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Company hires freelancer to do website:How owns the c.right?

 
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johnb
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PostPosted: Wed Dec 01, 2010 12:16 pm    Post subject: Company hires freelancer to do website:How owns the c.right? Reply with quote

Hi,
I am a freelance web developer. A company is hiring me to develop a website and one of its components has certain potential to be developed as a standalone product. The company just gave me a document of requirements and I prepared a proposal with how these would be addressed. Am I entitled to claim part of the copyright?

Thanks
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CopyrightAid
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PostPosted: Wed Dec 01, 2010 1:51 pm    Post subject: Reply with quote

Unless there is an agreement to the contrary, or you are engaged as an employee (rather than freelance), you will be the first owner of copyright in the work.

The relevant section of the Copyright Designs and Patents can be found here

It is quite common for web-designers such as yourself to transfer rights (where applicable) to the client upon payment (i.e. you own it until they pay), but that should really be all dealt with in your own contract of service with the client.

It is also quite normal to retain the rights to re-usable components (i.e. a blog application) that you create if you hope to reuse them elsewhere.
i.e. The page content, artwork, etc. is the clients, the re-usable code is yours and they have simply bought a licence to use it in the same way that they would if buying any other software - Personally that would probably be the way I would deal with it.

I would however advise that you tackle this area in your contract/agreement with the client up front to avoid any subsequent confusion on either side.
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AndyJ
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PostPosted: Wed Dec 01, 2010 3:12 pm    Post subject: Reply with quote

(This reply was written but not posted, before I saw CopyrightAid's reply - apologies for any overlap in our advice)
Your question raises a number of issues. First of all, in common with a number of other technologies, the development of the internet over the past couple of decades has raced ahead of the law's ability to reflect these developments. The Copyright, Designs and Patents Act (CDPA) was passed in 1988 when the internet was relatively undeveloped and the world wide web had still to be 'invented'. So what we have today is a combination of the basic CDPA, caselaw (ie judge's decisions on specific cases) and a series of amendments as a result of European Union Directives or similar outside pressiures, brought into law by secondary legislation. But even still the law lags behind in some areas.
Turning to your specific question, a website is generally regarded as a literary work, in that it is basically made up of words (eg HTML or scripting), and software which is also specifically protected in most cases through the 1992 Copyright (Computer Programmes) Regulations. But in order to gain copyright, in common with other sorts of work, a website must be 'original'. This does doesn't mean 'unique', just that its fundamental structure and content must not be copied and it must be the product of the “sweat of the brow” of its creator, not merely a case of a monkey let loose with a copy of Dreamweaver. In other words, most websites will meet this standard.
The CDPA says that person who creates a literary work (the author) is the first owner of the copyright unless he is employed by someone else for that purpose. Here employed means a full employee, not a contract worker or a freelance who is commissioned for a specific job. The law on this was clarified by the Court of Appeal recently during an unfair dismissal case in which a contractor who had worked within the same company for some years and who was fully integrated into the company's management structure for line management purposes was nonetheless judged to be a contractor not an employee.
So on that basis, in the absence of any written agreement or contract with the company to the contrary, you would own the copyright to that part of the website which you created. The fact that the company has provided a brief for what it wants may have a bearing on whether you own the copyright outright or have to share it with the company. If they provided the 'idea' and you are merely turning that into a working site, it is probable that this would be a work of joint authorship, which means you would both own all of the copyright. If the two elements which you contribute can be separated (as for instance where a lyricist and composer write a hit song) then you can each own copyright in you own part, although on the face of it I am not sure how this could be done in the case you have outlined.
Ideally there should be an agreement drawn up which specifies exactly who will own what. This could cover your right to develop the standalone element you mention, independently of the company. If the copyright is jointly held, it is difficult for one or other of the parties to exploit part of the work without paying the other party a licence fee. The agreement can include other matters as well, such as any ongoing site maintenance arrangements. You should make sure that you also get a suitable credit as the author of the site (your moral right to be credited, which runs alongside the copyright)
You can find a specimen agreement which might be suitable here http://www.own-it.org/contracts/57 although if the company are big and wealthy enough, they may choose to get their lawyers to draw up a bespoke agreement.
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typonaut
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PostPosted: Fri Dec 31, 2010 9:38 pm    Post subject: Reply with quote

Essentially I agree with the above. The only point I would raise is that being an "employee" is not a straightforward equation, and different strands of law will treat this differently. As an example, Andy J has not cited the case above, so I have to guess - if the person here had committed a tort, it is entirely possible that, if this was in the everyday course of their role within this company, that this would have given rise to vicarious liability against the "employer". That is to say that, despite their role as "independent contractor", they may have been viewed as an employee.

