How Can a Departing Employee Misappropriate Their Own Creative Outputs?

Partially due to the widespread use of employee confidentiality and invention assignment agreements, employers routinely take ownership of employee creative outputs and use trade secrets law to enforce those rights post-employment. This Article proposes that, with respect to employee creative outputs, the current status of trade secrets law is inconsistent with the modern workplace, including as significantly altered, maybe permanently, by the COVID-19 pandemic. Accordingly, the goal of this Article is to establish a mode of recognizing employee rights in their own creative outputs through a modification to the existing general skills and knowledge exclusion to explicitly recognize an employee\u27s own creative outputs as subject to the exclusion. The proposal, if adopted, would provide employees with increased autonomy over their own creative outputs and greater ability to chart their own careers in their chosen field without fear of trade secrets misappropriation claims from former employers

TORT MADE FOR HIRE - RECONSIDERING THE CCNV CASE

It has been more than 15 years since the U.S. Supreme Court, in its landmark decision in Community for Creative Non- Violence v. Reid adopted the common law of agency for the interpretation of the term employee in the context of work made for hire . Since then, despite some criticism, the agency test has become the norm. This paper argues the Supreme Court\u27s inclination to apply the work for hire doctrine through agency law is misguided. The agency test, which is based on tort law principles, is clearly anomalous in the context of copyright law, which differs significantly from tort law in its underlying rationales. This paper further argues that, lacking clear guidelines, the workfor hire case law has failed in its objective to achieve consistency and certainty. My proposal is that the work made for hire doctrine should be decided from the vantage point of copyright law. The test should focus on incentives to create on the one hand and public access to created works on the other. These are the goals of copyright law as stated in the Constitution. Thus, the test should re-interpret the term employee in a manner that complies with the needs of copyright law. Most importantly, employee should be interpreted to give the first entitlement to the party most apt to achieve the goals of the Constitution: Instead of using agency test factors such as employee benefits and tax treatment, the courts should consider factors such as the parties\u27 relative incentive to create new works, public accessibility, transaction costs, and the parties relative ability and motivation to disseminate works to the public. The partnership of individual creativity with the employer\u27s resources yields a significant engine for creative production in society. Revising the work made for hire test would re-align this important issue with the rest of intellectual property law

“For a Mess of Pottage”: Incentivizing Creative Employees Toward Improved Competitiveness

[Excerpt] Managing employees’ talent, promoting innovation, and improving productivity are critical challenges for organizations. Creative employees and the innovative products they develop can make a tremendous contribution to an organization’s success and competitive position. While employed inventors play an extremely important role in the production of an organization’s technological innovations, they are often either unrewarded or insufficiently rewarded for their achievements. The analysis and recommendations in this study present the argument that, contrary to common workplace practice, employers should consider a more employee-centric approach to intellectual property (“IP”) rights and other benefits. This will foster innovation within the workplace and encourage the development of successful IP products. In particular, employers should reconsider the current rigid practice of requiring employees to transfer all future product IP rights to the firm without significant compensation as well as the overall tendency to avoid attributing IP products to employed inventors. The need for such reform will prove critical in the digital era, especially in times of economic slowdown

Small Business and Copyright Ownership

This article attempts to facilitate the recognition of situations involving copyright and the appropriate arrangements regarding ownership of the right. Part II briefly outlines some copyright basics, including the varieties of copyrightable subject matter under the Copyright Act of 1976. Part III describes copyright ownership, focusing on the kinds of transactions most likely to take place in the context of small business, including the “work for hire” doctrine. Armed with these fundamentals, the small-business lawyer may find that copyright litigation will rarely become necessary

Copyrights in Computer-Generated Works: Whom, if Anyone, Do We Reward?

Computer-generated works raise grave authorship concerns under U.S. copyright law, with arguments in favor of allocating copyrights to the computer user, programmer, the computer itself, or some combination therein. The author discusses the issues and paradoxes inherent in these choices, and assesses the nature of mathematical graphical processes in light of the idea/expression dichotomy

Ownership of Employment Creations

Copyright is in every original literary, dramatic, musical and artistic work, and mechanical contrivance. Many of these works are created within the course of employment. Under the present law, copyright in these employment creations vest in employers. This paper examines employer and employee rights in relation to copyright works and possible alternatives to the current scheme. The author then concludes as to whether employers or employees should own copyright in works created in the course of employment