Separate management of service works and service inventions

Notwithstanding the fact that service works and service inventions fall within the scope of intellectual property (IP), they each have their own specific features in terms of definition, judgment criteria, vesting of rights, author and inventor rights, etc. Enterprises need to manage them separately on the basis of an understanding and clarification of their basic content in the various arrangements for IP transactions, licensing and commercial use, as well as employment contracts that have a connection.

The legal provisions on service works are mainly found in the Copyright Law, whereas those on service inventions are in the Patent Law. This column examines the relevant provisions of the current laws.

Definitions and judgment criteria

A service work means “a work created by a citizen in order to accomplish a task assigned to him or her by a legal person or other organization”. For example, a film script, film or television series, novel, artwork, video work, software, etc., created by an employee as assigned by his or her employer all fall within this category. Service works are further divided into “general service works” and “special service works”. The latter mainly refer to project design drawings, product design drawings, maps, computer software, etc., created using the legal person’s (or other organization’s) material and technical resources, and in respect of which the legal person (or other organization) bears liability, or another work in which a legal person (or other organization) enjoys the copyrights as specified in laws or administrative regulations, or as specified in a contract. A service invention or creation means “an invention or creation completed in executing a task of one’s employer or mainly by using the material and technical resources of one’s employer”.

Han Yufeng and Lu Lei are counsel at Rui Bai Law Firm