Many job positions or contracted services involve performing tasks of a creative nature, such as developing graphic materials or writing source code. In such cases, an entrepreneur, acting as an employer or a commissioning party, should not only ensure precise regulation of copyright acquisition for the resulting works but also analyze the relevant tax regulations.
How to determine whether the result of work qualifies as a “work” under copyright law?
A “work” is defined as “any manifestation of creative activity of an individual nature, established in any form, regardless of its value, intended use, or manner of expression” (Article 1(1) of the Polish Act on Copyright and Related Rights of February 4, 1994). The Act lists example types of works, including photographic, literary, journalistic, scientific, cartographic works, as well as computer programs and architectural designs.
Therefore, to be protected under copyright law, the result must, above all, be a human creation. In an era of widespread use of AI-based tools, doubts may arise as to whether a particular outcome genuinely meets this criterion. What matters most is that a human had a real and decisive influence on the final form of the work.
The human activity must be creative – it must involve an element of originality, and the result cannot be merely a reproduction. It is about a degree of “novelty” from the author’s perspective.
The resulting work should also exhibit an individual character. This condition has been clarified through case law: it is important that the work is unique, does not replicate any prior creation, and stands out – at least to some extent – compared to existing intellectual products, from the perspective of an average observer (see the judgment of the Court of Appeal in Warsaw dated 24.11.2022, V ACa 519/21, LEX No. 3450528).
However, in some cases, it is not immediately clear whether the result of work meets these criteria. Therefore, in case of doubt, we encourage you to consult our legal department, which will help determine whether a given outcome qualifies as a work under copyright law.
Niekiedy jednak ocena, czy rezultat pracy faktycznie spełnia te kryteria, nie jest oczywista. Dlatego w razie wątpliwości zachęcamy do konsultacji z naszym działem prawnym, który pomoże prawidłowo ustalić, czy dany efekt można zakwalifikować jako utwór w rozumieniu prawa autorskiego.
Employment relationship and employee creativity
Employees often become authors of works within the meaning of copyright law while performing their duties as defined in their employment contracts.
This is directly regulated by Article 12 of the Copyright Act, which states that, unless otherwise agreed in the employment contract, the employer acquires the proprietary copyrights to an employee-created work upon acceptance of the work.
It is essential that the work is created as a result of the employee’s job duties, i.e., tasks assigned to a given position or instructed by the employer, performed for compensation and under the employer’s direction.
EXAMPLE:
A software developer employed by an IT company under an employment contract developed an IT system used and licensed by the employer to banks. After the employment relationship ended, she demanded additional royalties from license sales, claiming she had the right as the author. However, since the employment contract did not stipulate otherwise, the proprietary copyrights to the program belonged to the employer, and the salary specified in the agreement covered the transfer of these rights.
It is also worth emphasizing that merely using the employer’s tools (e.g., a computer) or creating a work at the workplace is not sufficient if the work was created outside the scope of duties defined by the employment relationship.
An employment contract should precisely regulate copyright-related matters. This particularly includes specifying what types of works may be created within the scope of employment duties, the moment of transfer of proprietary copyrights to the employer, and the fields of exploitation on which the works will be used. It is equally important to clearly define the rules of remuneration for the transfer of copyrights.
A lack of precise provisions in this respect may lead to disputes over the scope of acquired rights, the possibility of further commercial use of the work, or the rules of its modification.
Given the complexity of this area, it is advisable to consult a lawyer when drafting such provisions – practice shows that many clauses introduced independently by employers are later found invalid in court proceedings, and thus unenforceable.
Copyrights under mandate and contract for specific work
The legal situation regarding copyrights differs in the case of a mandate contract compared to an employment relationship. A contractor performs specific tasks for the commissioning party, but the copyrights to the outcome of that work are not automatically transferred. If the result is considered a work, it is necessary to explicitly regulate the transfer of rights or the granting of a license – otherwise, the contractor remains the owner of the rights.
A contract for specific work involves achieving a specific result – often a work under copyright law. However, as with mandate contracts, to best protect the commissioning party’s interests, it is recommended to sign a contract for the transfer of proprietary copyrights. Although some legal interpretations suggest that, in the case of a contract for specific work, the right to use the work may be implied, the most legally secure approach is to explicitly regulate the transfer of rights or the granting of a license.
It is important to remember that both a copyright transfer agreement and an exclusive license agreement must be made in writing to be valid.
Tax settlements of works
Correct classification of the results of activities performed by employees, contractors, or creators under a contract for specific work is crucial from a tax perspective. The entrepreneur – acting as an employer, principal, or client – is responsible for correctly calculating and withholding income tax on the remuneration paid.
A creator who transfers proprietary copyrights to another entity or grants a license to use a work is entitled to apply a flat-rate 50% tax-deductible cost. However, this preference is only available if the result qualifies as a “work” under copyright law. That is why it is critical to determine whether the outcome is indeed creative and individual – only then can the 50% cost of income deduction be applied.
Additionally, to apply the 50% deduction, the part of the remuneration corresponding to the royalty for the transfer of copyrights to a specific work must be separately stated (see the ruling of 29.06.2017 by the Director of the National Tax Information Office, ref. 0113-KDIPT2-3.4011.101.2017.1.GG).
It is also important to note that the 50% deductible costs are subject to an annual limit (currently PLN 120,000).
Properly regulating creative work and tax settlements minimizes the risk of disputes and financial consequences. If needed, we provide comprehensive support – from case-by-case analysis to contract preparation and tax advisory.
Prawidłowe uregulowanie kwestii twórczości i rozliczeń podatkowych minimalizuje ryzyko sporów i negatywnych konsekwencji finansowych. W razie potrzeby zapewniamy kompleksowe wsparcie – od analizy danego przypadku, po przygotowanie umów i doradztwo podatkowe.
