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What Does Copyright Cover?


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#1 Guest_Autocrat_*

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Posted 10 October 2007 - 08:03 AM

Okay - I did have a quick scout around on this - but there seems little that is conclusive... so I thought I'd ask ad see if something more "firm" or "binding" has cropepd up that people know of.

So... there is Copyright.
Most of us seem in agreement that when something is contracted, it is help until full payment is made, then it is passed to the payer.

So, we get the commsiion, do the quote, get the ATP, go through the design, creation and refinement processes, get it signed off... get paid, in full, and hand over copyright.

This process works whether a Flat Site, Scripted Site, DB Site or a mix of those.

Yet no matter how it goes... what happens if the client, who now owns that site, decides to make copies of it and sell it on???


Does the copyright you transfer over to them permit them to make money off your work, with no referral, right to claim acknowledgement or money?
Waht about 3rd party code/scripts/backends etc.?
Many of us use GPL/GNU applications... so we know they don't "own" that... yet what of the custom stuff you did, tweaking tempates for output, creation of additional code/scripts for new functions etc... did they buy that and do they now own it?



I myself had parts in the Ts&Cs - but have currently removed them for revision... as I'm thinking more along the lines of the "Agreements" when you purchase and Install software applications - you paid, you own, but you cannot reproduce nor open it up and use parts.

I'm all for the lcient "owning" the thing... and it passing on with the business if it is sold/bought/taken over etc... yet I really do not want someone taking something I built for a fee, and then selling it on for their own profit (Though I have had two contracts where I have generated something to be re-sold).



How do you view/approach/handle it?

#2 Respree

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Posted 10 October 2007 - 09:14 AM

[Non Legal Opinion]

Copyright has to do with control. If the software you've created is copyrighted, it says that you 'own' it. If you sell it to a customer, they pay you a licensing fee in exchange for being able to use that software.

For example, you cannot buy MS Windows, start making copies, and then represent it as if you had written it. Well, you could, but would likely find yourself in court shortly thereafter.

I think what it boils down to are the Terms and Conditions which are agreed to when the deal is consummated. If there is verbiage that clearly states that the developer owns the software and payment is made in exchange for using that software, but does not include distribution to other parties, the intent is pretty clear.

In the absense of this type of language, I think one could argue that they paid for the software and, once payment is made, title transfers from them to you. Once it is theirs, they are free to do whatever they please with it.

My suggestion is that if it your desire that your creative works not be resold, to state that in the Terms and Conditions beforehand, rathering than trying to argue with ownership rights after they've spent time and money on marketing it. The argument will go much more smoothly with this timing and it is difficult for them to dispute what is on paper, particularly one that you and your client have both signed. :)

Edited by Respree, 10 October 2007 - 09:17 AM.


#3 Black_Knight

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Posted 10 October 2007 - 11:13 AM

The following does NOT constitute legal advice suited to any specific circumstance.

Disclaimer given, here's a quick and dirty understanding of the part of Copyright law you are having trouble with understanding:

Copyright effectively automatically exists to protect any substantive creative work. It usually automatically belongs to the person who produces that work. However, where that work is commissioned, paid for, or even produced during time that someone has paid for (e.g. produced during working hours while employed by another) then the copyright automatically belongs to the person who paid for that time.

A few 'budding artists' have found that creating works while suposedly doing other work can cost them every bit of ownership of those works.

The client always owns the copyright if they hire you or commission you to do that work unless they sign away those rights in a contract with you. Gven that they fully own the copyright, they have all rights of ownership, assigning, lending, leasing, etc of those rights.

So, we get the commsiion,

Unless the client specifically signs a contract otherwise prior to this point, you never owned the copyright. The client did, all along, because they commissioned the work and are thus responsible for the existance of said substantive creative work.

Edited by Black_Knight, 10 October 2007 - 11:18 AM.


#4 Guest_Autocrat_*

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Posted 10 October 2007 - 11:18 AM

Well - I had stuff for handling Copyright - The client gets the design and the content/output - yet are not entitled to reproduce for sale, resale or non-profit without express permission).

