Property rights to design files

[djmatthill]

Just a quick question about Design files.

 

If a a contractor is paid to re programme a dsp device like a Soundweb , Mini Drive etc , who owns the actual programme ?

 

We recently had a few Soundwebs re-programmed and would like to keep a copy of the file for future reference and for our peace of mind.

 

Is this a normal and reasonable request or is it normal /legal that an installer "holds us to ransom" by refusing to release the files?

 

How do you treat your design files ?

 

 

Thanks

 

Matt

[MarkBarl]

Not necessarily the same but in the manufacturing industry, it is very common to buy skills in on a contractor basis. Very simply, the contract should stipulate that all work done while under contract belongs to the company paying for the development. There is however some grey areas, especially in programming. For product design, you would expect original work that has input from the contractor's experience of product design. With programming however, it is highly likely that the contractor will have a library of routines and code that they have produced that gets reused time and again. The difficulty comes in identifying the owner of that code. If it was first produced while working or contracting for another firm, then technically it should belong to them. However, if it is original work by the contractor then they would not want to relinquish the intellectual property to any firm as the contractor would wish to use it over again and would want to protect it.

 

First place would be to look at the terms and conditions of the contract with the contractor.

[paulears]

As the person commissioning the work, things like ownership should be detailed in the spec. Photographers often retain copyright, but relinquish it for extra money. If I used my own software and skills to set a piece of equipment up, then the payment is for doing the job. Unless somebody specifically asks for it, they don't get anything else. It's rather like an electrician rewiring a house. He knows where the cables went, where potential expansion can be taken from and won't leave you any wiring diagrams or technical details. If you want something special, ask for it in writing.

[Wilflet]

I would think having a back up for a dsp program a fairly standard procedure, 2 of the companies I freelance for have given me the libraries for their xtas- with one of them its expected that anyone who is doing sound for them has access to it and its available on dropbox. . The idea being that if one ever had a problem and wiped its memory, or went wrong to the point where another needed to be sourced locally then we can get our settings onto it right away.

 

If we were talking a propriety program made from scratch then I could see why the programmer would want to either keep control or sell for more- but were presumably talking somthing done to what you specifically asked, that you'd have no ability to resell (venue specific routing and cross over combinations) and your aim is that you can fix it at any point it goes wrong rather than have to find a contractor who may just have gone on holiday for a few weeks.

 

Obviously wording of contract takes precidence, but I can certainly see why you'd want it.

[Hilary Watts]

I have heard of a local venue where a third party contractor programmed a Soundweb system and, according to what I was told, protected the settings with a password which was not revealed to the owner of the system, who then had to call back the same contractor (who is not based locally) every time there was a problem or an adjustment was needed. I can see the advantages from the contractor's point of view both in terms of ensuring future business and also (to be fair) possibly minimising unnecessary call-outs as a result of someone tinkering with the settings.

 

However, if I were the owner I think my reaction would have been to ask another firm to do a factory reset and set things up again from scratch with a stipulation that the owner was to be left with the password and a back-up of the settings so that they could be re-loaded if necessary.

 

I don't think Paul's analogy of the electrician quite fits - somebody who wants to modify electric wiring in the future can at least see what is there and try to work out the original scheme but there's no way to find how a Soundweb or similar black box has been programmed without the relevant password and/or backup to re-instate lost settings.

[Stuart91]

This makes for an interesting read. It is obviously geared more for touring engineers than the installation market, but the same basic legal principles will probably still hold.

[dbuckley]

'tis an interesting intellectual property question. And it underlines the importance of a contract that specifies such things.

[paulears]

Wedding video people charge a lot of money but get very put out if the happy couple ask for anything other than what is in the edited video. They retain the rights to all the material they shoot, and make sure that they can use it in their advertising. A few don't, but most do.

 

A few years ago I actually went and reset a BSS that had been locked by the installer at a venue. PIN numbers seem to be used quite frequently to tie a supplier to a user I suspect.

[BlueShift]

As far as I know, legally speaking, work product is always the property of the employer unless otherwise stipulated. So if you are freelancing for someone, or employed by a tour, then this is the case.

 

Logically, it certainly holds that if I pay you to draw me a picture, I own the picture. I haven't just purchased the 'act of drawing', but also the resulting work.

 

When one company contracts another company though, then I guess maybe it isn't so straightforward

 

Wedding video people charge a lot of money but get very put out if the happy couple ask for anything other than what is in the edited video. They retain the rights to all the material they shoot, and make sure that they can use it in their advertising. A few don't, but most do.

 

Interesting.

 

My wedding photographer is only allowed to use the pictures that I agree to for marketing purposes.

 

Again, I suspect unless he drew up a contract that was different, legally this would fall in my favour, for the same reasons as above

[mark_s]

As far as I know, legally speaking, work product is always the property of the employer unless otherwise stipulated. So if you are freelancing for someone...

