Rector's Directive No. 17/2018 ****************************************************************************************** * ****************************************************************************************** ****************************************************************************************** * Directive of the Rector of Charles University on the Provisions for Work for Hire at Cha ****************************************************************************************** Date of effect: 1 May 2018 *========================================================================================= * Preamble *========================================================================================= This directive aims to set out the basic statutory requirements for the work for hire in a section 58 of Act No. 121/2000 Sb., on Copyright, Rights Related to Copyright, and on Amen Acts (the Copyright Act), as amended (see appendix), as well as to ensure proper applicati Charles University, individual faculties, and other units of Charles University, having re conditions, practices, and custom, as well as the type and specialisation of individual fa units of Charles University, while exercising author’s economic rights to the works for hi consideration to the principles of quality publishing in connection with the role of Charl society and the Open Access principle. *========================================================================================= * Article 1 – Basic Statutory Attributes of a Work for Hire *========================================================================================= 1.The provisions for works for hire apply in accordance with section 58 (1) of the Copyrig following statutory requirements are met: • the work of authorship was created while discharging the duties arising from an employ relationship (based on employment or an agreement to complete a job or an agreement to and • before the work of authorship was created, no arrangements derogating from section 58 Act were agreed upon between the author and the employer. 2.Works for hire also include commissioned works, if the work concerned is a computer prog database, or a cartographic work that is not a collective work (section 58 (7) of the Co A work for hire is also a work created while discharging the duties arising from a relat the members of a legal entity’s bodies and the legal entity itself (section 58 (10) of t Act). 3.If the requirements under section 58 of the Copyright Act have been satisfied, the emplo University) exercises all author’s economic rights to the work for hire from the time th the work for hire and copyright arose with respect to such work. Specifically, the right author’s economic rights implies that only the employer may use the work for hire and gr third parties to use the work, and collect licence fees or fees for using the work for h author may neither use the work for hire, nor grant licences, in his or her own name, to unless otherwise provided before the creation of the work for hire. The employer may ass to exercise author’s economic rights to a work for hire to a third party only with the a (section 58 (1) of the Copyright Act). 4.Where the employer does not at all exercise author’s economic rights to a work for hire, them inadequately, the author may ask the employer to grant him the licence under the us unless there is a serious reason on the part of the employer to refuse it (section 58 (3 Copyright Act). 5.The author’s moral rights to a work for hire remain unaffected in accordance with sectio the Copyright Act; however, if the employer exercises author’s economic rights to a work the author is presumed to have consented to the publication, modification, adaptation (i translation), merger with another work, inclusion into a collection of works, and also t of the work for hire to the public under the employer’s name. The employer’s name is ind particular in the copyright reservation (©, the employer’s name, year of publication). A time, the author’s name is provided, where relevant: such as where academic staff member of academic and scientific publications. Authorship is usually not stated in the case of created in particular by non-academic staff, such as Charles University annual activity reports, strategic plans, evaluations, and promotion materials. Furthermore, under secti the Copyright Act, unless otherwise agreed, the author is presumed to have consented to of his or her unfinished work for hire if the employment relationship ends before the co work and if there is a reasonable concern that the employee will not complete the work f timely and due manner as needed by the employer. 6.At Charles University, such employer’s entitlements must be taken into consideration, fo the case of derivative works, modifications, and other interventions in the content of a but always with due respect to the moral rights (in particular, using the work without d the value of the work in accordance with section 11 (3) of the Copyright Act). The emplo to ask first the employee as the author of the work to carry out any adaptation, modific other changes to a work for hire, merger of the work for hire with other works or elemen of the work in a collection of works, etc.; only if the employee refuses to carry out su can the employer ask other persons to carry them out. The author of a modification (adap always a natural person; if the author is an employee and the modification amounts to a (adaptation) carried out while discharging the duties arising from an employment relatio employer, then the provisions under section 58 of the Copyright Act apply to the adaptat hire). 7.Before the work of authorship is created, the author and employer can agree to derogate 58 of the Copyright Act, for example to the effect that the author’s economic rights to authorship will be exercised by the author, and that the author will enter into a licenc the employer. Likewise, it is possible to agree to derogate from the statutory regulatio payment of fees. 8.At Charles University, the issue of whether the provisions for work for hire apply must on a case-by-case basis, bearing in mind all circumstances surrounding the creation of t authorship. In particular, it will be determined whether or not such work of authorship and followed from the discharge of specific employment duties for the employer which mus identifiable from the type of work, or the specific job description, and which arose und circumstances (e.g., the creation of the work was a task assigned by the manager). 