問4
頻出度★★★
コンピュータプログラムに関する著作権の説明として, 最も適切なものはどれか。
平成23年度 秋期 ITパスポート試験 問4
ストラテジ系法務 › 知的財産権
This question's explanation and your answers so far.
解説
問 4
Incorrectア
When you make creative modifications to existing software, the result becomes a derivative work. The author of a derivative work is the person who made the modifications, and the copyright in the modified portion arises for that modifier. The rights of the original author do not disappear — the author of the original work continues to hold the rights of an original author over the use of the derivative work — but that does not mean the copyright, including the modified portion, belongs to the original author alone. A freeware license that permits modification grants a condition of use saying that modification is allowed; it is not an arrangement that transfers to the original author the copyright in the creative portion the modifier produced.
Incorrectイ
When development is contracted out to an outside software house, the people who actually create the program are the employees of the contractor. Under the rule on works made in the course of duties, therefore, the copyright first arises for the contractor corporation. Even though the commissioning company bears the development cost, that alone does not make it the copyright holder. If the copyright is to belong to the commissioning company, the contract must include a clause on assignment or ownership of copyright (a different stipulation); without such a stipulation it does not pass to the commissioning company. Correcting the misunderstanding that the side paying the money automatically acquires the rights is the point of this choice.
Incorrectウ
In worker dispatch (temporary staffing), the dispatched employee works under the direction and orders of the client company and engages in the client's business. The requirements for a work made in the course of duties — “at the initiative of the corporation” and “created in the course of duties by a person engaged in its work” — are satisfied with respect to the client company that actually gives the orders and has the work carried out, so the author is the client company as the corporation. The fact that the employment contract is with the dispatching company is a separate matter from deciding who owns the copyright; the test is who gives the direction and has the program created as part of the job. This statement, which says the copyright belongs to the dispatching company, is therefore wrong.
- エ
正解 As a rule, copyright arises for the individual (a natural person) who actually created the work. The exception is the work made in the course of duties (corporate authorship): the Copyright Act provides that, when certain requirements are met, the corporation itself is treated as the author. For a program work, the corporation becomes the author when all four of the following hold: (1) it is created at the initiative of the corporation, (2) it is created by a person engaged in the work of that corporation (an employee), (3) it is created in the course of duties, and (4) the contract or work rules in force at the time of creation contain no different stipulation. Choice エ states exactly these four requirements, so it matches the provision perfectly. Note that for ordinary works other than programs, “being made public under the name of the corporation” is also required, but many programs are used only inside the company and are never made public, so this requirement of publication under the corporate name is not applied to them. Therefore the most appropriate explanation is エ.
ここがポイント
- Requirements for a work made in the course of duties (corporate authorship): if it is created at the initiative of the corporation, by a person engaged in the work of that corporation, in the course of duties, and the contract or work rules at the time of creation contain no different stipulation, then the corporation becomes the author (Copyright Act, Article 15). Unlike ordinary works, a program work does not require being made public under the name of the corporation.
- How to think about who owns a copyright: as a rule the right arises for the side that actually created the work — the contractor in contracted development, the client company that gives the orders in dispatch work, and the modifier in the case of modification. Merely having borne the cost, or being the original author, does not change who owns it. Changing the ownership requires a different stipulation made by contract.
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