 

...When one company contracts another company though, then I guess maybe it isn't so straightforward

 

Which is essentially what you're doing when you contract a freelancer!

[ImagineerTom]

Legally (whether you're dealing with a person or a business entity or if you are either of those things) if you are hired to do something by someone then ownership / control / copyright of whatever you do and the processes specifically related to that creation belong to the people doing the commissioning unless there are SPECIFIC contract terms expressly stating otherwise.

[paulears]

There is some specific photography copyright information here which contradicts the usual application - in that self-employed photographers DO own the copyright for their images whereas employed photographers don't.

 

This is a couple of paragraphs from that linked page.

Copyright

First of all, copyright is “a property vested in works which authors have created”. In this case the photographer is the author. Copyright (1) protects against unautorised reproduction of your photographs, (2) entitles the copyright owner to economic benefit and (3) seeks a fair balance between the authors and users of protected materials. The good news is photographers automatically own the copyright in any work that they have created; you do not need to register it, declare it, or anything else. It is possible to transfer all or certain copyrights to another party.

Employed Photographers

The situation is slightly different for employed photographers. Employed photographers do not own copyright in work created “in the course of their employment” unless they have an agreement to the contrary. You can consider yourself employed if your employer pays PAYE and National Insurance. Freelance work does not constitute being employed. You should always discuss ownership of copyright before undertaking an assignment to ensure that both you and your employer understand the score.

 

You can see where the photo/video industry are coming from if you look at this link to the Government Intellectual property Office - where the decider seems to be the term 'employed'. The HMRC amongst other bodies seem to have a focus on 'services' - and more and more providing services is the key issue where there is blurring between employed and self-employed status. The self-employed for tax, but employed for NI situation that finishes in April is another example - if after April you invoice for 'services', then the people you are working for (who know the old rule) will no longer deduct Class 1 NI from a self-employed person. The copyright issue also seems to use the same decider - 'services'.

 

In the absence of a contract detailing the ownership, a self-employed person does own the copyright in the images they capture.

 

The IPO have this to say on the issue

Works created for an employer

In the case of a written, theatrical, musical or artistic work, the author or creator of the work is also the first owner of any copyright in it. The only exception to this is where the work is made by an employee in the course of his or her employment.

 

Where a written, theatrical, musical or artistic work, or a film, is made by an employee in the course of his employment, his employer is the first owner of any copyright in the work (subject to any agreement to the contrary). In the course of employment is not defined by the Act but in settling disputes the courts have typically had to decide whether the employee was working under 'contract of service'.

 

Where a person works under a 'contract for services' he may be considered by the courts to be an independent contractor and his works may then be considered to be commissioned works.

 

An employer should keep careful records of which person(s) created the work for them which they own. The period of copyright protection may still be linked to the date of the death of the creator(s) - that is the employee(s).

 

Complicated stuff!

[ImagineerTom]

...and to further confuse things, all the above Para's talk about the "owner" of copyright but don't acknowledge the subtle difference of the "controller" of the copyrights. Yes technically everything you do you "own" the copyright to but your employer might then be gifted the ownership of that copyright by nature of your employment, or they may be granted control (via an exclusive license) to use that copyright as they see fit.

 

Trevor Nunn directed (and thus owns the copyright in) all the iconic bits of Les Mis, Boublil and Schönberg wrote the words and music (and thus own the copyright) but it's all controlled by Cameron Mackintosh as he is the controller of those rights by virtue of the contracts he has. If the entire original Les Mis team (each of whom "own" but don't "control" their respective copyrights) got together they still couldn't stage the show without CM's approval.

 

Thus if you're involved in anything that is vaguely artistic and creative (and "programming" doesn't count as creative, it's effectively the same as being a typist) it's essential you make sure your employment contract or terms of business clearly state the position with regards to ownership and licensing rights to anything you do for someone else.

[paulears]

Not sure who is an adobe user here, but in Bridge, you can edit and insect the metadata, and the HUGE number of different 'hooks' people have is quite amazing. I'm assuming their inclusion is because in some industry these things are important - but is shows how complex it is. I set up a template for me to use, and then realised that some of these metadata fields appear if you upload to things like facebook, yet I can't say I've ever seen any pictures with these tags containing data - so most people just don't bother.

[indyld]

One thing I found when interesting moving from work for hire freelancing into academia is the detail of the standard contract for academics. This is, I assume, much the same as other teaching contracts in that there are many things that I retain the rights to, rather than my employer. These things included created teaching materials, original content, papers etc etc and the employer only really owns the rights to stuff produced for admin purposes and dull, process things. I thought at the time what a good deal this was I that I could build stock that was mine and portable should I move on , and build it on my employers time using their resources!

 

I was also careful not to re-use content created by others when I took over the modules for obvious reasons. Of course, should I move on I then may like to consider "resetting the desk" by ensuring that my content on the VLE cannot be rolled over into future modules.