Contracts of mandate and copyright in cultural institutions
In the activities of cultural institutions, we often cooperate with creators under various civil law contracts. Although work contracts are commonly associated with the creation of copyrighted works, it is worth remembering that such works may also be created under commission contracts. Therefore, it is important to carefully analyze the subject matter of the contract and sometimes also include provisions for copyright transfer or licensing in assignment contracts.
1. what is a “work” under copyright law?
According to the Law on Copyright and Related Rights, a work is any manifestation of creative activity of an individual character, established in any form, regardless of value, purpose and manner of expression. This means that a work does not have to be completed or have a material form – it is sufficient that it is the result of creative work by a person and has an individual character.
2. A contract of mandate and the creation of a work
A contract of mandate is concerned with the performance of specific activities or services, with no guarantee of achieving a specific result. Unlike a work contract, where remuneration is tied to the completion of a specific work result, a contract of mandate focuses on the due performance of specific activities.
An example of an assignment contract that may create a work:
A cultural institution hires a person under an assignment contract to conduct educational workshops for children on contemporary art. Under the assignment, the instructor is not to create a specific, predetermined work, but to conduct a series of classes in accordance with the institution’s guidelines.
Why can a work be created?
During the course of the assignment, the workshop leader may prepare original educational materials, such as:
1. Lesson plans,
2. Multimedia presentations,
3. Content studies or original exercises for participants.
In such cases, even though the creator is acting under a contract of assignment, his work may result in a copyrighted work. Therefore, if the contract does not regulate copyright, the rights by default remain with the creator. This may mean that the cultural institution will not be able to fully use the commissioned materials in accordance with its needs.
3. Why include copyright in assignment contracts?
If a work is created under a contract of commission, and the contract does not regulate copyright, by default the rights remain with the creator. This can lead to a situation in which the cultural institution does not have full freedom to use the commissioned materials. Therefore, it is important to clearly specify in the contract:
– Transfer of copyright: The creator transfers full rights to the work to the institution, which allows free use, or
– Grant of license: The creator grants the institution permission to use the work in a specific manner, scope and time.
4. Benefits of including copyright in assignment contracts
With appropriate copyright provisions in assignment contracts, the cultural institution gains:
– Legal certainty: Clearly defined rules for the use of the work minimize the risk of disputes with the creator.
– Freedom of exploitation: The ability to freely use the work according to the needs of the institution.
– Properly spent finances: Assurance that the funds allocated for the creation of the work will bring the expected benefits without additional restrictions.
When cooperating with artists on the basis of commission agreements, cultural institutions should remember to include copyright provisions in them. This will allow full and safe use of the resulting works and safeguard the interests of both parties to the contract.