What I'm thinking of doing is basically what appears i all those wonderufl agreemets we all trawl through when installing software etc.
You paid for it, you are entitled to use it and for certain considerations, considered the owner of it - but you have no right to reproduce or sell the item/product.

So I guess it would have to be "licenced", as otherwise they are freely entitled to reproduce or distribute as they see fit... which I'm not willing to happen as they haven't paid me tens of thousands, nor likely to pay me royalties etc.

#5 Black_Knight

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Posted 10 October 2007 - 11:27 AM

What I'm thinking of doing is basically what appears i all those wonderufl agreemets we all trawl through when installing software etc.
You paid for it, you are entitled to use it and for certain considerations, considered the owner of it - but you have no right to reproduce or sell the item/product.

This can exist only where the software is pre-made, and thus the creator owns the copyright. Had a client comissioned the creation of said software, they own the rights to whatever is produced, and the person they hire has no rights of ownership at all.

For this to work for you, you need them to sign away all future rights explicitly before the comission is accepted. They have to grant you the rights, because under English copyright laws, the rights will automatically be theirs otherwise.

#6 Guest_joedolson_*

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Posted 10 October 2007 - 11:29 AM

Like everything above, this does not constitute legal advice. It is, however, BASED on legal advice.

Unless the client specifically signs a contract otherwise prior to this point, you never owned the copyright. The client did, all along, because they commissioned the work and are thus responsible for the existance of said substantive creative work.


While that may be true in the UK, it is absolutely false in the United States. The creator - developer, designer, etc. - owns the copyright absolutely unless the work is "made for hire." The legal definition of a work made for hire only covers works created by a person with the legal relationship of an employee, during their regularly scheduled hours, at their regular place of business. It's a very specific legal situation --- contract work can not fall under the made for hire definition.

In fact, a contract which declares a work as "made for hire" does not actually make it "made for hire." Since the legal definition of made for hire is so narrow, you can not force the definition simply by signing a contract. Instead, you need to explicitly sign over all rights of copying and usage individually, and state clearly that all rights not described are retained by the creator.

#7 Respree

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Posted 10 October 2007 - 12:06 PM

I am wondering how anyone can claim ownership, when you take an open source program, make modifications to it, and then claim the entire program is yours. Perhaps its a part of the law that has not been considered. {Don't know the answer to the comment above}.

I also wonder which laws prevail. Let's say the buyer is in the US, the developer in the UK, where copyright laws may differ.

#8 Black_Knight

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Posted 10 October 2007 - 12:34 PM

I also wonder which laws prevail. Let's say the buyer is in the US, the developer in the UK, where copyright laws may differ.

One of the parts of most legal agreements is an agreement as to which laws shall govern the agreement.

Of course, that falls down completely when one party is in a place where such agreements are not binding :)

Copyright and other intellectual property rights are not universal ether, and China (for just one example) does not have any such protections. In China, anything you can copy, is legal to copy.

#9 Respree

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Posted 10 October 2007 - 12:39 PM

In China, anything you can copy, is legal to copy.


I've heard. :) The recording and motion picture industry here in LA is not too thrilled about that... :blink:

#10 Guest_Autocrat_*

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Posted 10 October 2007 - 12:42 PM

Re-Write

Okay - I am ot questioning general Copyright laws or application.


To Clarify - I want to make sure, as much as possible, that I can be commisioned, produce the good, claim my money, pass on the work - and not have the client reproduce/copy the production without written consent, be it for profit or not.


I'm in the UK.

I am whole heartedly in agreement with the copyright being passed over to the client - one they have paid up!

In the T&C, Project Brief, Authority to Proceed and Invoice, it clearly states that upon full payment the copyright is transfered to the client - until such time, anything produced that was not provided by the client shall remain the providers property and under their ownership.
(I retain the Copyright till they pay me, in full).


So... something like...
Client is not to sell, pass on, reproduce or in any fashion allow the work provided/developed to be acquired/received by others without written consent from the original provider.


Does that make sense?



Do you think that I am being unfair?

Do you think it is acceptable for something you have created to make another profit without acknowledgemet and/or financial renumeration?

