Moritz Roettinger <moritz.roettinger[_at_]dg23.cec.be> wrote:
>
> As far as "works made for hire" are concerned, can't you say - also
> according to US law - that this is a so-called "legal license", i.e.
> copyright belongs in the moment of creation to the author who is by
> law obliged to license it to the employer etc.?
I don't think so. Under U.S. law, the employer for hire _is_ the author (and, for instance, says so on copyright registration forms). See 17 U.S.C. sec. 201(b). This is why the better authority states that you cannot cure a work for hire defect retrospectively, e.g. by entering into a work for hire agreement after the work has been created. Also, an employee for hire doesn't benefit from the reversionary interests created by the U.S. regime, which other kinds of author/transferor can enjoy, suggesting, conceptually at least, that a transfer never took place between employee and employer. (Isn't this also true of works for hire under British law, for instance, as regards the reversionary interests that exist in certain copyright transfers executed prior to 1956?)
On the other hand, can it be said that the "legal license" (or, more properly, "legal assignment") concept applies to the work for hire provisions concerning software under French law? Art. L 113-9 of the Code de la Propriete Intellectuelle provides that the patrimonial rights under copyright in software and its documentation are "devolved" to the employer, suggesting that the employee is, indeed, the author of the work, but does not have the right to exploit its copyright. (Also, Article L. 121-7 suggests of software that the employee for hire retains a vestigial moral right in the software, albeit highly circumscribed. This, of course, is a right of authorship.)
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