While I agree with you, I also find Joel Spolsky's blog post on the subject to be a thought provoking view of “side projects” from the employers' perspective https://www.joelonsoftware.com/2016/12/09/developers-side-pr...
- When you hire a contract photographer to make some pictures, he owns the copyright on those pictures even though you hired him.
- The same goes for your programmer employees. They own the copyright on their work.
- Therefore you need to require your programmer employees to sign an agreement to sign their work over to you.
I am not a lawyer, but I'm pretty sure that's a gross misunderstanding of work for hire. If someone is your employee, they are doing work for hire and you own the copyright on their product. Photographers own their work because they were independent contractors and thus their work was not work for hire. I believe work for hire doesn't apply to patents, thus possibly justifying a patent agreement. But seriously, this (AFAIK) broken explanation is his opening justification?
Depends on how the two parties set up the deal.
If you want the copyright or to change the license in some way that gives you (the publisher) more rights, the agreement will spell out those details and you could up spending more (maybe a lot more). I sometimes work with professional photographers and for pre-existing work I pay for a non-exclusive license that costs less than a commissioned piece. I also use stock photography extensively which works in a similar manner.
For commissioned photography or design work I'll insist on owning the copyright and the agreement will spell out that it's not work-for-hire:
To the extent that the Provider’s Work includes any work of authorship entitled to protection under the laws of copyright, the parties acknowledge and agree that (i) the Provider’s Work has been specially ordered and commissioned by Publisher as a contribution to a collective work, a supplementary work, a translation, or such other category of work as may be eligible for treatment as a “commissioned work” and a “work made for hire” under the United States Copyright Act; (ii) the Provider is an independent contractor and not an employee, partner, joint author or joint venturer of Publisher; (iii) the Provider’s ’s Work shall be deemed a “commissioned work” and a “work made for hire” to the greatest extent permitted by law; and (iv) Publisher shall be the sole author of the Provider’s Work and the Work, and the sole owner of original materials embodying Work and the Work, and/or any works derived therefrom.
Of course, the photographer or designer can opt to reject these terms, or make additional demands upon the publisher (more money, the right to use images in their own promotional materials, etc.)
Not sure how it works with independent contractors doing programming.
I am a software developer, so I write software. I am employed full-time by an employer for which I (usually) write code, documentation and such, and still I own the copyright to each and every line of code or documentation or whatever I write. Simply because copyright in German law is non-transferrable. Even if I want to, I cannot sign over the copyright to anybody else, hence my employer couldn't make me sign it over to him in my employment contract. Instead, there's a clause that I grant my employer an exclusive and irrevocable right to use the work I create during my paid work time in any way he wants. This effectively leaves me with the copyright, but I don't have any rights to profit off of that work anymore, so that copyright isn't of much use to me.
I very much doubt that. Software isn't something that exists in a vacuum and even if you are the sole author of a program, it might contain or be based on trade secrets of the company.
Even if that's not the case, software doesn't generate profit on its own - you still need to sell licences or services based around it. Both of which are equally contributing to any profit a program generates.
Since it's still the employer who bears the entrepreneurial risk, there's a solid argument to be made against winning such a case.
I am curious, what rights have you retained with your work then? What are the corner cases where you might you still want exercise your copyright?
If you wrote code, the company isn't allowed to claim someone else did.
But remember that gets very murky when you are working in a team.
In practical terms this means mostly boopkis.
Nginx got in some legal issues because it started out as an employee’s side project: https://lwn.net/Articles/807324/
If Joel practiced what he preaches, and thinks no employees have a right to develop OSS software while on the company payroll, he needs to stop using nginx right now.
“This is where we are by default. This is the standard employment contract for developers, inventors, and researchers.”
"Before I start: be careful before taking legal advice from the Internet."
He got that much right, at least. I'm not going to argue every point, but as one with a broad range of experience on the topic I'd say there's enough wrong with that article to go find my advice somewhere else.