Works Created within the Course of Employment in the Current Modality

Abstract

Many legislations grant the employer ownership (some even authorship), unless otherwise agreed, over the works created by their dependents, hired exclusively for such purposes, within the course of employment. That is, for the ownership (or authorship, according to the legislation) to belong to the employer, the absence of an agreement to the contrary is necessary, that the employee has been hired exclusively to carry out said creation, and that it be carried out within the course of the employment: fulfilling their usual work functions and within the workplace.

Perhaps, until recently, it was easy (except for exceptional cases) to determine when a work had been created by a clerk within the course of employment and when not. By answering the following questions, the solution would be found: Was the creation done in the workplace? Was the creation done within your working day? In addition to performing it within the workplace and during his working hours, did the salaried author perform it while performing his usual job functions?

However, the strong impact that the pandemic generated by COVID-19 had, producing changes at a global level in contracting modalities cannot be ignored. Many dependents no longer work in person at the company's home, but do so (at least partially) remotely. Neither do many of the dependents who work remotely fulfill a certain working day. Therefore, in the current situation, it will not be easy to determine when a work created by a dependent has been within the course of employment and when not.