Rights to Service-Related Works and Inventions in Belarus
1) Who owns the rights to service-related works and service inventions created by an employee in the course of their employment?
The author of a work made for hire (service inventions) is the employee who created the IP object in the course of performing their employment duties or a work assignment given by the employer.
The employee retains their moral rights, including the right of authorship, the right to be named, the right to the integrity of the work, the right of disclosure and the right of withdrawal. From July 2027, where the employer assigns the exclusive right to a work-for-hire invention, the employee is to have a right of first refusal over third parties to acquire that right.
The exclusive right to a work-for-hire IP object, together with the right to obtain a patent, generally belongs to the employer, unless otherwise provided by contract between the employer and the employee. The employer is entitled to use such an object by any means not prohibited by law, and to authorise or prohibit its use by third parties.
2) What criteria determine whether a work or invention qualifies as service-related?
A work (invention) is deemed to be made for hire where any one of the following conditions is met:
1. it was created by the employee in the course of performing duties set out in the employment contract;
2. it was created by the employee in the course of carrying out a specific assignment from the employer;
3. it was created using the employer's know-how or resources (applicable to work-for-hire inventions only).
3) Which rights automatically vest in the employer and which require a separate assignment?
The exclusive right and other rights provided for by law arise in favour of the employer automatically. The employer is entitled to decide on the disclosure of the IP object, to use the work under its own name or without indicating the author's name, and to make amendments, abridgements and additions to it in the cases established by law.
The employer and the employee may enter into a contract determining the amount, procedure and terms for payment of authors' remuneration for the creation and use of the work-for-hire work (invention). Termination of the employment relationship between the employee and the employer does not terminate the author's right to receive authors' remuneration, nor does it affect the moral rights belonging to the author.
4) Is an employer required to compensate an employee for a service invention or service-related work?
In respect of work-for-hire industrial property objects, the legislation provides for mandatory payment of remuneration for their creation. Such remuneration is payable where the employer:
1. has obtained a patent (certificate);
2. has transferred the right to obtain a patent to another person;
3. has decided to protect the work-for-hire IP object under a know-how (trade secret) regime.
The legislation establishes a minimum amount of remuneration. For the creation of a work-for-hire invention, this amounts to 12,5 base units (approximately EUR 170,00). If, for reasons within its control, the employer fails to obtain a patent for the invention, the employee is entitled to claim compensation. Accordingly, the employer is required to enter into a contract with the employee under which the remuneration (compensation) is to be paid.
Remuneration for the use of a work-for-hire invention is payable upon its commercial use, including the manufacture and sale of products using the invention, the incorporation of the invention into the employer's own production, the assignment of the exclusive right, the granting of a right of use under a licence contract, or the transfer of know-how.
As a rule, no remuneration is payable for the creation of a work-for-hire work, unless otherwise provided by contract between the employer and the employee. From July 2027, state scientific organisations are required to pay authors of a work-for-hire work remuneration for 40% of the sum received under such agreements, less mandatory budget payments.
5) What documents should be put in place to establish and protect an employer’s rights to service-related works and service inventions? What intellectual property provisions should be included in an employment agreement?
To organise the work involved in creating and using work-for-hire IP objects, it is recommended that a separate policy on work-for-hire IP objects be drawn up. This should set out (1) the procedure for preparing work assignments, (2) documenting the results of the work, (3) notifying the employer of the creation of work-for-hire IP objects, (4) securing the company's rights to such objects, (5) recording them, using them and paying authors' remuneration. At the same time, it is advisable to prepare standard-form documents, including templates for work assignments, notifications and reports on the creation of an IP object, a register of work-for-hire IP objects, as well as model terms for employment contracts and job descriptions.
Where work-for-hire know-how is created within the company, a trade secret regime must be put in place. To this end, it is recommended that a trade secrets policy be adopted, a list of information constituting a trade secret be defined, the range of employees with access to such information be established, and persons responsible for maintaining confidentiality be appointed. It is advisable to set out the duty of confidentiality in employment contracts and NDA.
