ADL #75: Who owns the intellectual property rights?
employer or employee?
Today we're diving into something that catches most employers off guard and usually triggers that classic "Wait, what?" moment when I mention it to them.
Here's the surprise: even when you employ someone, you don't automatically own the intellectual property rights over what they create during work hours. That's right – in Romania, owning the rights to your employees' creations is the exception, not the rule, unless your employment contract specifically says otherwise.
Let me break down what we're talking about when we say "patrimonial rights": a) reproduction of the work; b) distribution of the work; c) import for the purpose of marketing on the domestic market of copies made, with the consent of the author, from the work; d) rental of the work; e) lending of the work; f) public communication, directly or indirectly, of the work, by any means, including by making the work available to the public, so that it can be accessed in any place and at any time individually chosen by the public; g) broadcasting of the work; h) cable retransmission of the work; i) creation of derivative works. j) retransmission of the work.
Romanian law is crystal clear on this: your employee owns all these rights over their creations, unless you both agree otherwise in the employment contract. If you want to change this arrangement, you need a specific clause that clearly states the period during which the employer gets these rights. Miss this detail? The default period is just three years. Even after this period expires, you have the right to ask the employee for a reasonable share of any income they make from using their work – this helps compensate you for the costs you covered while they created it as part of their job.
But it's not a complete free-for-all. The law does give employers some protection. Even when the employee keeps ownership of their creations, they can't authorize someone else to use the work without your consent and without compensating you for your contribution to the creation costs.
Now, are there exceptions to this rule?
Absolutely, and here's one that's huge for the tech world: computer programs created by employees while doing their job or following their employer's instructions automatically belong to the employer, unless the contract says otherwise. So if you're running an IT company, the code your developers write during work hours is yours by default – but only if they're actual employees with employment contracts. This doesn't apply to contractors or freelancers working under service agreements, even if they're fully integrated into your team. For those situations, you absolutely need that cessation clause in writing.
Another key exception involves photographers. When a photographer creates work under an employment contract or an order contract, the law assumes the employer or client owns the patrimonial rights for three years, unless the contract states otherwise. Here's what makes this tricky: it covers both employment and order contracts, it can be changed by written agreement, and it's only presumed to last three years. So if you're the employer and want longer protection, spell it out in the contract. If you're the photographer and want to keep your rights or limit the cessation period, you need to make that clear upfront.
As you can see, there's rarely a simple black-and-white answer here. That dreaded "it depends" response that no entrepreneur wants to hear? It's actually the most accurate one. Every situation is unique, so don't assume you know the rules just because you heard how someone else handled it.
Need guidance on intellectual property and authorship issues? Don't hesitate to reach out.
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Photo by Tim Hüfner on Unsplash