Working as and with Romanian Freelancers: How to Protect Intellectual Property

January 5th, 2021

Freelancing is exponentially growing in the online space with the development of the concept of gig economy, characterized by on-demand service model. One can work either as a full-time freelancer or otherwise aim at making some extra money besides their main career. With only an Internet connected device and relevant expertise in a particular field, such as copywriting, photography, software programming, marketing, graphic design, and other online suitable occupations, a freelancer/ digital nomad can “freely lance” - as the name suggests - their expertise on the market and be their own boss along the way. On the other hand, hiring freelancers can be a great benefit for your business, instead of employing in the traditional manner.

Many freelance projects consist in the client ordering the freelancer to produce a certain work, which requires the use of the freelancer’s capacity to intellectually create: writing, translating, composing music, designing, taking photos, originating architectural projects and so on. Intellectual creations are automatically protected by copyright, which is part of the wider concept of intellectual property (IP). Projects as those mentioned above entail legal matters as to: Who is the copyright holder, since the client ordered the creation of the work, but at the same time the freelancer is the work’s author? or What are each freelancer’s and client’s rights?

What are the legal parameters?

Despite several harmonisation initiatives within the IP field at the European Union (EU) level, the EU copyright framework leaves room for EU Member States to regulate IP contractual measures between authors (in the case at hand, freelancers) and the natural person/ the entity who orders a creation work (clients)[1]. Consequently, both as a freelancer and as the ordering party, you should refer to your contract’s governing law. If this is Romanian law, then Law on Copyright and Neighboring Rights no. 8/1996 shall be applicable, which specifies contractual aspects.

How can you protect your creative content as a freelancer?

Law no. 8/1996 provides that in case of the contract for ordering future works, in the absence of a contrary clause, the patrimonial rights belong to the author. Therefore, if the contract comprises no reference regarding the copyright holder, then the author, i.e. the freelancer, retains all IP rights. It may be apparent that the law automatically protects the author, even in the absence of contractual clauses in this respect – but there is a catch: how could the client use the work they ordered if the author did not agree for such use? So, there is a grey area for works other than photographs and computer programs (see below).

The client may intend to become the copyright holder over the work, which is the most frequent situation. In order to avoid harmful omissions, discrepancies and misunderstandings, you should discuss with your client IP matters and transpose them into a contract, following the legal freedom of choice and also the legal boundaries.

Note: you may assign only patrimonial/ economic IP rights towards the client (for example, the right to prohibit the license of the work), not moral rights (for example, one of the IP moral rights is the right to be recognized as the author of the work).

If you do not assign any IP rights to your client, you will remain the copyright holder over your work, but in the absence of specific contractual clauses, disputes may arise between you and your client. On the contrary, you may assign all or some of your economic IP rights, on an exclusive or non-exclusive basis (i.e. retaining or not the right to use the work).

Does the same apply if you are a freelance photographer or a software developer?

No. If you are a photographer and a client hires you to take photos, the law presumes that the client automatically becomes the copyright holder over the respective photos for a 3 years’ time period. Only if expressly provided in the contract, the photographer retains the economic rights. If you are a software developer, the law presumes that the client who hired you to create the software automatically becomes the copyright holder over that software (in this case, there is no legal duration for the transfer).

Undoubtedly, irrespective of the project’s type, it is always advisable to clearly state intellectual property matters within a legally binding and enforceable contract, in order to ensure both freelancer’s and client’s rights.

How can you benefit from copyright as a client within a freelance project?

In light of the above, as a client, you do not automatically become the copyright holder when a freelancer creates a work for your benefit (other than photographs and computer programs - see above). In order to become the copyright holder over the work you intend to order, but also to be legally protected when the law presumes you are the copyright holder, you must firstly sign a bespoke contract with the freelancer, covering both your requirements (such as the terms of the task/ scope of work, term of delivery, and term of acceptance of the work), and also copyright assignment clauses.

In a nutshell, the law offers a degree of freedom for the parties to contractually agree upon copyright matters. Thus, any freelance project should be based on a specific contract, being in the both parties’ best interest to expressly establish the IP protection clauses, so as to avoid uncertainties and future disputes between the parties.

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