On work-for-hire intellectual property assets created under employment agreements for conducting scientific research, development and engineering

Abstract

Keywords: subjects of contractual relationships, work-for-hire intellectual propertyassets, author, employer, property rights for work-for-hire intellectual property assets,consideration
 The article analyzes the legal regime of official works createdduring the performance of the contract for the performance of research or researchand development and technological work. It is proved that the subjects of contractualrelations in addition to the executor and the customer should also include the creator(author, inventor) — an employee working in a scientific institution or enterprise,whose creative work created an official object of intellectual property. At the sametime, a scientific institution (enterprise) that has hired an employee under an employmentagreement (contract) acts as an employer. Based on the analysis of the legislationin the field of intellectual property and scientific sources, the author identifiesthe features of intellectual property. The meaning of the terms «duties» and «employer's order» is investigated. It is stated that there is no definition in the legislation ofUkraine of the term «official task» and requirements for registration of official taskfor the creation of a work. The grounds for recognizing the objects of intellectual propertyrights as official are determined and analyzed. The peculiarities of the distributionof property rights to official objects between the customer, the executor and theemployee-author in the context of the legal relations that arise and accompany theperformance of contracts are considered. Various contractual constructions used inthe mechanism of division of property rights into official objects are analyzed. Proposalsare formulated aimed at improving the local regulation of the distribution of propertyrights to service facilities. Particular attention in the article is paid to the issue ofpayment of remuneration to the author of the official object. The structure of such remunerationis analyzed, sources of its payment are offered, terms of payment of suchremuneration and their legal definition. It is proposed that the contracts provide forobligations (guarantees) of the parties to «finance» the customer and pay the contractorremuneration to the author for the creation and use of the official object.