[plug] Intellectual Property

[Bret Busby]

alan howard wrote:
> 
> On Wed, 02 Aug 2000, skribe wrote:
> > At 19:31 2/08/00, Alex Polglaze wrote:
> > >Interesting concept but wrong.
> > >
> > >The person who writes the code owns the code irrespective of who paid
> > >for it.
> >
> > My patent attorney begs to differ =).
> >
> on this subject, if i creat, devolop and design somthing thats related to my
> work during my own time do I or my employer own the rights to what I've
> created.(even if I didnt get paid for it). I rember reading some where that my
> employer does , unless its totally unrelated to work. is this correct ?

Correct.

It is a matter of duty of fidelity, from what I understand.

This, I believe, on the basis of a text that is used as the textbook in
an MBA unit, which textbook I have encountered, and read the specific
content. The title of the book, from memory, is something like
"Computers and the Law". It was available at the state reference
library. It was a book with a blue cover...

I have just had a look at the liswa website, and
http://henrietta.liswa.wa.gov.au/search/t?SEARCH=computers+and+the+law
lists four such books at liswa, so, if you have the time, it is worth
investigating.

The topic is Duty of Fidelity (it is duty of fidelity to the employer,
as opposed to duty of fidelity to a client).

Another good source of information on the topic, might be to do a search
on http.www.google.com , on the search string " "duty of fidelity" +
employee ". I just got 111 results, on that search.

The way around it, and, the only way, is to get a written agreement with
your employer, signed by both parties, which explicitly states that you
may do particular work (the nature and limitations need to be stated
explicitly), or, any work done outside working hours (a waiver for which
may be much more difficult to obtain) and that the employer renounces
any interest in any such work that you perform. The book included
examples, where employees had gone doing work, and merrily making money,
and then suddenly, their employers had said, "Hold on, you were employed
by us at the time; we own any work that you did, and, we want all the
money that was obtained for doing the work.". And, they won, in the
absence of formal agreements to the contrary, and the employees had to
pay to the employers, all the money that they had made on the side.

I have been involved in the creation of such an agreement, to avoid
these problems. Such an agreement, is best included in an employment
contract, so that, whenever the employment contract is reviewed by the
employer, such an agreement is reviewed at the same time, and, confirmed
, modified, or deleted, with the knowledge of both parties.

Remember, it can be difficult to separate work that is employment
related, from work that is not (unless you are employed as a computer
professional, and your sideline is cutting down trees, or some such
similar obviously different relationship). That is why explicit
statement of what is permitted (on which the employers rights are
waived), is needed, in a formal agreement, which may be used as evidence
in a court of law, if needed.

Disclaimer:
The above, is stated as my opinion, based on my experience, and, advice
of others, and, in reading materials on the issues of Duty of Fidelity
and Intellectual Property. I am not a qualified lawyer, nor, a qualified
practitioner in the area of law known as Intellectual Property, nor do I
purport to be either of these. I do not purport the above references to
the status of the law to be absolute truths, but instead, to be my
understanding, of applicable rights and obligations. I assume no
responsibility for any person acting on this
information, and any person taking any actions, based on the above
information, so does at their own risk.
-- 

Bret Busby

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