2017.3.16
Sean Liu
The Intellectual Property Court rendered the 105-Min-Zhu-Shang-Keng-(1)-2 Civil Decision of March 16, 2017 (hereinafter, the “Decision”), holding that copyright ownership involving the consignment or employment relationship between a company and its employees should be subject to substantive determination.
According to the facts underlying this Decision, Company A requested Company B to offer a quotation and product specification information for the purpose of price quotation. Company B provided the drawing set at issue created by Employee C to Company A along with a price quotation. Later, Company B filed a complaint to seek damages on the ground that Company A had infringed Company B’s copyright right by slightly altering the drawing set at issue for inclusion in attachments to an agreement with another company.
According to the Decision, Article 11 of the Copyright Law provides that where a work is completed by an employee within the scope of employment, such employee is the author of the work; provided, where an agreement stipulates that the employer is the author, such agreement shall govern. Whether the relationship between a company and its employees is employment or consignment should still be determined by the substantive relationship of the contract and should not be directly presumed by the job titles of the employees of the company. It was further pointed out that C, who worked as a deputy manager in charge of design at Company B, testified that the drawing set at issue was custom-made, and that usually the size of the structure of the entire machine was not designed until a customer placed an order and was designed based on the size required by such customer. Therefore, the business owner would be more experienced and it was necessary to discuss with the owner of Company B at the time of design. This shows that drawing set at issue was created based on the needs of the customer (i.e., Company B in this case), and that the work details also should be discussed with Company B’s legal representative. The designer exercised no independent discretion or decision-making power. Therefore, this was certainly employment relationship. Although the author of drawing set at issue was C, still the employer, i.e., Company B, should enjoy the copyright to the drawing set at issue.