Theoretical and practical aspects of legal qualification of work made for hire

According to Ukrainian law, work made for hire is work created in connection with the performance of duties under an employment agreement (contract). Qualification of work as a work made for hire is based on three criteria.Firstly, the creation of such a work is always conditioned by the labor relationship between the author and the employer. However, it does not matter whether the author is a full-time employee or a part-time employee.Secondly, the creation of a certain type of work must fall within the scope of the employee’s labor duties. Despite the fact that the provisions of the current legislation link a work made for hire to the fulfillment of a labor contract, this should not be interpreted as meaning that the obligation to create a work made for hire should be provided for exclusively by a labor contract. The obligation to create works made for hire may also be documented in the employee’s job description. In addition, a labor contract may provide for this obligation in general terms, and an assignment to create specific works may be given byorder, job assignment, or other acts of the employer.Thirdly, the creation of work must be the result of the employee’s performance of their labor duties. An employer cannot claim to acquire copyright to works created by an employee on their own initiative even if the creation of works of the same type is the basis of the employee’s labor function. The law makes it quite clear that work made for hire is only work created in connection with the performance of a labor contract, and not any work that can in principle be created by an employee; there must be a kind of cause-and-effect relationship where the result of the activity in the form of a created work is directly determined by the performance of the employee’s labor duty.There are no other conditions that must be satisfied in order to recognize a work as a work made for hire. In particular, it does not matter whether the employer provides the employee with certain financial, material or other assistance in creating a work.The law also does not provide that the material, technical and financial resources of the employer must be used when creating a work made for hire. Therefore, work made for hire must meet only the three criteria mentioned above without any additional conditions or requirements.