Who owns code copyright

Applying the basic law of copyright to software development, if you personally write a class or a module, you own the copyright to that class or module. NET, you own the copyright to those lines of code you wrote. You are free to re-use that code in any way you like, and no other person or entity can legally use that code without your permission.

The basic rule is subject to several exceptions. In the software world, there are three exceptions so common they swallow the rule. A more nuanced and practical understanding of the role of copyright in re-usable code requires as much understanding of the exceptions as the basic rules.

The three exceptions to the basic rule of copyright ownership most prevalent in the context of software development are the "work-made-for-hire" rule, the "License or Assignment" clause in a development contract, and the unique situation encountered when developing on an "Open Source" platform.

The "work-made-for-hire" doctrine generally defines the relationship between a software developer and his or her client. In either situation, the author of the code does not own the copyright in the code, as would be expected under the basic copyright framework. Rather, the person or business that employs the author or that commissioned the software owns the copyright in the code. When a developer creates software as an employee, determining ownership of that software under the "work-made-for-hire" rule is relatively straightforward.

Any work a developer creates within the scope of his or her employment is owned by the employer. Analysis of whether work is "within the scope of employment" can be extremely complex.

However, at its most basic, if a developer writes a particular piece of software for work, his or her employer owns the copyright to that software. When a developer creates software as a contractor, analyzing who owns the copyright in code created as a result of that relationship becomes both more complex and more important. Courts and legal analysts use a three-part test to determine whether the developer or the client owns a particular segment or module of code.

First, the work must have been specially ordered or commissioned. Second, the work must specifically fall within one of the ten categories enumerated in part b of the "work-made-for-hire" rule.

If the work at issue does not fall within one of the enumerated categories, it cannot ever be a "work-made-for-hire. Third, and most significant, a commissioned and copyrightable work will only be considered "work-made-for-hire" owned by the client if the parties have a written agreement signed by the developer that explicitly states that the work is "work-made-for-hire. If a particular piece of software is a "work-made-for-hire," the employer or client that commissioned the code owns the copyright in it.

In order for the developer to have any right to use the software later or in different projects, the developer must negotiate a license to the software in the same way any third-party would.

Outside of "work-made-for-hire," almost every development engagement includes some arrangement for the ownership, assignment, or licensing of the software. The original author or any other owner can also transfer or share copyright rights to or with others through an assignment of the copyright or a license of the copyright.

These two concepts should not be confused. An assignment is a grant of all of the rights of the author in the copyright to another party. If the developer assigns his rights to code he or she has written, the developer no longer has any right to the code, and must license the code from the new owner to have the right to re-use it.

Additionally, for an assignment to be binding, it must be made in writing, and must be signed by the developer. Any alleged verbal assignment of copyright rights will be considered a license of those rights and not an assignment. A license, in contrast, is a grant of permission to use the code without giving up ownership of the code.

If assigning copyright in software is like selling your house, licensing copyrighted software is like renting your house. A license can range from a mere right to use the software, module, script, or class in the completed software, to granting rights to re-write the software or create derivative software from it, all the way up to all of the rights to the code that the original creator has.

A license can be exclusive in the sense that the author agrees not to license the code to anyone else in a particular geographic region, industry, for a period of time, or at all, or it can be non-exclusive in the sense that the licensee is only one of several concurrent licensees, each with the same or overlapping rights.

Importantly, the terms of licenses are interpreted according to the contract rules of your local jurisdiction. Therefore it is extremely important that the parties understand exactly what they are agreeing to before coming to an agreement.

Licenses and assignments are the two building blocks of software development agreements, and should be a part of every software development contract. If software is not a work-made-for-hire, or the software copyright is not either expressly assigned to the client or licensed to the client at the end of the development project, then the client will infringe the developer's copyrights in the code every time the client uses that code.

Therefore, every well written software development contract will contain a clause designating the code a work-made-for-hire, assigning the code to the client on completion, or granting the client a license to use the code on completion.

When thinking about copyright and IP rights, it shouldn't just include code. It should cover designs, wireframes, documentation, diagrams or any other asset created by your developer or software company for you. Broadly speaking your software may contain other smaller software packages to provide specific functionality to your application.

These packages are written by third parties and are used to provide features or functionality common to many software applications, this includes open source software.

They may be used in your software to lower your costs and speed up development time. Your developer may use software developed by third parties in your application or website, including open source software. Copyright for these cannot be assigned to you and your software should operate within the terms of the license for their use.

You should ensure your developer provides you with a full list of all of the software packages used and that they are meeting all of the terms associated with them. Your developer should provide you with a warranty that they have not infringed on a third party's IP when creating the software and provide an indemnity with monetary protection for any third party actions taken against your use of their software.

The developer or development company may have some pre-existing, in-house software packages they use across their customer projects as needed. You should ensure you have list of that software and the terms of use associated with their software. In most places, the copyright ownership of an author lasts for their lifetime plus 50 or 70 years.

And unlike copyrights owned by an author, the clients own their commissioned work for 95 years from its publications or years from its creation. The primary factor of works protected by copyright laws is their originality and fixation. Originality is the aspect of a created work that makes it new or innovative, and therefore distinguishes it from reproductions and derivative works.

For example, written work, like a novel. Copyright laws protect literary, dramatic, musical, and artistic works, which somehow includes computer software as well.

On the other hand, copyright laws vary in different countries. Some countries have no copyright protection for authors within their borders or foreign works at all, so identifying the actual owner of the copyright can be tricky, but all the more important. When outsourcing a software product , especially with offshore companies, clients must compose a detailed contract that specifies the owner of the copyright to a written code. Many problems arise without a written contract; one of the parties may even file a copyright infringement lawsuit.

In this case, the court where the act of infringement occurred handles the issue under its jurisdiction. Therefore, the contract determines the owner of the copyright; as we have already said, whatever the contract says is valid in most cases.

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