9.If the requirements described above have been met, and depending on the specific circums surrounding the creation of the work of authorship, the works for hire can, in certain f include for example course materials prepared for teaching purposes for lectures or semi images for illustration purposes) or textbooks (workbooks). *========================================================================================= * Article 2 – Ensuring the Right to Exercise Author’s Economic Rights to a Work for Hire *========================================================================================= 1.Depending on the conditions, practices, and custom at the respective faculties and other Charles University, such as employment conditions, payment conditions, or conditions for activity and publications, the employer’s right to exercise author’s economic rights to is ensured by the following entities: • the publications unit of Charles University; • the competent publications unit of a faculty; • another competent body of a faculty; • the competent body of another unit of Charles University; • Karolinum – Charles University Press; • another publications department of Charles University; • the Knowledge and Technology Transfer Centre of Charles University; • directly the author, based on a special authorisation granted by the employer; such an can be a licence granted to the author with the right to grant sub-licences, or an age authorisation in accordance with this directive, or another authorisation (e.g., power in this case, the competent faculty stipulates the conditions under which this right c including the possibility for the author to grant licences and enter into licence agre of the faculty (the employer). 2.An employee who is the author, or who acts on behalf of a group of authors, of a literar authorship (a work for hire), such as a scientific or academic article (paper), for whic exercises author’s economic rights, represents the employer when granting gratuitous lic commercial use of such work for hire which is, for the purposes of this directive, use i or non-periodical publication. 3.When acting on behalf of the employer under paragraphs 1 and 2 of this article, the auth required to heed the interests of Charles University and his or her duties arising from regulations of Charles University or a competent faculty or a unit of the University, in the regulations governing the registration of the RDI outcomes and other intellectual ac (including a publication platform of the highest possible standard, proper recording of for the employer [OBD], use of Open Access tools, accessibility of a publication of Char [repository of Charles University]), as well as other obligations of Charles University particular through funding contracts or similar agreements. 4.When acting on behalf of the employer under paragraphs 1 and 2 of this article, the auth abuse his or her position to acquire personal benefits. *========================================================================================= * Article 3 – Consultations and Assistance during Implementation *========================================================================================= 1.Consultations and assistance during the implementation of this directive are provided by Office, via Karolinum – Charles University Press; legal issues are dealt with by the Ins Copyright, Industrial Property, and Competition Law of the Faculty of Law, Charles Unive the legal issues concerning commercialisation transfers are resolved by the Knowledge an Transfer Centre of Charles University. *========================================================================================= * Article 4 – Final Provision *========================================================================================= 1.This directive becomes effective on 1 May 2018. In Prague on 27 April 2018 Prof. MUDr. Tomáš Zima, DrSc., MBA Rector *========================================================================================= * ***** Appendix ***** *========================================================================================= The provision of section 58 of Act No. 121/2000 Sb., on Copyright, Rights Related to Copyr Amendment to Certain Acts (the Copyright Act), as amended (text as on 20 April 2017) Section 58 – Work for Hire 1.Unless otherwise agreed, the author’s economic rights to a work created by the author wh his or her duties arising from the employment or civil service relationship are exercise employer in his own name and on his own account. Such work is a work for hire. The emplo assign the exercise of the right pursuant to the first sentence to a third party with th consent, unless this occurs when an enterprise is being transferred. Such consent is pre irrevocable and applying to any further assignment. The third party to whom the right ha is, for the purposes of this act, presumed to be the employer. 2.In the event of the death or dissolution of the employer who was entitled to exercise th rights to a work for hire and who has no successor in title, the entitlement to exercise acquired by the author. 3.Where the employer does not at all exercise the economic rights to a work for hire, or e inadequately, the author may ask the employer to grant him the licence under the usual c unless there is a serious reason on the part of the employer to refuse it. 4.The author’s moral rights to a work for hire remain unaffected. Where the employer exerc economic rights to a work for hire, the author is presumed to have given his or her cons publication, modification, adaptation (including translation), merger with another work, into a collection of works, and also to the presenting of the work for hire to the publi employer’s name, unless otherwise agreed. 5.Unless otherwise agreed, the author is presumed to have consented to the completion of h unfinished work for hire if the legal relationship ends before the completion of the wor is a reasonable concern that the employee will not complete the work for hire in a timel as needed by the employer. 6.Unless otherwise agreed, the author of a work for hire is entitled to a reasonable addit remuneration from the employer if the wage or any other compensation paid to the author is clearly disproportionate to the profit from the utilisation of the rights to the work to the significance of such work for the achievement of this profit; this provision does the works referred to in paragraph 7, irrespective of whether they are actual works for considered as such, unless otherwise agreed. 7.Computer programmes and databases, as well as cartographic works that are not collective presumed to be works for hire even if they have been commissioned; the person who commis presumed to be an employer. The provisions of section 61 do not apply to such works. 8.The rights and duties under paragraphs 1 to 6 remain unaffected upon the termination of relationship referred to in paragraph 1 or, where appropriate, paragraph 7. 9.In the case of agency employment4d), the employer for whom the agency employee temporari employment contract or agreement to perform work is presumed to be the employer for the provision, unless otherwise agreed between the recruitment agency and such an employer. 10Provisions of paragraphs 1 to 6 and paragraph 8 apply by analogy to the works created to the duties arising from the relationship between a legal entity and the author who is a governing body or another elected or appointed body; in this case, such a legal entity i the employer. The provision of section 61 does not apply to the works thus created. ____________________ 4d) the Labour Code.