Copyrights & Intellectual Property Rights ('IPR')
The issue
The issues here would appear to be whether there is anything either in the
contract, or in the actual relationship between Individual and Client, in
relation to this factor which
·
helps towards a decision on whether that
relationship, had it been direct and without a company in between, would have
been an employment contract - a contract of service - or a contract for
services, or
·
would be inherently inconsistent with a
contract of employment.
Legal issues, and the Revenue Guidelines
There appears no reference to IPR in the Revenue's guidelines. However,
where the contract provides for such rights to belong to the Client, they have
been known to seek to cite that as a pointer towards employment.
As a matter of law:
·
In the case of an employee, any copyrights that
are created by an employee in the course of his employment automatically vest in
the employer (s11(2) CDPA 1988).
·
In any other case, (as here, given the
non-employed nature of the legal relationship), copyrights arising in the course
of the services will vest in the author on creation (s11(1) CDPA 1988.
Here, the individual will be the author of any copyrights arising, and so
the copyrights will vest either in the individual, or in the Contractor as the
employer of the individual.
Given the desired end result of such copyrights being owned by the client
(and that is often after all substantially what the Contractor is being paid
for), it is necessary for such rights to be assigned by the Contractor.
Conclusion
what would the position be likely to be in relation to this factor for a
hypothetical employee? There would be no need for a term relating to copyrights
in the contract of employment, since these would automatically vest in the
employer
.
However, terms reinforcing this are frequently found in contracts of employment.
what would the position be likely to be in relation to this factor for a
hypothetical obviously self-employed person or consultancy (eg Andersens, or by
PWC, or EDI?). Logic and experience suggests that in the case of a hypothetical
obviously self-employed person or consultancy, either:
·
Because the contract is not employment,
copyrights when they arose would first vest in the Individual (or in his / her
own company, as his / her employer); or
·
such rights might then either be assigned to
the Client, or might be retained but with the Client granted licence to use the
rights.
do the facts here actually provide a helpful pointer towards either view?
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