In Argentina, the ownership of copyright for works created by employees in an employment relationship is a topic that generates various interpretations and debates in both doctrine and jurisprudence. Unlike other countries, where more specific legislation may exist, Argentina does not have a general rule in the Intellectual Property Law (Law 11.723) or in the Labor Contract Law that directly addresses this issue. However, some specific provisions and general principles of law provide a framework for how this situation is resolved in practice.
Specific Cases Regulated by Law
Although there is no general rule, the Intellectual Property Law establishes certain specific cases regarding copyright ownership in the employment context, such as:
- In software development, the rights belong to the employer if the program was created by an employee hired for that purpose (Art. 4, inc. d).
- In collective works, rights are shared among the collaborators unless otherwise agreed; in the case of anonymous collaborators, the publisher holds the rights (Art. 16).
- For journalistic works, authors of signed contributions in media retain their rights, while those of unsigned works may only publish them as a collection, unless otherwise agreed (Art. 29).
General Principles Applicable in the Absence of Specific Regulation
In situations where the law does not provide specific regulation, some experts suggest referring to the general principles of law, as indicated by Article 12 of Law 11.723, which states that intellectual property shall be governed by the provisions of ordinary law.
This implies applying the rules of the Civil and Commercial Code on work contracts (Art. 1251 and following) and the provisions of the Labor Contract Law (Article 82), which indicate that inventions made by an employee derived from the employer’s procedures or methods are the property of the employer.
In this context, some legal scholars argue that, since the employer provides the resources and directs the employee’s activities, the economic rights of works created within the scope of employment belong to the employer. Thus, any work produced by an employee in the course of their specific or implicit duties would be considered the property of the employer.
Jurisprudential and Doctrinal Interpretations
In practice, this reference to ordinary law has been applied in various judicial decisions, recognizing in some cases the ownership of works created in the context of employment in favor of the employer. However, this interpretation is not without criticism. Some sectors argue that the lack of specific protection for employees’ copyrights creates a lack of protection or inequality that requires a restrictive interpretation of the current legislation.
Moral Rights of the Author
It is important to highlight that the prevailing doctrine considers that the transfer of rights to the employer does not include the author’s moral rights to be recognized as the creator of the work.
Conclusion
In Argentina, the ownership of copyright for works created in an employment relationship depends on specific regulations and the interpretation of general legal principles. Since this issue presents multiple interpretations and can vary depending on the circumstances of each case, it is essential to have proper legal advice.
If you have any questions or need advice regarding copyright in the employment context, please do not hesitate to contact us.