intellectual property rights

sagit

Hi All,

Say for instance one is working for a company (office/clerical position) which provides a computer with a bunch of licensed programs (MS Office amongs of them). Using company's property (the computer and the software licensed to the company) and company's time (within working hours) bun have not been asked to do so - an individual has developed some programs/spreadsheets. The spreadsheets are so good that there is some demand from ohter employees to use these spreadheets (as an alternative ways of working and because of time efficiency). Code is passoword protected form being altered (the code is safe for computer as is, altration might couse unpredictable behavior with some damage caused inclusive); there is some expiration date put - they will work after a given period of time.

Theoretically, as long as one work for the company spreadsheets can be maintained and developed, but if one leave the company, programs will not work after a while - no one will be able to update programs or alter the code.

So here are some questions I could not figured out the answers for:

1. Who owes the source code?
2. Can company force an individual to 'open up' a source code?
3. What could be a consequence for an individual on refusal to 'share' the code?
4. What if an individual leave the code open, somebody will alter it and the spreadsheets become danger for the computer's system rather than helpful?

I was trying to put it as clear as I could; english is not my native language so sorry about the errors

regards, sagit

Reloc8

Usually this is governed by contract - anything an employee produces whilst in employment which is part of their duties so to speak is the intellectual property of the employer (so if you are an IT person and you write a sonata that wouldn't be considered work product).

In any event Section 23 of the Copyright and Related Rights Act 2000 provides in respect of employees :

23.—(1) The author of a work shall be the first owner of the copyright unless—


(a) the work is made by an employee in the course of employment, in which case the employer is the first owner of any copyright in the work, subject to any agreement to the contrary,

So, again, if the work is made 'in the course of employment' it belongs to the employer. Doing it outside hours and off company property would not necessarily bring it outside of employment if it involved something which your employer asked you to do. From what you say it is pretty clear to me that the spreadsheet code is the property of the employer.


That answers Q 1 above generally although full and complete instructions would be required to give a reliable answer - you can't get that here - you would need to go to a good solicitor.

Q 2 - no they could not, unless they could show a harm to the company above and beyond financial damage in which case they could potentially get a court order to force the employee to 'open up' the source code - that is presuming there is nothing in the factual position to bring the work outside of the contract of employment or S. 23.

Q 3 - presuming again that S. 23 or contract applies as explained in answering Q 1, the individual could be dismissed, and sued if refusing to 'share' the code caused financial damage, injuncted as per Q 2 if damage outside of financial damage was caused.

Q 4 - individual should advise employer of this and then do as directed - individual could not then be blamed for any harm.

Hopefully that helps

sagit

Reloc8 wrote: »

So, again, if the work is made 'in the course of employment' it belongs to the employer. Doing it outside hours and off company property would not necessarily bring it outside of employment if it involved something which your employer asked you to do. From what you say it is pretty clear to me that the spreadsheet code is the property of the employer.

What if the employer never mentioned nor suggested nor asked the employee to make any spreadsheets - would it not be a case of IT person doing sonate - or rather clerical person doing IT job? The only reason why the spreadsheets has been developed was pure laziness - the employee was bored doing the same simple manual operations over and over again.

regards, sagit

Reloc8

I read your opening question...sorry its not the answer you are looking for.

regards, reloc8.

dermot_sheehan

Agree with Reloc8 that work is product of your employer, was under common law before s. 23(a) was enacted.

for no. 2 and 3 the company could argue it was an implied term of your employment contract that you reveal the source code for any IP that you create. I don't know of any specific case law on this off hand but they could run the argument under the officiuous bystander test that while negotiating your employment contract if this question came up both parties would of course agree to the source being revealed.

If the company managed to convince a court of this they could get an order of specific performance, I'm not saying with certainty that they would be successful but it is a possibility.

sagit

OK, that is more clear to me right now, thanks very much for your opinions, will see what the future is going to be.

best regards, sagit