Software Arts Legal Protection — Part 6 | Kidon IP

Due to the size and complexity of computer code, software is usually created by a team of programmers.

Therefore, to fully own software, one must first ensure that each of the developers has relinquished any ownership claims they may have. This is an important step because the legal ownership of the copyright automatically belongs to the people who create the work, unless the work is a work made for rental.

Under the provisions of copyright law relating to work for others, a natural or legal person who does not create a work is considered to be the author of the work if he or she is either : (1) The employer of the creator, for whom the employee created the work within the scope of his employment; or (2) A party who has specially commissioned the work pursuant to a written agreement with the creator of the work acknowledging that the work is made for rental.

For specially commissioned software to be considered a work made for hire, either the sponsor and the creator must have a de facto employer-employee relationship under the common law of agency, or the commissioned software must fall under one of the nine specific statutory categories. Since computer programs as such are not among the nine categories of works that non-employers can commission as works made for others, a party that commissions an independent contractor to develop computer software should obtain the Contractor’s written assignment of the Contractor’s rights in the resulting work to ensure that the creator’s rights in a program are effectively transferred to him. The principal may also seek to qualify the ordered software for custom work processing by obtaining written agreement from the commissioned contractor that the software is custom work and either two: (1) Establish a de facto employment relationship with the contractor by fulfilling common law agency requirements; and (2) Enclose the software, if any, as part of an audiovisual work; a translation of another program or another program language; or a compilation.

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