Working With Freelancers On Platforms – Who Owns The Copyright? – Intellectual Property



Switzerland:

Working With Freelancers On Platforms – Who Owns The Copyright?


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There are now many on-line platforms like Upwork and Fiverr
where you can hire freelancers for a variety of different services.
At Upwork amongst other things you can find web, mobile and
software developers, as well as freelancers offering design,
creative, data science, analytics, engineering, and architecture
services. At Fiverr you can get voice over, logo design, social
media, video and animation and other creative services. Such
platforms make it easy to find and hire talent. However, in hiring
such talent you need to clarify contractually who owns the
intellectual property (copyright) in the work product that is
created by the freelancer.

If you pay then you own, right? Wrong! Well under UK, EU and
Swiss law the author is the first owner of the copyright. This
means the person who creates the work owns the copyright i.e. the
freelancer. Freelancers are not your employees, so copyright is not
transferred to the client as occurs in an employment situation.
Copyright can however be transferred through an assignment
(transfer) in writing. The best practice is to include this in the
service contract between the customer and the freelancer. However,
if the contract is silent on who owns the copyright then it will
remain in most cases with the freelancer. The law is very reluctant
to imply any missing copyright assignment or licensing terms into a
contract unless there are particular special circumstances.

So, what do the platforms say about ownership and transfer of
intellectual property rights?

Upwork says it is up to the freelancer and the customer to agree
terms in a service contract. Upwork does however provide an
‘optional’ services contract for its customers and
freelancers. While it is ‘optional’ Upwork’s terms of
service for the platform says that it applies automatically in the
event that the customer and freelancer have not agreed other terms.
Under the Optional Terms new intellectual property is assigned
(transferred) to the customer by the freelancer and the customer
gets a non-exclusive right to use the background intellectual
property.

On Fiverr their terms of service govern the ownership/licensing
of intellectual property rights. The customer owns all intellectual
property rights including copyright in the work product (which is
called a ‘Gig’ on Fiverr) unless otherwise stated by the
freelancer. For commercial use, a freelancer will often require
that the customer purchases a commercial use license for specified
business and commercial purposes. For certain types of works e.g.
voice overs, additional rights must be purchased to broadcast the
work or distribute it through paid marketing channels e.g.
commercial TV, radio, internet radio.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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