Employers are Generally Entitled to Fruits of Their Employees’ Creativity

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Inventive employees can find it galling that copyright in their creative works generally belongs not to them but to their employers. As one case made plain, however, that is one of the sacrifices that has to be made in return for a regular salary.

The case concerned software that enabled forensic examination of computer hard drives. Its undisputed author launched copyright infringement proceedings against a company that formerly employed him on the basis that it had exploited the software without his permission. He contended that the software’s core functionality in part depended on development work that he had carried out in his own time or in his student days prior to taking up employment with the company.

Rejecting his claim, however, a judge observed that writing the software was, for a period of about two months, the principal task for which the company paid him. He would have understood, during another period, that his work on the software was integral to his duties. The judge upheld the company’s case that it owned copyright in the software because it was written by the author in the course of his employment under a contract of service.

The judge went on to find that the author had, by agreement, in any event assigned any copyright he might have had in the software to the company. For so long as he worked for the company, the agreement entitled him to a 7.5 per cent share of its sales of the software, later increased to 10 per cent. In rejecting his challenge to the judge’s ruling, the Court of Appeal ruled that, on a true reading of the agreement, it amounted to a valid assignment of copyright in the software.