Without a citation or outline it is impossible to know whether the case Andy J cites has any bearing on your position.

The best advice is to make explicit your claim for copyright, via a contract. However, as soon as you do this you alert the "client" to the issues at hand.
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AndyJ
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PostPosted: Fri Dec 31, 2010 11:15 pm    Post subject: Reply with quote

Hi Typonaut,
Welcome to the forum. The case I was referring to is Tilson v Alstom Transport [2010] EWCA Civ 1308. The full judgement can be found here: http://www.bailii.org/ew/cases/EWCA/Civ/2010/1308.html
Andy J
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typonaut
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PostPosted: Sat Jan 01, 2011 6:28 pm    Post subject: Reply with quote

The problem here is that this is an unfair dismissal case, not a copyright dispute case. So I think it doesn't really have that much bearing on the issue at hand. If there had been some issue of wrongdoing by the "contractor" against a third party, then it's equally likely that a different court may have found the "employer" vicariously liable - ie that the contractor was in fact an "employee".

The issue here has to do with control.

The main point I'd like to make is that what proves "contractor" or "employee" in employment law may not in contract, copyright, tax or tort. One doesn't follow from the other.
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AndyJ
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PostPosted: Sun Jan 02, 2011 12:24 am    Post subject: Reply with quote

@typonaut. As you will know CDPA s.263(1) provides the following definition:
"“employee”, “employment” and “employer” refer to employment under a contract of service or of apprenticeship;"

It seems relatively clear to me therefore that, in deciding how to apply s.11(2) a court would look to employment law precedent (ie cases such as the one I quoted) if there was not an existing relevant decision in copyright law to guide them. If you can offer such a precedent which you think would trump Tilson, I would be interested to hear it.
Just for the record, in Stephenson Jordon and Harrison Ltd v MacDonald and Evans [1952] RPC 10 it was held that copyright in lectures about budgetary control of firms given by an accountant did not belong to his employer (a firm of management consultants) as he was employed to advise clients rather than give lectures. In a second case, Byrne v Statist Co [1914] KB 622, a journalist employed by a newspaper was entitled to the copyright in a translation he made for an advertisement which subsequently appeared in his paper because it called on his skills as a speaker of Portuguese rather than his skills as a journalist. In yet another case (this time relating to Patent law) the invention of a process to coat wire by an employee of a company which manufactured lampshades was held not to be the intellectual property of the company, because the process could be applied to many other industries and not just lampshade making. It was not part of the employee's duties to invent production processes. From those three decisions it is clear that even if you employed it does not automatically follow that everything you do is necessarily treated as in the "course of employment".
As those are quite old cases, here's a more recent one which explores the area of copyright and employment: Bamgboye and Another v Reed and Others [2002] EWHC 2922 QB. In my opinion this decision shows that currently the courts would need some convincing that anything other than a proper contract of employment or an agreement specifically assigning rights to the commissioner would invoke s.11(2). Source: http://www.bailii.org/ew/cases/EWHC/QB/2002/2922.html
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typonaut
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PostPosted: Sun Jan 02, 2011 1:48 am    Post subject: Reply with quote

The main requirement for assigning rights of an employee to an employer, are that there is "employment". A secondary requirement is that the work undertaken is in the normal course of that employment (CDPA s11(2)) - which is why the employer lost in all the cases that you cite.

Patent presents special issues, because it has additional clauses for employees (Patents Act 1977 ss39-42), so is not directly applicable to a copyright case.

Bentley and Sherman (2009, p129) say the following (after explicitly referencing "contract for service or apprenticeship", CDPA s178):

Quote:
...In general is it easy to determine whether someone is an employee or not. However, there are many different sorts of work relationship, some of which are less easy to designate as employment relations. In such situations the courts tend to focus on whether there is the so-called 'irreducible minimum' necessary to give rise to an employment relation: namely 'mutuality of obligation' and 'control'. If these two factors are present the relationship might be one of employment: if they are not present it is not. However, these factors are not of themselves conclusive...


The only things I want to add to this are that, as I've indicated previously, designation as an employee/contractor may not be straight-forward, and to eliminate doubt one should present ones claims explicitly in a contract - before there is any potential for a dispute to arise.

That is to say that the person attempting to negotiate this problem should use such contracts to make things clear rather than wait for a dispute to arise later. It may well be, that the company in question, if it has any sense, has a standard contract for suppliers (in the small print in the order) that assigns copyright to them. You then get into the problem of the "battle of the contracts".

So, be forewarned, and don't 'expect' that the copyright is your own, if you have done nothing to make sure that it is, and when you may be presented with contracts that say otherwise.
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