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I'm afraid I can't access the judgment in the case so only have a brief summary but it would provide more detail on the specifics of the case and how close an e
by grabeh 13y ago
I'm afraid I can't access the judgment in the case so only have a brief summary but it would provide more detail on the specifics of the case and how close an employee's duties have to be to the employee's activities in their spare time. I'll try to get hold of a copy though. I am only really interpreting the above case on the basis of a brief summary and I suspect there were aggravating/extenuating circumstances in the case.
However, the law doesn't operate in a vacuum. I suspect an employer is far more likely to lay claim to a piece of software which an employee claims was produced solely in his spare time than to lay claim to a house built by a carpenter it employs.
Further, for it to become a problem the employer has to become aware of the employee's work in their spare time. I suspect many problems arise where an employee creates a useful tool in their spare time, then uses it in their day job. The employee then leaves, but wishes to revoke rights in the tool, whereupon the employer then asserts that it owns the tool in question.
If however, the carpenter produced house plans as part of their work, then produced a separate plan in their spare time, the employer could potentially lay claim to that plan on the basis of the above case. If the carpenter produced a house to those plans they would likely be protected by s.51 CDPA '88 (but then unregistered design right infringement becomes an issue) but the underlying infringement of the employer's copyright would be still be an issue.
At the same time, the activities of the carpenter may breach other obligations in the employment contract, such as to not to be engaged by a third party whilst they are employed (this is of course irrelevant if for example the carpenter is constructing their own property to live in).
On your final point, an employee is not a consumer who has protections from unfair terms. If I as an employee are able to negotiate a remuneration package which reflects an assignment of all prior/future work then I can do so. As an employer I would have doubts as to whether such a transfer was possible/viable but that is not the same as saying it would not be enforceable.
- pyre 13y agoI say that it's not enforceable because: - There has to be a meeting of the minds for a contract. If a contract is tipped too far to one side, it can be said that there is no consideration. In this example, if the employee is only getting what could be considered standard market rate for their employment as a software developer, the idea that all future work in software development (even past the term of employment) will belong to the company is absurd. The company is basically saying, "after you work for us, you are no longer allowed to work for anyone else as a software developer, ever." - It may not be possible to grant copyright over all past work because it may be owned by a previous employer.
- grabeh 13y agoI agree to an extent. If I'm offered standard market rate then this will be very different to a situation where a developer has factored into the price the assignment of all IP. I agree that in your case, the developer would be well positioned to argue that an attempt by the employer to enforce should be thrown out as a restraint on trade (at least under UK law). On the second point, the contract isn't unenforceable as a consequence of one party fraudulently/mistakenly attempting to give away something they are not in a position to. If I'm the company, I take an indemnity from the developer which means I will be covered (well subject to the insurance/assets of the developer) if a previous employer attempts to assert its rights over IP I'm using. In the same way as it's the employee's decision to assign all rights, it's the company's decision to accept the assurances of the employee that the employee is in a position to assign.
- pyre 13y agoYou're talking about this as if employee contracts are usually a negotiation. In many cases, you either sign "The Contract" / "The Agreement" or you don't get hired. If a company asserts that all employees must sign such a contract, I feel that it's pretty obvious that said company is just trying to make their contract as broad as possible to "cover all of the bases." They want to (attempt to) close all possible loopholes by essentially claiming "all your base are belong to us." How many software developers could even sign a contract that assigned over all IP rights to all IP that they ever created?