Romania does not recognise a fully equivalent “work made for hire” concept in the common-law sense. Instead, the ownership of copyright in employee-created works is governed by Law no. 8/1996 on copyright and neighbouring rights, which draws a fundamental distinction between the general regime applicable to employee-created works and the special regime applicable to computer programs.
The general regime for employee-created works
Under Article 45 of Law no. 8/1996, and in the absence of a contractual clause to the contrary, the economic rights in works created by employees in the performance of the duties set out in their individual employment contract belong to the employee-author.
This default position is, however, qualified by two important statutory features that operate even where no assignment has been agreed:
- The employee-author may authorise the use of the work by third parties only with the employer’s consent, and against compensation to the employer for its contribution to the costs of creation.
- The employer may use the work within the scope of its object of activity without any authorisation from the employee-author.
Where the parties do agree to assign the economic rights to the employer, the assignment clause should expressly state the term of the assignment.
If no term is specified, the statutory default is three years from the date of delivery of the work.
Upon expiry of that term, and absent a contrary clause, the economic rights revert to the employee-author, although the employer remains entitled to claim a reasonable share of the revenue derived from the exploitation of the work in order to recover its creation costs.
In all cases, the author retains the exclusive right to use the work as part of their overall body of creative work.
The special regime for computer programs
Computer programs benefit from a rule that is markedly more favourable to the employer. Under Article 75 of Law no. 8/1996, and in the absence of a clause to the contrary, the economic rights in computer programs created by one or more employees in the exercise of their employment duties, or following the instructions of the employer, belong to the employer.
Two points should be emphasised:
- First, the rule attaches not only to code produced strictly within formal job duties but also to programs created “following the instructions of the employer,” which broadens the employer’s default position where development is directed rather than expressly mandated in the contract.
- Second, because the rule operates only “in the absence of a clause to the contrary,” it can be displaced by agreement—so parties intending a different allocation (for example, in favour of an end-client or an affiliate) must provide for it expressly.
Licensing presumptions under Article 76 of Law no. 8/1996
Article 76 governs the use, as opposed to the ownership, of computer programs and introduces default presumptions that are equally important in an outsourcing model. In the absence of a clause to the contrary, a contract for the use of a computer program is presumed to grant the user only a non-exclusive right of use, and the user may not transfer that right of use to any other person. Critically, Article 76(2) confirms that the assignment of the right to use a computer program does not entail a transfer of the copyright in that program.
