[plug] Intellectual Property

[Mike from West Australia]

At 03:44 PM 5/8/2000 +0800, you wrote:
>> If you pay extra money to say the HSV team to design for you a
>> special skirt or some other one-off that you want for your car,
>> then you also own it and can do what you like with it - the
>> exception being you cannot copy it no matter how much you paid for
>> it, unless the contract explicity indicated you could.
>
>That is too sweeping a statement.

Given I was not giving commissioned advice - it was the closest
analogy that covers most circumstances,

>  If the contract doesn't say
>anything, then there will be an implied term either that the person
>commissioning the work *does* own the copyright or that he/she
>*doesn't*.

The 'general' implication is that the author owns copyright, there is
no other 'implication' because Australian Copyright Law vests copyright
in the author. There are of course complications in respect of who
is the author - ie. If you are an employee then the author may in
fact be the company that hired you and should be reflected in the
terms of employment ~`:

Some companies will 'try it on' if they think you are a source of IP
as well as a source of coding expertise, its always up to the person who
has the most to gain/lose as to how far you want to go...

>  In employment situations, it's quite easy.  With
>contractors or consultants, it's not as clear-cut.  In some
>circumstances, the person commissioning the work *will* own the
>copyright.

I've never seen that *unless* its explicity stated in the contract,
again - Australian Copyright Law states that copyright is automatically
vested in the author - you don't even need to put "Copyright (C) 2000"
etc on your work...(Though it helps;)

Can you state an example of a circumstance where copyright is implied
or automatically is vested in the entity comissioning the work and
not the author - I would really be interested in this scenario ?

>  This is not the case with photographs, because the
>Copyright Act specifically provides that the copyright in a
>photograph is owned by the photographer where a client commissions it
>to be taken.

And this should generally apply to other fields - unless there is an
explicit declaration otherwise,

>  There is no such statutory presumption in respect of
>computer programmers, so it is a good idea to have a written contract
>that deals with this point specifically.

Yes this is a little vague as contract programmers can come under the
guise of employees and thus complicates matters, hence if you want to
suceed in this area its recommended you become an 'Independent Contractor'
and satisfy yourself of the extents you wish to pursue to safeguard your
IP and that extends to Trademarks, Registered Designs, Patents etc...

Incidentally many may not know but there are circumstances where you may
take out a patent and thus invalidates your copyright...
(rare and sad but true),



Kind Regards


Mike Massen

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