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Copyright Ownership when Employed

 
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londonseo
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PostPosted: Fri Mar 09, 2012 12:21 pm    Post subject: Copyright Ownership when Employed Reply with quote

Hello all, I am seeking advice on a tricky copyright situation and want to know if a case is worth pursuing.

1) I created a company some time ago and had a partner. I created ALL content for this business, online & offline, artistic and literary

2) At some point I became an employee of that company

3) During all of this time, all works were produced at my home (on my mums couch), at my expense, with my equipment out of normal working hours, usually between 12am - 4am. If you included this time in the hours I worked then I would be working beyond prescribed time in the EU Working Time Directive (80 hours+) and would then be paid much below the legal minimum wage.

4) I also put my name & a code on documents including the website which had a copyright notice in my own name.

5) i also created a product in my own time, my own expense without any instruction to do so. However it turned out the product was in demand so sold items through the website. But the company is still selling this product.

6) The employee contract does say that the company owns copyright BUT... None of the work I did was asked for, all of it was done in my time at my expense (electricity, internet) with my equipment. ALSO, the company repeatedly broke the contract by not paying wages, refusing to act on my grievances etc.

7) I then had to leave the company as they stopped communicating with me, no payments, nothing for nearly 6 months, i just had to go and get another job

Cool I also did a a design for a package for a product I designed and named. I then sold the product to a high street store. In that time the company screwed up the deal. The manufacturer had printed of a massive run of the box design. The high street store then purchased the item directly from the manufacturer with my design but neither I or the company have got any payments for that design

Will I have a case for intellectual copyright? or shall I go Tribunal route instead?
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AndyJ
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PostPosted: Fri Mar 09, 2012 5:31 pm    Post subject: Reply with quote

Hi,
The main factor in determing whether the employer owns copyright is if the article was produced 'in the course of employment'. Employment here means the same as in other employment law, ie the employer was paying NI contributions, there was a contract of employment etc, but that bit isn't in dispute.
The test is largely whether your job would have expected you to produce whatever it was you actually produced, even if it was done in your own time or at home. In other words if your job description involved writing code or designing packaging, or might reasonably be expected of you, then chances are the company owns the intellectual property. The fact that the work you did seems to have been for the benefit of the company tends to make it more likely that it would be seen as 'in the course of employment'. There was a case some years ago in which an accountant who produced a series of lectures on some financial matters was found to own the copyright in his lectures because he wrote and gave the lectures in his own time and the lectures were not for the benefit of the company he was employed by, and his job did not require him to give lectures.
It is worth pointing out that the 'product' you created may well not be protected by copyright, but it may be covered by Design Right. This is slightly academic since the law on the employer owning the right in Design Right is the same as for copyright. However any code for a website will be more likely to be covered by copyright. The packaging could be protected by both rights. If this other company that is selling the product in packaging designed by you without paying for a licence then you or your former employers may have a cause of action, depending on which of you actually owns the Designright.
You don't say if your former employer is actually disputing the copyright/designright issue with you, but I assume at some stage this was discussed.
As for the other issue about how you came to leave the company, you should be able to get advice from the CRB or your union if you are a member, but do not hang about as Employment Tribunal cases need to be started within 3 months of the end of the employment or the event complained about. Arbitration may be a better bet in your case.
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londonseo
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PostPosted: Fri Mar 09, 2012 5:41 pm    Post subject: Reply with quote

Hi, thanks for the reply. I see how active you are here and appreciate the advice.

Firstly, would the company be in breach of contract for not paying me? they have acknowledged they owe me money for work done but did not attempt to pay? Hence the contract is invalid?

I also specifically put my own copyright notice on all documents. When I left, they took the website down and put up another one with images taken from the previous website.

I also registered the domain before the company was formed. After the company was formed I retained ownership. When I left they sent me a message to say I could keep the domain and other materials. However they found an old password and used it to transfer the domain without notifying me.

This happened over 12 months ago so am out of time for tribunal. No discussion has taken place about copyright yet.

Thanks

B
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AndyJ
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PostPosted: Sat Mar 10, 2012 11:58 pm    Post subject: Reply with quote

I don't want to stray into employment law too much as that is not the purpose of this forum, but in general terms I would say that not being paid for the work you did would probably constitute a breach of contract. But that doesn't necessarily make a contract void or invalid. You could possibly pursue this matter through the Small Claims Court. Again the CRB may be able to advise you.

Unfortunately, putting a copyright notice on something is no real proof that you own the copyright. That would have to be determined by a process similar to that which I outlined in the previous post. However the fact that the company took down 'your' site and replaced it with other content might imply that they were recognising your title in the copyright, and if so that would seem to be in your favour. Of course there may be other explanations for this that don't support your case.

Ownership of the domain name is a different topic. As you registered and paid for it as a private individual and not as an employee, then it is possible that you do 'own' it in to the extent that anyone owns a domain name, and therefore the company may have acted improperly by transferring it. Much will depend on any subsequent agreement you might have come to with the company about their use of the site. As I understood your first post, you set up the company and then somehow it passed to someone else and you became an employee, so it is possible that ownership of the domain name may have been treated as an asset of the company at the time of transfer and thus lawfully became their property. However if you don't think this is what happened and you consider you retained ownership of the domain name (for instance paying any re-registration fees if applicable), then this is something you can take up with the registrar of the particular domain, under their domain name dispute resolution policy. They generally use independent arbitrators to resolve these matters without the need for the courts to become involved.

Even though you may have missed the boat on going formally to an Employment Tribunal, it may be worth seeing if their arbitration service can still be of assistance. Details can be found on the link I included in the previous posting.

Postscript. Assuming that the domain name you are talking about is the one in your signature and you are the person named as the registrant in the whois lookup, then you should a strong case under the dispute resolution sytem. However, if you are discussing another URL, obviously this doesn't apply.
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