When drawing up an employment contract, it is recommended that provision be made for the employee's duty to create work-for-hire IP objects where this corresponds to their job function, that the allocation of rights to work-for-hire IP objects be determined, that the employee's duty to notify the employer of their creation be established, that the employee's duty to assist in securing legal protection be provided for, and that the terms and procedure for payment of remuneration be defined.
6) How are rights to service-related works and service inventions allocated within multinational corporate groups and in cross-border employment relationships?
Rights to work-for-hire works (service inventions) are allocated between the employee and the employer. Where a work-for-hire IP object is intended to be used by third parties, including a parent or subsidiary company or another company within the group, such use must be formalised by way of a licence contract, a know-how transfer contract, a franchise contract, etc.
7) What risks arise if an employment agreement does not contain provisions governing service-related works and service inventions?
The absence of provisions on work-for-hire IP objects in the employment contract does not create legal risks for either the employee or the employer. In such cases, the following provisions apply: the employee is recognised as the author, and the employer as the rightholder. Accordingly, no authors' remuneration is payable for a work-for-hire work, whereas a minimum level of remuneration is prescribed for a work-for-hire invention.
For an IP object to be recognised as work-for-hire, it must, in particular, be evident from the employment contract, job description or other documents that it was created within the scope of the employee's job duties.
8) Can an employee claim rights to a work or invention created outside working hours using the employer’s resources or while working remotely?
An employee may claim the exclusive right to IP objects created outside working hours or while working remotely, as long as the result doesn't count as work-for-hire. Simply creating something away from the office, outside working hours, or in personal time doesn't, on its own, decide the legal status of the IP object. What matters is how it was created and whether it's connected to the employee's job.
To classify an IP-object as work-for-hire, the following are typically assessed:
1. Work-for-hire work: whether it was created within the scope of the employee's job duties or on the employer's instructions;
2. Work-for-hire invention: in addition, whether it relates to the employer's field of activity and was created using the employer's know-how and (or) resources. This may include, in particular, the employer's trade secrets, materials, equipment and other resources.
9) How can an employer protect its rights when the creator of a service-related work or invention leaves the company?
Protection of the employer's rights to work-for-hire works (inventions) takes place in two stages:
- during the employment relationship with the employee,
- after its termination.
During the employment relationship, the employer's key task is to document, in advance, the fact that work-for-hire IP objects have been created and that the rights to them belong to the employer.
After the employment relationship has ended, the employer should keep watch for any instances of the employee infringing the employer's exclusive right to work-for-hire IP objects.
Where such an infringement is discovered, the employer may pursue one of the following remedies:
1. sending the employee a claim demanding that the unlawful use of the work-for-hire IP object cease and that damages be paid or compensation recovered;
2. filing a report of an administrative offence under Article 10.15 (2) of the Code of Administrative Offences;
3. filing a complaint alleging a breach of antitrust legislation in respect of unfair competition;
4. filing a claim in court.
10) How does the use of artificial intelligence (AI) systems affect the legal treatment of service-related works and service inventions created by employees?
The use of AI systems may affect whether a result created by an employee is recognised as a work at all, since this raises the question of whether it possesses the creative character required for legal protection. This question can ultimately only be resolved by the Supreme Court of the Republic of Belarus in the course of court proceedings.
If a court finds that a result was created by an AI system without sufficient human input, neither the employee nor the employer will be able to monetise that result as a copyright object, since no exclusive right will exist. In that case, the employer retains an alternative route: registering the result as know-how, provided the statutory requirements for such protection are met.
Outside of court proceedings, the use of AI systems does not, in itself, affect the ability to monetise an employee's result as an IP object. Under the law, any work is presumed by default to be the product of creative activity unless proven otherwise. This presumption can only be rebutted through court proceedings.
Author: Anton Mazol