You let your clients pass on what you hae produced without battings an eyelid?

Edited by Autocrat, 10 October 2007 - 12:57 PM.


#11 Respree

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Posted 10 October 2007 - 12:57 PM

Place something like this into your agreement.

This Software is protected by copyright, trademark and other MyCompany_Name intellectual property rights. Your rights to use the Software are as specified in this Agreement, and We reserve all rights not expressly granted to You in this Agreement. Nothing in this Agreement constitutes a waiver of Our rights under U.S. or international copyright or trademark laws or any other international, federal or state law.

This Agreement authorizes You to use the Software only on a computer owned or leased by You. Use of the Software on a computer owned by a third party is prohibited. Installation of this Software on a server that allows access to the Software via a public network or the Internet without the use of a password-protected secure portal is prohibited.

You may make copies of the Software for each licensed user and for archival and back-up purposes only.

You may not disassemble, de-compile, or reverse engineer this Software or otherwise attempt to recreate this Software or any functionality or capability of this Software, except to the extent applicable laws specifically prohibit such restriction.

This Agreement and Software license may not be resold, assigned or otherwise transferred to another person or entity without Our written permission.

MyCompany_Name Inc. may terminate this license for any material breach by You. Upon termination, You agree to immediately stop using, and to destroy all copies of, the Software licensed hereunder.

Should You elect to terminate Your use of the Software, You will not be entitled to a refund of any portion of the license fee.

All license fees are exclusive of any tariffs, duties, or taxes imposed or levied by a government or governmental agency.

This Agreement will be governed under the laws of [your geographic location]. We and You hereby expressly exclude the application of the United Nations Convention on Contracts for the International Sale of Goods to this License Agreement.

Any conflicting terms contained in a purchase order for the Software submitted by You which has not been accepted and agreed to in writing by MyCompany_Name Inc. are expressly rejected.

The terms of this License Agreement do not apply if this Software has been furnished to You pursuant to a separate, written license agreement executed by You and MyCompany_Name Inc.



#12 Guest_Autocrat_*

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Posted 10 October 2007 - 01:04 PM

Regarding interational trade - usually the legislation of the country the business is in takes priority... thus US Client - UK Provider, then UK Rules/Laws should apply, unless the contract/agreemet states otherwise.

It's when it's Business to Business with pooled resources dealing with a client that thigs get real ugly :)


As for China and the Copying issues - it's no different than what happened with Russia and Yugoslavia etc... they will probably be bouycotted for it at some point.
There are copyright statemets, and as they originate from the US, they should be upheld. Failing to do so will result in a breakdown of trade (not good for anyone as that sort of thing stuffs up the entire world).

These are the bits that I am looking for...

You may make copies of the Software for each licensed user and for archival and back-up purposes only.


You may not disassemble, de-compile, or reverse engineer this Software or otherwise attempt to recreate this Software or any functionality or capability of this Software, except to the extent applicable laws specifically prohibit such restriction.


This Agreement and Software license may not be resold, assigned or otherwise transferred to another person or entity without Our written permission.


... the third one would need altering IMO, as if the company is sold on, takenover etc... then the site should go with the business(if the business paid for), or the individual (if the individual paid for it).


Otherwise I'm thinking that s the sort of thing I want to include - as it seems more specific and "tight".


Do you agree?

#13 Ron Carnell

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Posted 10 October 2007 - 05:12 PM

You can sell your software or you can license your software.

I don't see any reasonable way to do both.

#14 Guest_Autocrat_*

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Posted 10 October 2007 - 05:38 PM

Hmmmm...
...Ron Carnell...
Thats a darn good point!
I'm being al ittle greedy ... wantig my cake, your cake and their cake... and eating the whole lot with a diet coke!


Well - I want them to "own" or "have rights"... but I don't want them to take advantage of what I've done. The problem is our sowrk can be so easily replicated/reproduced... which leaves us open to some pretty nasty stuff (in the past, I've had a competitor convince a client to let them have a look - copied my work, then re-used it for their own ends!).

