Copyright Questionnaire 2017
26 May a hiring party own a copyrighted work made by an independent contractor?
The statutory provision in the CNRA regarding commissioned works has probably caused more debate than any other provision.
That provision states that the copyright in commissioned works vests with the author unless otherwise agreed and adds that, unless otherwise agreed, the hiring party may use the work without the author’s permission (but not without compensation) for the purposes it was ordered.
The debate has been focused on whether ‘agreed otherwise’ allows the parties to agree that the entire copyright may originally arise for or vest with the hiring party. Practitioners often use clauses to that effect. On the other hand, some commentators have openly criticised and are opposed to that, because who may originally hold the entire copyright may only be determined by an imperative statutory provision (ie, as a general rule it is always the author; and other than that – only in exceptional cases provided for by law, eg, in the case of computer programs and periodicals) and it is not possible for the parties to determine that by way of contract.
Some light has been shed in a recent case before the Bulgarian Supreme Court of Cassation where one of the questions that was considered concerned the scope of ‘unless agreed otherwise’. The court made it clear that in the case of commissioned works, the hiring party enters into the agreement in order to use the work that will be created and that the author retains the copyright (ie, the copyright arises in the same way as when the work is created at the author’s own initiative) implying that it may not be specified by contract that the entire copy- right shall vest with the hiring party.
What the court went on to say, however, raises certain questions. The court held that, by law, the hiring party was entitled to the exclusive use of the work. Two things must be noted in this respect – first, the law makes no reference to such ‘exclusivity’, implying that this should be subject to express agreement between the parties (as opposed to the case of employment relations where ‘exclusivity’ is expressly referred in the law); and second, the court did not mention that the use must be
‘for the purposes it [ie, the work] was ordered’ (perhaps that could be taken to be self-explicable and the court did not need to mention it).
The court explained that ‘unless agreed otherwise’ might relate to the possibility for the parties to agree other parameters of the exclusive use (eg, non-exclusive use, term of use, territory of use, etc).
The agreement does not need to be in writing (ie, it may be oral).
27 May a copyrighted work be co-owned?
Yes, it may. Co-authorship is generally possible between natural persons, but theoretically is not entirely excluded between legal entities or even between a natural person and a legal entity in exceptional circumstances.