Copyright for a work is in general owned by the author. [84] This is subject to “work made for hire” where the employer or the person for whom the work was made is deemed to be the author unless there is a written agreement to the contrary. [85] A work made for hire is one that either is made by an employee as part of his employment or is a specially ordered or a commissioned work where the parties expressly agreed in writing that the work in question is a work made for hire. [86] It is, therefore, important when commissioning anyone who is not an employee to create a copyright work to ensure that a written agreement is signed by all parties that expressly sets out the ownership of the copyright in any program produced. [87]

A common problem is whether a writer of a computer program is an employee for the purposes of the work for hire provisions of the statute. In 1989, the Supreme Court considered the issue of who should be considered as an employee for the purpose of this provision and indicated that a balancing test similar to that used in agency law should be applied. Community for Creative Non-violence v. Reid.[88] This test has been widely perceived as being more favorable to the actual creator of a work than the pervious law, thus making it important to ensure that anyone other a full time in-house programmer writes a program, rights in the program are defined fully in writing before the program is written. An example of the application of the new approach in the computer industry is found in MacLean Associates Inc. v. Mercer-MeidingerHansen,[89] where the court noted the writer of the software (a former principal of the party claiming ownership who was thought by outsiders still to be acting as an agent of that party) was, at the relevant time, working on a single project for the party that claimed ownership, that the writer had absolute discretion over how long and when to work, that he was paid on delivery of a product rather than given a salary and that he did much of the work involved on his own equipment in his own facilities and concluded that the work in question was not a work for hire. Similarly, in a case where the party who commissioned the writing of a program reported the payments that it made to the tax authorities as payments to an independent contractor rather than as an employee and had not withheld any portion of its payments for income tax or social security, the fact that the writer of the program traveled extensively with the person commissioning the work and he had directed the projects and hours that the writer worked did not result in the program that was created being a work for hire. [90] However, not all works made by former employees automatically cease to be works for hire. If the modifications made after leaving employment lack sufficient originality, the post-employment work may still be deemed a work made for hire, the copyright in which belongs to the former employer. [91]

Where the work was created abroad, the question of ownership of copyright in a work created by an employee it has been held that:

Where the authors were Russian nationals and first publication was in Russia, Russian law was held to apply. [92]