問1
頻出度★★★
A社では新たなシステムの開発を予定している。そのシステムの著作権をA社に帰属させるために必要なことだけを全て挙げたものはどれか。ここで，著作権に関する特段の契約や取決めはない。 ① A社は開発の全てを委託する。 ② A社は開発を委託した会社と機密保持契約を締結する。 ③ A社の社員と派遣社員によって開発する。
平成25年度 秋期 ITパスポート試験 問1
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 1
Incorrectア
This is the combination of (1) and (2), but neither of them brings ownership to Company A. If all of the development is outsourced as in (1), the party that actually creates the work is the contractor, so as long as there is no special contract, the copyright remains with the contractor. The confidentiality agreement (NDA) in (2) is merely a contract promising not to disclose to outsiders the secret information learned during development; it has nothing to do with who owns the copyright. Furthermore, because (3) is missing, there is no route at all by which Company A becomes the creator.
Incorrectイ
(3) is correct, but (1) is wrong. “Outsourcing all of the development” in (1) means handing the entire act of creation outside the company, and without a special contract the copyright arises with the contractor. In other words, it is not an action necessary for the copyright to belong to Company A; rather, it is an action that obstructs such ownership. Since this question asks for all and only the necessary actions, イ, which includes the unnecessary and counterproductive (1), cannot be chosen.
Incorrectウ
(3) is correct, but (2) is superfluous. The confidentiality agreement in (2) is an arrangement to prevent information leaks; it does not determine the ownership or transfer of copyright. Even if no NDA had been concluded, developing under the arrangement in (3) would still give the copyright to Company A as a work made in the course of employment. Therefore (2) is not a condition necessary for the copyright to belong to Company A, and it is inappropriate as a combination that lists only what is necessary.
- エ
正解 The correct answer is エ, “(3)”. Copyright does not require an application or registration the way a patent does; it arises automatically for the person who created the work at the moment the work is created (the principle of no formalities, i.e. automatic protection). Therefore, as a rule, ownership is determined by who created it, and since this question assumes there is no special contract or agreement concerning copyright, Company A must itself be the party that does the creating in order to obtain the copyright. The key point here is a work made in the course of employment (corporate authorship, Article 15 of the Copyright Act): a work created on the initiative of a corporation by a person engaged in that corporation's business as part of their duties (for a program, publication under the corporation's name is not even required) makes the corporation the author, and the copyright belongs to the corporation, unless a contract or employment rules provide otherwise. If the development is carried out by Company A's own employees and dispatched workers as in (3), the dispatched workers work under the direction and orders of Company A, the host company, and are engaged in Company A's business, so they are treated in the same way as employees engaged in Company A's business, and the copyright in the deliverable belongs to Company A. Thus the only thing necessary is (3), and エ, which lists only (3), is correct.
ここがポイント
- Copyright arises automatically for the creator at the moment the work is created (the principle of no formalities: no procedures such as registration are needed). When development is outsourced, if there is no special contract or agreement about copyright ownership, the copyright belongs to the contractor that actually did the development, not to the client. When the client wants to own it, the transfer or ownership of the copyright must be stated explicitly in the contract.
- Work made in the course of employment (corporate authorship, Article 15 of the Copyright Act): a work created on the initiative of a corporation by a person engaged in its business as part of their duties makes the corporation the author unless otherwise provided. A dispatched worker performs the work under the direction and orders of the host company, so they are treated as a person engaged in the host company's business, and the copyright in the deliverable belongs to the host company (note that this is handled differently from subcontracting or outsourcing). A confidentiality agreement is a contract about the management of secret information and does not affect copyright ownership.
用語