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I write the code, but who owns it?
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jack_spratt



Joined: Sun Apr 25, 2010 2:33 pm
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PostPosted: Sun Apr 25, 2010 2:38 pm    Post subject: I write the code, but who owns it? Reply with quote

I'm a web developer, I have written new applications from scratch. I am self employed, and have a SLA (service level agreement) with a company to guarantee my rates and work for a limited time.

I've never been an employee, and ownership of the code that I write has never been discussed.

So, who owns the code that I've written? I assume that its me as I'm a contractor and have never given up rights to the code in any kind of agreement.

Is it safe to assume that the code is mine?

If appropriate, please refer me to somewhere more suited to this kind of question.
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MartyBartfast
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PostPosted: Sun Apr 25, 2010 4:08 pm    Post subject: Re: I write the code, but who owns it? Reply with quote

jack_spratt wrote:

If appropriate, please refer me to somewhere more suited to this kind of question.


If you want to be 100% sure, get yourself a lawyer, but here's some idle speculation:

1. I've worked many contracts, where it's been usual to have a clause in the contract explicitly stating that anything I write in the client's time is their intellectual property, and that's quite normal.

2. I once had a contract which said anything I wrote during the term of the contract (whether during the clients time or otherwise) was their IP, I pointed out that this coule mean stuff I wrote in my spare time unrelated to their business would be theirs, so the clause was changed by mutual agreement.


I think that if the ownership of IP or copyright isn't explicitly covered in the contracts then your clients would have a good case to argue that anything they were paying you to write, and which you maybe used their services (PC's, office space, stationary etc) while doing so, would be their IP. Also consider whether they were involved in testing your code before they put it live, if so they might argue that the testing is part of the development process.

If it went to court it might go either way and you might win, but in the end the only winners would be the lawyers who will be walking away with bulging pockets.
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jack_spratt



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PostPosted: Sun Apr 25, 2010 6:37 pm    Post subject: Reply with quote

Thanks, some good points.

Regarding the testing: that's a good point, and whilst I think that I could argue that they were testing it because it was being deployed for the specific circumstances of their business, it may prove controversial in court.

Also, could you recommend a firm to use to get advice on this sort of thing? Ever got professional advice yourself on a matter like this?
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johnhudson
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PostPosted: Sun Apr 25, 2010 8:53 pm    Post subject: Reply with quote

The default legal assumption is that the code belongs to you unless you wrote it in the course of your employment; if you are self-employed and a contractor pays you for some code, the default assumption is that whatever code you wrote which was entirely original and written for the purpose of fulfilling the contract belongs to them because they have been paying you for your output.

This can cause problems if you reuse code written for one contractor in a different contract for another contractor.

Some employers have standard clauses covering these situations as do some contractors. But, in the absence of any clauses, you can insert a clause in your tender which sets out ownership of the code.

Not being a programmer I have never done this for code but I came across a very useful formulation when I tendered for some work with the Home Office some years ago which involved producing documentation, namely, the precise text provided would be the copyright of the contractor but I would be at liberty to use the ideas in other contracts.

I have adapted that to most subsequent contracts and not had any problems.

However, legal advice would almost certainly not come amiss in circumstances like these.
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MartyBartfast
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PostPosted: Sun Apr 25, 2010 9:05 pm    Post subject: Reply with quote

jack_spratt wrote:

Also, could you recommend a firm to use to get advice on this sort of thing? Ever got professional advice yourself on a matter like this?



No to both questions - sorry, but you could hike over to http://www.pcg.org.uk/cms/index.php which is an organisation set up to represent contractors, I would be surprised if this question hasn't been raised over there at some point.
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AndyBaxman
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PostPosted: Mon Apr 26, 2010 10:37 am    Post subject: Reply with quote

I would have to agree with MartyBartfast.

If you are writing software for someone and the contract does not explicitly state the the IP remains with you then the customer will have a good case to claim that the IP is theirs.

This isn't a question of employment. I work for a small ISV, so any code I write in their time does not belong to me, but that doesn't mean it belongs to them, either.

Most of the software we write is bespoke, the IP of that software belongs to the customer and we provide the customer with full source code. We do, however, place a term in our contracts to the effect that while the IP of the code belongs to the customer we retain the right to reuse elements of it in other projects.

OTOH, If we write code as part of a service we provide and maintain whether we retain IP or not (or share it) is down to contract negotiations. For retail software we, obviously, retain IP.

Software I write in my own time is my IP though, obviously, there are terms in my contract that prevent me from using my position in the company to my advantage in that respect.
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Last edited by AndyBaxman on Mon Apr 26, 2010 10:41 am; edited 1 time in total
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graemef



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PostPosted: Mon Apr 26, 2010 10:38 am    Post subject: Reply with quote

I assume that from your question your contracts didn't specify one way or the other.

