Vyshnovetska S. V. Concept and Criteria of the Official Work Created in the Result of Labour Agreement Execution.
In the article an author analyzes the definition of official work and its criteria determined by legislation and proposed in scientific literature. The author pays attention to certain differences in consolidating the proprietary right in official work in p. 2, article 429 of the Civil Code of Ukraine and p. 2, article 16 of the Law of Ukraine “On Copyright and the Related Rights”.
It is noted that despite the effective legislation does not contain the concepts of “official duties” and “official task”, such concepts make significant contribution in determining the creative results as official ones.
The author researches an approach formed in judicial practice of Ukraine on assessment of evidences confirming the compliance of intellectual activity result to the official one’s attributes, namely: the documents regulating the employee’s work duties should directly unequivocally follow that creation of intellectual activity result is a part of the employee’s work duties. Analysing the judicial practice, it is concluded that employers often neglect the documental consolidation of the employee’s duty to create the official work within his/her certain work function.
Based on the complex research of legislation, scientific literature and judicial practice it is concluded that official work could be considered as a work created in the process of execution of work duties by the employee that foresee creation of the intellectual activity result within execution of the official task consolidated in documental way and entrusted to the employee within his/her work function.
The author states the contractual nature of the employer’s rights and their derivative nature, as the employer’s exclusive rights in the official result of intellectual activity, containing the competence to use and dispose it, have just a contractual basis. Although, it is a typical trend to grant the primary copyrights to the non-creative subjects (legal entities) as in the Anglo-Saxon countries, as in the continental law countries. Obviously, this is due to the influence of the EU communitarian legislation on national legislations of the EU Member States. Many EU directives and regulations regulate a division of the rights to various intellectual activity results between their creators and other entities, including the case when some object is created by the employee.
Key words: official work, labour agreement, official duties, official task, official instruction.