write a blog on a topic of their choice.