Who Owns Your Software? Part 2
In an earlier post, we discussed the potential for joint ownership of software, or any intellectual property for that matter, arising through inadvertence. A finding of joint ownership in cases where the parties were not in agreement as to the ownership and use of the intellectual property can lead to serious consequences. Another issue, less common but also of importance, is that of moral rights.
The Copyright Act defines moral rights as "the right to the integrity of the work" and the right, where reasonable in the circumstances, either to be named as the author or to be anonymous. Moral rights belong to the author or creator of the software, even if the author is not the owner of the copyright. For example, an employee who produced software for an employer would be the author and, while the employer would own the copyright, the employee owns the moral rights. Moral rights cannot be assigned but may be waived and can pass to heirs on the death of the author.
The right to the integrity of the work refers to any distortion, mutilation or other modification of the work or the use of the work in association with a product, service, cause or institution where the modification or use of the work is to the prejudice of the author's honour or reputation. This aspect of moral rights rarely arises in connection with commercial software. A claim that the author's honour or reputation is being prejudiced is most likely to arise in the case of music or art where the work is being used to promote some product that the artist considers offensive or where the work is modified in a way the artist considers unseemly.
However, the right to be identified as the author of software may be invoked. A software company trying to license its propriety solution would probably not be very happy to have to display the name (or, more likely, multiple names) of the various developers who wrote the application.
As a result, a standard contract term in the software industry is a waiver of moral rights, whether or not there is any concern about ownership of the intellectual property. As with the case of potential joint ownership, it is best to get the waiver in advance of the development of the software or other intellectual property. That way, the owner (who is usually paying the costs of developing the software) is free to market and exploit the solution as it sees fit and without having to explain why other people's names are set out in the attribution notices.
The comments in this article are intended as general information only and are not to be relied on as legal advice or an opinion applicable to your particular situation. For further information, please contact Bruce Farrend at Farrend Law.