Did you put any license information in the source code?

If so I would suspect that the license would take precedence (assuming any lack of stipulation in the contract).

If not did you use any code that anyone else had developed? (such as third party frameworks). Check out their license.

Did you use code that you developed (for an earlier project) but were reusing (for this one)?

What additional resources did the client provide. Design, Code, Testing?
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AndyBaxman
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PostPosted: Mon Apr 26, 2010 10:47 am    Post subject: Reply with quote

graemef wrote:

If not did you use any code that anyone else had developed? (such as third party frameworks). Check out their license.


A good point. Specifically GPL code. If your project uses GPL code it will have major implications with regard to IP ownership. The major issue is that code that incorporates GPL code is, by the terms of the GPL, also GPL code.
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ollie
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PostPosted: Mon Apr 26, 2010 11:50 am    Post subject: Reply with quote

johnhudson wrote:
The default legal assumption is that the code belongs to you unless you wrote it in the course of your employment; if you are self-employed and a contractor pays you for some code, the default assumption is that whatever code you wrote which was entirely original and written for the purpose of fulfilling the contract belongs to them because they have been paying you for your output.


Sorry, this is wrong. Only if you are an employee does the code belong to an employer. Contractors own the code they write unless specifically stated so in the contract.

You need a to consult with a contracts lawyer. Look to your local LUG or contact UK Linux User Groups.
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jack_spratt



Joined: Sun Apr 25, 2010 2:33 pm
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PostPosted: Mon Apr 26, 2010 11:58 am    Post subject: Reply with quote

Hmm, it does seem that there are several issues here.

I've opted to consult with http://www.egos.co.uk/ - apparently specialists in IT and IP.

The project does use some code that I had previously written, and the whole project it is written in such a way as to be portable and redeployable.

There has been no discussion whatsoever, much less written agreement about any kind of IP ownership.

The client has provided testing (not as much as I have), but I don't see how that in itself gives them rights - I have still not agreed to hand over ownership, and testing would always be required for a specific deployment of software that I'd written.

There is no third party code in use except things like lightbox 2, jquery, and a few FOSS items like that, but they will all count as plugins I think and therefore not affect the license of the code in question.

I haven't added any copyright notice to the files yet, but I will do so now, in case that makes a difference.

Thanks for all your input!
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ollie
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PostPosted: Mon Apr 26, 2010 12:39 pm    Post subject: Reply with quote

jack_spratt wrote:
I haven't added any copyright notice to the files yet, but I will do so now, in case that makes a difference.


You don't need a copyright notice in your work, it is automatically copyrighted under the Berne Convention. See International copyright law - The Berne Convention for more info relevant to the UK.
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nelz
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PostPosted: Mon Apr 26, 2010 12:41 pm    Post subject: Reply with quote

graemef wrote:
Did you put any license information in the source code?

If so I would suspect that the license would take precedence (assuming any lack of stipulation in the contract).


Surely it's the other way round? You have to have copyright on the code in order to be able to license it.
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ollie
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PostPosted: Mon Apr 26, 2010 1:33 pm    Post subject: Reply with quote

nelz wrote:
You have to have copyright on the code in order to be able to license it.


There is no formal method of copyright. Once you have written down, drawn, painted, sculpted, photographed or typed out you hold copyright on that "work". It is only by actively changing the licence by specifying GPL, Creative Commons or any of the other licences that can be used.
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AndyBaxman
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PostPosted: Mon Apr 26, 2010 1:45 pm    Post subject: Reply with quote

ollie wrote:

Sorry, this is wrong. Only if you are an employee does the code belong to an employer. Contractors own the code they write unless specifically stated so in the contract.


That would be very shaky ground to base a case on. If there is no written agreement regarding IP ownership then there may be an implied or verbal one.

I suspect it would come down to who blinks first when it comes to forking out the for legal representation.
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AndyBaxman
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PostPosted: Mon Apr 26, 2010 1:56 pm    Post subject: Reply with quote

ollie wrote:
nelz wrote:
You have to have copyright on the code in order to be able to license it.


There is no formal method of copyright. Once you have written down, drawn, painted, sculpted, photographed or typed out you hold copyright on that "work". It is only by actively changing the licence by specifying GPL, Creative Commons or any of the other licences that can be used.


Yes, and no. If you are employed to write code for a 3rd party, be it a customer or employer, and the contract terms stipulate that they own the copyright of your work under certain defined terms then you never hold copyright for that work.

Aside from that, if you are writing for yourself then you do have an automatic copyright. The trouble is, is you do not make a deliberate statement of ownership and have it witnessed as such, then it will be almost impossible to prove.

You do, however, have the right to be identified as the author, irrespective of who owns the copyright.
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