1) Worker’s inventions in Argentina

Worker´s inventions in Argentina have a scattered and inorganic legal framework that, in many cases, produces uncertainties.

The question of ownership of worker’s discoveries, developments, and inventions in Argentina is of particular importance for the booming Information and Communications Technology (hereinafter, ICT) industry, whose software developments may represent an intangible asset of enormous value.

In this opportunity, we will give a brief overview of the software situation, concluding with the decisive importance of employment contracts (in the case of employees) or service contracts (in the case of independent contractors), and of the complementary assignment of rights and confidentiality agreements to guarantee the companies’ ownership of the software works developed with their investments and resources and their commercial secrecy.

2) The legal framework of worker’s inventions in Argentina

The legal framework of worker’s inventions in Argentina is scattered in rules of different hierarchies, effective date, and nature.

Article 17 of the National Constitution, in its pertinent part, determines that:

 “Every author or inventor is the exclusive owner of his work, invention or discovery, for the term granted by law“

The Labor Contract Law No. 20,744 (hereinafter, the LCT) in force as of September 20, 1974, in its Article 82 on inventions of the worker, states that:

“The personal inventions or discoveries of the worker are his property, even when he has made use of instruments that do not belong to him.

Inventions or discoveries derived from the industrial procedures, methods, or facilities of the establishment or from experimentation, research, improvements, or refinement of those already employed, are the property of the employer.

The inventions or discoveries, formulas, designs, materials, and combinations that are obtained after the worker has been hired for such purpose are also his property.”

The Intellectual Property Law No. 11,723 (hereinafter, the IPL) rules in section 4, subsection d), effective after the TPL, that the following are holders of the intellectual property right:

“(d) Individuals or legal entities whose employees hired to develop a computer program have produced a computer program in the performance of their work duties unless otherwise stipulated (Subsection (d) incorporated by section 2° of Law No. 25,036 B.O. 11/11/1998)“

There are also provisions on the ownership of inventions in the Patent Law No. 24,481, which are not relevant for this article focused on software, which is not subject to patent in Argentina but to protection under the IPL.

3) Who is the owner of the worker’s software developments in Argentina?

From a harmonic interpretation of the LCT and the LPI, the worker’s software developments in Argentina would be subject to the following regulations:

a) If they are independent of his obligations under an employment contract: the software developments of the worker in Argentina are his exclusive property, “… even if he has made use of instruments that do not belong to him” (LCT, article 82, first paragraph)[1];

b) If they are related to an employment contract:

(i) The worker´s software developments in Argentina that had been hired for such purposes, exclusively or as one of its services, are the property of the employer unless otherwise agreed (LCT, article 82, third paragraph. LPI, article 4, paragraph d); and

(ii) The worker’s software developments in Argentina, regardless of the purpose of his employment, which are derived from the industrial procedures, methods, or facilities of the establishment or from experimentations, research, improvements, or enhancement of those already employed, are the property of the employer.

4) Conclusions

To avoid any doubt as to who owns the worker’s software developments in Argentina, companies in the ICT industry should have:

(a) A written employment contract, that clearly defines the employee’s developing software duties[2];

1. b) An assignment of the rights over the employee’s inventions in Argentina, within the employment contract or by a separate document, to complement and provide even greater security to the provisions of the employment contract, ensuring the ownership of all the developments made by the employee as a consequence of the services for which he/she was hired under a dependency relationship; and
2. c) Confidentiality obligations included in the work contracts or separate documents, which seek to avoid the risk of disclosure of the employer’s proprietary developments.

A well-designed contract would also be necessary if the company hires independent contractors for software development, and the contracts should include a precise definition of the purpose of the contract, the ownership of its results, and confidentiality obligations.

It is therefore essential that companies consult with lawyers specialized in corporate law to design the appropriate work contracts, service contracts, and complementary agreements for the assignment of rights to ensure the ownership of software developments. In addition to the corresponding registration of the programs before the copyright protection agency, a matter that we will leave for another opportunity.

                             Matías Benzaquen                                                           Mario E. Castro Sammartino

[1] Por dar un burdo ejemplo, un trabajador administrativo de una empresa agrícola que, fuera de su horario de trabajo aunque empleando una computadora portátil que le fuera entregada por su empleador como herramienta de trabajo , desarrolla en su casa una aplicación para teléfonos celulares destinada a reproducir música, es propietario de ese desarrollo de software.

[2] La jurisprudencia ha juzgado determinante la existencia de contrato de trabajo a los fines del desarrollo de software para dirimir a quién le corresponde la propiedad de las invenciones del trabajador en la Argentina (cfr. Cámara de Apelaciones en lo Civil y Comercial de Rosario, Sala III, Barrea, Osvaldo Rubén c. Bco. de Santa Fe S.A. y otro • 03/06/2008 Cita: TR LALEY AR/JUR/7782/2008

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