[linux-elitists] Software developed by hire

Doug Winter doug@pigeonhold.com
Mon Feb 10 08:51:25 PST 2003

On Mon 10 Feb Michael Bacarella wrote:
> Hypothetical scenario:
> Lets say you develop software for someone with no
> explicit "work for hire" conditions agreed to.  In
> fact, no written contract whatsoever.
> In this case, is the software you have written your
> property or the client's?  If it is your property,
> presumably you can GPL the code and the client really
> has no say in the matter?

In the United Kingdom, at least (which is the only jurisdiction I know
anything about), there is no need for a written employment contract.  

A contract of employment comes into existence as soon as you start work,
assuming there was no contract beforehand.  This contract can include
implied terms.

Implied terms include those that are established by custom and practice
in the industry concerned.  This would certainly include that all
intellectual property rights in the work you do whilst on the premises
and being paid is owned by your employer.

It's possible that instead the employee is self-employed, in which case
there is no employment contract, but a contract to provide services.  In
this case, it would be less clear, although I would expect that courts
would decide that in most cases IP is owned by the employer .  

Whether someone is employed or contracted will depend on the true nature
of the agreement, and would be evidenced by working practices (who
decides on holidays, who provides working equipment and so forth).

doug (ianal, tinla, yada).

key 1024D/6973E2CF print 2C95 66AD 1596 37D2 41FC  609F 76C0 A4EC 6973 E2CF
http://www.britishsteal.com                             doug@pigeonhold.com
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