Yet I don't want to take the site off the client and say... you can use it, but put it away afterwrds...
They paid - they should own it... but I don't see why I should potentially loose out due to unscrupulous characters either.


Darn - now you've got me thinking again!
:)


Okay - I'm not selling my product ... I'm selling my services.
This results in something be made... which the client gets usage of.
They key point there is "they"... not anyone else.

So, any suggestions (as I admit to being stumped), on how I can permit, what I view as correctly, the client to own the "design" and the "content" etc... yet not reproduce, replicate or pass on, for profit or non-profit, what was produced?

Licencing seems okay... but I worry about impinging on the clietns rights - they paid for it...they should own it... preferably out right... hmmm.


Oh - and no one has answered whether they worry about this sort of thing... am I the only one?

#15 Ron Carnell

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Posted 10 October 2007 - 07:15 PM

In my opinion, Lyndon, the solution you seek isn't a legal one but rather a psychological one. People don't give away what they value; indeed, their willingness to share, I think, is inversely proportional to perceived worth. "If I had to pay for it, so should you!"

So . . . charge more. :)

(I'm being a bit flip, of course, because we all know that perceived value isn't determined just by monetary costs. There are a LOT of ways to encourage clients to more greatly value what you provide. Use them all. But, uh, charging more is a good start.)

To answer your greater question, no, it's not something I ever worried overmuch about. If you want to give away or even sell my older work, it's not a big deal. First, your clients aren't the people who would come to me any way; by the very nature of what you're doing, we're targeting different audiences. Second, you have an inferior product because I know I'm better today than I was yesterday. What you can reproduce easily I can reproduce just as easily . . . except I can make it better.

#16 projectphp

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Posted 10 October 2007 - 08:05 PM

I am wondering how anyone can claim ownership, when you take an open source program, make modifications to it, and then claim the entire program is yours. Perhaps its a part of the law that has not been considered. {Don't know the answer to the comment above}.

Depends upon the licence:
BSD: This licence allows for ANYTHING. So the answer is yes you can claim it, sell, and give nothing. That is how Microsoft built internet access into Windows: they took the (free?)BSD TCP/IP stack,a nd reworked it slightly. that is why you have the folder {WINDOWS}\system32\drivers\etc with a bunch of files named hosts etc (all unix files). The apache licence is like that, from memory.

GPL: No, you can't. When Balmer called the GPL a cancer, he was 100% right. The GPL, which a lot of open source software is built upon, requires you to release anything that uses GPL code under the GPL. It is, in efect, a cancer that spreads to everything it touches. Unlike cancer, many ppl would argue this is a positive thing (me amongst them).

For other individual licences, you would need to check. Apache is like the BSD licence, whereas many others are like the GPL, and require pay it forward freedom (as in speech).

#17 Feydakin

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Posted 10 October 2007 - 08:47 PM

When I used to code for a living our contracts were pretty iron clad.. I owned the copyright but allowed the client to use it as they saw fit internally.. If they needed 20 copies for their workstations, fine.. But they could not resell it..

Now when I hire code work out I usually take the opposite approach.. I negotiate for ownership of the code and the programmer can not take the finished software and simply resell it.. Mostly because when I have an idea I don't want to see it whored out before I can take advantage of it.. But, I do pay more for these things than if I let the programmer keep the rights..

#18 Guest_Autocrat_*

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Posted 11 October 2007 - 10:38 AM

Hmmm... well... I can see the duality of my request... so thanks for all being so thorough - very much appreciated.
It isn't helped by the fact that I'm on the fence between clietn rights and ownership, and my want of waht I produce not bein "whored" (fantastic phrasing there!).

So... I think Iwilltry to cut a dual path... the clietn should have their rights, but I should at least be ableto cover my backside.

Therefore... I think the phrase would have to be "granting licence".

The content is all the Clients (obviously, but sould be stated for clarification).

The design, consisting of the X/HTML, the CSS and Media/Images, is to be held and used by the client as they see fit, so long as it is retained by the client and in no manner repoduced or passed on to other parties without due notice and consent.

Any code, where not previously under other license, is to be considered as the providers property and not to be resold or provided to other parties without due notice and consent.



