The Scope of Employment Test Under the Work-Made-for-Hire Doctrine Revisited: How COVID-19, Remote Working, and the Restatement (Third) of Agency Could Change It, 20 UIC Rev. Intell. Prop. L. 232 (2021) (original) (raw)
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RePEc: Research Papers in Economics, 2018
The world of work will fundamentally change in the coming one to two decades. At the initiative of the Hans Böckler Foundation, the "Work of the Future" commission investigated the challenges and perspectives for structuring the world of work. The commission published its final report, "Let's transform Work!", in summer 2017 to inform debates in politics, unions and businesses. This working paper is part of a series of papers written by members of the "Work of the Future" commission in parallel to the commission's work. This publication was first published in German as "Der Arbeitnehmerbegriff-aus arbeitspolitischer Perspektive". The text has been revised by the author for translation.
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The growth of the gig economy sector presents challenges for employment law yers. Firms such as Uber label their workforce as ‘independent contractors’, meaning many in the gig economy often lie outside the parameters of employment protection laws. Fortunat ely, recent cases show that courts are not prevented by the mere label of ‘ independent contractor’ from holding those working in the gig economy as workers. However, as this paper argues, it is not satisfactory to rely solely on litigation to enhance right s at work in the gig economy. The Taylor Review 2017 suggests that updating statutory definitions of personal scope is needed to address the issue. Many commentators and think tanks have labelled this proposal as too pragmatic and argue that a uniform test of employment is preferable. The main thesis of this paper is that pragmat ic change, building on the progress made in case law, would be more effective. This is because the retention of an intermediary category of worker, o...
Non-Standard Forms of Employment: Regulating Digital Labor Platforms
Non-Standard Forms of Employment: Regulating Digital Labor Platforms, 2022
The novel coronavirus (COVID-19) pandemic has confronted the Philippines with significant macroeconomic destabilization in 2020. The International Labour Organization (2021) concluded that the COVID-19 disrupted the labor market when the lockdown was imposed in Metro Manila that paralyzed the livelihood of millions of Filipinos from various sectors in both standard and non-standard forms of employment. Financial markets, corporate offices, businesses, and events that constitute the standard form of employment shut down their operations as measures to limit the spread of the virus resulting in a record low-3.1% in World Economic Growth (Ozili and Arun, 2020; ILO 2021; IMF, 2021). On the contrary, the COVID-19 is perceived to contribute to the growth in the gig economy since freelancers are already working from home before the lockdown (Struckell et al., 2021). The Philippines' gig economy had been thriving since before the pandemic due to the motivation brought by increased flexibility, the opportunity to determine their hours of work, preferred rates, and not have supervisors (Mia, 2020; Curiae, 2021).
Tort Made for HireReconsidering the CCNV Case
Yale JL & Tech., 2008
It has been more than 15 years since the U.S. Supreme Court, in its landmark decision in Community for Creative Non-Violence v. Reid adopted the common law of agency for the interpretation of the term "employee" in the context of "work made for hire ". Since then, despite some criticism, the agency test has become the norm. This paper argues the Supreme Court's inclination to apply the work for hire doctrine through agency law is misguided. The agency test, which is based on tort law principles, is clearly anomalous in the context of copyright law, which differs significantly from tort law in its underlying rationales. This paper further argues that, lacking clear guidelines, the workfor hire case law has failed in its objective to achieve consistency and certainty. My proposal is that the "work made for hire" doctrine should be decided from the vantage point of copyright law. The test should focus on incentives to create on the one hand and public access to created works on the other. These are the goals of copyright law as stated in the Constitution. Thus, the test should re-interpret the term "employee" in a manner that complies with the needs of copyright law. Most importantly, "employee" should be interpreted to give the first entitlement to the party most apt to achieve the goals of the Constitution: Instead of using agency test factors such as employee benefits and tax treatment, the courts should consider factors such as the parties' relative incentive to create new works, public accessibility, transaction costs, and the parties relative ability and motivation to disseminate works to the public. The partnership of individual creativity with the employer's resources yields a significant engine for creative production in society. Revising the "work made for hire" test
COVID-19 AND UNDECLARED WORK: IMPACTS, CHALLENGES AND POLICY RESPONSES
Regional Cooperation Council, 2020
The aim of this study is to evaluate the impacts of the coronavirus pandemic on undeclared work in the Western Balkans and the emergent challenges for state authorities, and policy responses, in the immediate and longer-term in relation to tackling undeclared work. To achieve this, section 2 briefly evaluates COVID-19s impact on undeclared work in the Western Balkans. This examines its impacts on different types of undeclared enterprise and worker and the size and characteristics of those affected in the six Western Balkan economies using data from the Employment and Social Affairs Platform (ESAP1) economy reports on undeclared work and the 2020 Balkan Barometer. Section 3 then outlines the challenges state authorities in the Western Balkans and beyond witnessed in adapting to confinement in terms of on the one hand, providing protection for staff and on the other hand, their adoption of new working methods and practices. To do this, information provided at the 1st Plenary meeting of the Western Balkan Network Tackling Undeclared Work as well as from other European enforcement authorities is used. Section 4 turns to two important immediate challenges facing Western Balkan economies. On the one hand, there is the potential abuse of the short-term financial support schemes in Western Balkan economies, especially in relation to undeclared work, and on the other hand, the issue of protecting vulnerable workers in the undeclared economy left without revenue during the confinement period and possible policy responses that have and could be adopted. Section 5 then turns to three future challenges in the recovery period. The first issue is whether the conventional policy approaches and measures for transforming undeclared work into declared work will continue to remain valid. The second issue is whether the same or different policies will be required for preventing declared work shifting into the declared economy and the third and finally, there is the future challenge regarding the withdrawal of the short-term financial support packages and its implications for the growth of undeclared work. The sixth and final section then draws conclusions and makes recommendations.