Hi, NKR-31 ~
Copyrights and Intellectual Property Rights to material developed and
used by others can be a hazy area, easily misunderstood by everyone.
I'll try to address your questions here so you can get a better idea
of who owns what and why.
PLEASE NOTE: I am not an attorney licensed to practice law in
Pennsyvania or any other state. However, I am self-employed, and my
livelihood relies on being cognizant of copyright and intellectual
property rights.
Likewise, the information offered here is not my interpretation of the
law, but is from other learned minds who have already done so and
given us their interpretations.
*****
You asked: "Who has legal ownership of this code? If no contractual
terms are set, does the code by default belong to the one who
developed it or to the one who commissioned it? Or to both?"
The short answer is that YOU own the rights and copyrights to the
program. As the creator of the software, whether or not it can stand
alone, and whether or not you created it for that particular client,
you are the owner of the software.
*****
EXCEPTION TO THE ABOVE:
There are two exceptions to the above:
1. If you developed the software as a matter of being an employee of
the non-profit organization (NPO), then it becomes work product, and
the NPO would own the intellectual property rights to the software;
and
2. If you assigned those rights to another person or entity ... IN
WRITING ... then they are the owners.
*****
EMPLOYEE AND EMPLOYMENT LAW -
There are distinct determinants as to whether you are an independent
contractor or an 'employee' of an organization.
Pennsylvania law generally follows the US Department of Labor's Fair
Fair Labor Standards Act. Determining whether or not you are an
'employee' under both laws has to meet provisions provisions for
minimum wages and maximum work hours. You are considered to be an
'employee' if you:
1. Work a definite set of hours as prescribed by the employer;
2. The employer directs and supervises your works and provides you the
equipment with which to perform your duties.
(See: Commonwealth of Pennsylvania - Department of Labor & Industry
Wage Payment & Collection Law -
http://www.dli.state.pa.us/landi/cwp/view.asp?a=196&Q=65894&landiRNav=|
)
(See also: US Department of Labor - Fair Labor Standards Act -
Compliance Fact Sheet
http://www.dol.gov/dol/compliance/comp-flsa.htm )
Since you do not meet the determinant criteria of being an employee,
the copyrights and intellectual property rights belong to you.
*****
COPYRIGHT AND INTELLECTUAL PROPERTY RIGHTS
A. Copyrights:
A copyright is the set of exclusive legal rights authors have over
their works for a limited period of time. US Copyrights are
principally defined by the federal Copyright Statute. These rights
include:
- copying the works (including parts of the works),
- making derivative works,
- distributing the works, and
- performing the works (this means showing a movie or playing an audio
recording, as well as performing a dramatic work).
The author's rights begin when a work is created and do not have to
bear a copyright notice. (Works published since March 1, 1989 need not
bear a copyright notice to be protected under the federal statute.)
Works Governed by Copyright Law
Works governed by the copyright law include not only more traditional
works of authorship (such as books, photographs, video and sculpture),
but also works such as software and databases. Copyrighted works are
protected regardless of the medium in which they are created or
reproduced; thus, copyright extends to digital works and works
transformed into a digital format.
(See: Stanford University Libraries - Copyright & Fair Use -
http://fairuse.stanford.edu/library/faq.html
Electronic Frontier Foundation's Patent, Trademark, and Copyright
Archive -
http://www.eff.org/IP/
The United States Copyright Law - in all its glory -
http://www.loc.gov/copyright/title17/ )
*****
You also asked if the answer would change if the following would
apply:
"1a) The organization pays the web company to develop the code into a
standalone, marketable form.
1b) The web company does so on its own time, without billing the
organization (although the core of the code was developed on the
organization's dime).
2) The web company does not develop a standalone product, but instead
takes the code from the current organization and establishes contracts
with other organizations wherein it will adapt the code for their
websites."
Again, ABSENT the two EXCEPTIONS listed above, you would retain
ownership of the copyright and intellectual property rights.
The fact that you developed the software for that NPO allows them the
license to use it under your agreements, whether verbal or written.
If, however, you did not transfer your copyright or your intellectual
property rights, you are the owner of the software.
*****
You said you were working on an agreement with the NPO for who owns
what - while you are hammering out the terms of the agreement, you
will definitely want to decide the copyright and intellectual property
rights and any transfer of those rights, if any.
*****
OTHER INFORMATION SOURCES TO CONSIDER:
Having said this and given you the information above, other helpful
information and discussions of this complex matter are listed below:
1. Employment Law Information Network - Pennsylvania Wage & Hour
http://www.elinfonet.com/stindex/39
2. Final Report from the Working Group on Intellectual Property and
the National Information Infrastructure
The Clinton Aministration "White Paper" on Intellectual Property
http://www.uspto.gov/web/offices/com/doc/ipnii/
3. Papers by Pamela Samuelson
A number of papers on copyright and intellectual property rights by
one of the leaders in the field.
http://www.sims.berkeley.edu/~pam/papers.html
*****
Search Terms Used:
Employment Law
Copyright Law
Intellectual Property Law
Pennsylvania Employment Law
Pennsylvania Copyright Law
Pennsylvania Intellectual Property Law
US Employment Law
US Copyright Intellectual Property Law
*****
I hope this helps answer your questions for now. Prior to entering
into an agreement, even if everyone has hammered out what you want to
happen ... I highly suggest you consult with an attorney who
specializes in copyright and intellectual property law in order to
make sure that what you actually put down in writing is what you
*really* want to happen.
An ounce of prevention now can help avoid a whole lot of "cure" costs
later!
Good luck in your enterprises,
Serenata |