So, unless I'm msitaken, that is basically giving licence with conditions of usage, whilst acknoeldging the clietns copyright for the final output.

Not fantastic, but I'm really not willing for my work to be passed on to competitors again.

#19 shadowbox

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Posted 03 January 2008 - 05:24 AM

(in the UK) Had a client comissioned the creation of said software, they own the rights to whatever is produced, and the person they hire has no rights of ownership at all.


This is generally not the case - IANAL, but UK law is very similar to US law and unless a specific 'work for hire' agreement is in place, copyright remains with the creator not the commissioner (unless you are an actual employee rather than a contractor). The definition of a 'work for hire' agreement doesn't necessarily require a formal contract though, it could be a verbal agreement (hard to prove) or email communication or similar (i.e. 'Yes client, once you pay me, all the work is yours').

It's a very tricky field as it can be dangerous to give up ownership of any code you create - for example, if your client 'owns' the app, what about the classes and functions that you used within in it that already created previously and regularly reuse in all your projects? Can the client now stop you reusing these objects?

My default terms of service (for a typical web development project) is that copyright of the web site design (the look and feel of the site, branding and the site HTML/CSS template) is completely transferred to the client upon full payment. Beyond that, all server side coding and database structures remain property of my company and are merely licensed to my client. The licence specifies what usage is allowable, and this (by default) is a lifetime, non-exclusive, single domain licence which does not allow the client to resell or repackage (etc, etc, blah blah). Basically in laymen terms,

'you can use this software on your company site, but we own all the code inside. If you want to make copies and sell this as a commercial app, you need our permission. We reserve the right to reuse elements of the code with other clients'

We also make it clear that some parts of their site backend may use open source or scripts owned my third parties and hence copyright stays with the respective owners.

This is the default, but it's nearly all up for negotiation should the client be unhappy with any aspect. But basically if a client is looking to create a commercial app, then he must pay a fee structure that reflects this usage.

We also have a business that offers a pre-developed CMS service - this is effectively a hosted solution with an pre-existing application that we developered ourselves, and in this instance our licence is very strict indeed.

We also keep complete ownership of any graphic raw source files (e.g. PSD, FLA etc that contain trade secrets). The cients own 'the print' (gif, jpeg etc), but we own the 'negative'. Although this is something we tend to be quite flexible with, and it depends on our relationship with the client.

The key in all instances is to make sure the client understands what he is signing. In 90% of cases, Ive found clients couldn't care less about ownership of code although ownership of the design is usually something they want (why would I want to own that anyway?).

On the flip side, we occasionally deal with prospects who want blanket 100% ownership, based on their own licence that they make all vendors agree to. Recently Manchester University asked us to pitch on a project, but to get the project we would have agreed to effectively signing over all rights to everything and anything used to develop their site, no exclusions, no negotation. In these cases we simply decline the work.

On another note regarding the concern of your work ending up in the hands of competitors, this again is quite an issue. If we host the web site for a client, our terms prohibit third parties accessing the server (in fact, we don't even let the clients access the server, beyond very restricted FTP access). With externally hosted clients, we utilise Ioncube or Zend encoding on key scripts and restrict the app to only working on the specified domain. Not ideal as it seems there are now companies offering decoding services for these apps.

#20 that-damn-silver-guy-again

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Posted 20 February 2008 - 08:56 PM

Intellectual property rights can be retained upon a sale of a website, software or whatever, however such licenses really do need to be drafted by a solicitor with copyright experience.
There are so many factors to take into account that only a professional can really deal with them. What for example if your client dies/bankrupt or does it comply with the requirements of the Berne convention and/or EU copyright directives. Is it supported with licences from Microsoft, Adobe or Monotype typography Ltd etc for whatever of their fonts were used, (e.g if you buy windows, Microsofts' usage license  does not extend to any commercial use or publication on the internet. etc)
Copyright Licenses are very rarely generic enough to fit all cases. They have to be drafted bespoke to fit each set of individual circumstances. Using precedents from the internet is extremely dangerous.
Tread carefully and best seek professional advice.



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