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Losing My Software Rights?

kdawson posted more than 5 years ago | from the work-for-hire-but-not-for-you dept.

Software 440

vintagepc writes "Having written a piece of software as part of my research employment, I now face (and will later face again, with other software I've developed), the issue of intellectual property rights. The legal department stated that if I was paid by the University to produce the software, the University would own all rights to it. This is supposedly black and white, not a gray area. However, I was hired as a research student, not directly by the University, and also via a research award (NSERC). Furthermore, it turns out that faculty members here, in fact, retain their intellectual rights to any software they write. At this point, I can still back out, since I have not explicitly agreed to the conditions, but this decision must be made soon. So, I turn to the Slashdot community to ask: Are they allowed to completely strip my rights to the software? If anyone has had any similar experiences, then what was the outcome? Additionally, is this a normal action, or do I have some maneuvering room?"

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440 comments

Negotiate. (5, Insightful)

bluefoxlucid (723572) | more than 5 years ago | (#25970711)

All you can do is negotiate. What you sign away is law.

Re:Negotiate. (-1, Offtopic)

Anonymous Coward | more than 5 years ago | (#25970765)

I hereby declare to be mandatorily used as testobject for female pleasure.
Signed,
yours truly
AC

PS: It's signed, it's the law.

Re:Negotiate. (1, Funny)

Anonymous Coward | more than 5 years ago | (#25970957)

they will crank you full of amphetamines and use you as a vibrator for female elephants

Not always. (3, Insightful)

inTheLoo (1255256) | more than 5 years ago | (#25970811)

Contracts can't violate laws, so you can't sign away your rights. They can't, for example, appropriate code you've written before and other people's code you happen to use.

That being said, Look Out! Don't sign anything you don't agree with if you can avoid it. What you have not signed can't be held against you. Talk to a real lawyer, not the mickey mouse guy representing the University against you.

Guess what... (4, Insightful)

Creepy Crawler (680178) | more than 5 years ago | (#25970763)

Talk to a fucking lawyer.
Or back down.

attorney - and you're probably wrong. Fail. (5, Interesting)

arete (170676) | more than 5 years ago | (#25971007)

several posts say talk to an attorney, in detail, when they can READ your contract, and they're right. IANAL. However, since this is the Internet, I want to take this opportunity to point out several substantial flaws in your submission.

0. Posting here and not getting an attorney. Fail.

1. A purely ownership and non-personal right like this, it's very unlikely there's any prohibition against you signing it away. (Unlike, e.g. some noncompetes which are SOMETIMES unenforceable.) Fail.

2. If you sign this when you obviously (and demonstrably - you posted it here!) thought they intended it to mean you had no ownership, the courts will not look kindly on you turning around and saying you don't believe that. That's called 'bad faith'. Even if the contract WAS weak, if it's clear that both parties understood the same intent, usually that's what happens.

And there's a good reason for that. Knowingly signing that when you clearly believe they mean that if you don't intend to carry it through makes you a liar.

Fail.

3. That the faculty, who have a totally different contract, get to keep their work has no bearing on your contract. Fail.

4. The faculty don't even meet the standard you set out - which is 'if you're paid TO develop software' - which they aren't. They're paid to uphold the educational mission of the institution and do their research. The actual software is (at least contractually) secondary.

I'm not telling you not to take the job -

I only see two glimmers of hope here:

- If the UNIVERSITY's contract with NSERC specifies something different, you count point that out to them.

- I don't know if this is in your goalset, but depending on the U, if you WANTED to open source your project (whatever license) the U may allow that - and you MIGHT be able to get them to approve allowing that BEFORE hiring you. YOU will still own none of it. They'll own all the rights to sell a closed source version, etc., and they could un-open-source their future versions. (Which, if you were GPL, no one ELSE could legally do) But they can't exactly 'unlicense' the code they agreed to release.

Re:Guess what... (4, Insightful)

DustyShadow (691635) | more than 5 years ago | (#25971101)

Not many "research students" have enough money to pay an attorney $250-350/hour to look over their employment contracts.

OPEN SOURCE (3, Informative)

kieblerh (1414625) | more than 5 years ago | (#25970769)

Do what all the other cool grad students who are changing the world are doing and open source it!

Re:OPEN SOURCE (3, Informative)

EvanED (569694) | more than 5 years ago | (#25970803)

You do realize that if you don't own the rights because you signed them over to the university, you can't open source it, right?

Do you want to Open Source it? (0)

Anonymous Coward | more than 5 years ago | (#25970771)

You haven't given us enough information and it's a subtle legal issue to do with expectations and case-law so consult a lawyer.

If you were to talk about this with the university then then you might learn that there's no problem but then you might indicate that you're going do claim ownership and cause more trouble.

Don't ask Slashdot for any legal questions.

Coming here is already a wrong move (3, Insightful)

LrdDimwit (1133419) | more than 5 years ago | (#25970787)

These are all very good questions, but you should not be asking Slashdot, you should be asking your attorney. Not having one is no excuse. For something like this, with the ramifications being as big (and permanent) as they are, you need to get one.

Re:Coming here is already a wrong move (1)

bigjarom (950328) | more than 5 years ago | (#25970977)

Signing a contract granting them full ownership of your work was the the first wrong move, unless you didn't do that. Then there's nothing to worry about; they're just trying to take advantage of you.

Re:Coming here is already a wrong move (1, Insightful)

LostCluster (625375) | more than 5 years ago | (#25971071)

He talked to one who works for his university. The lawyer told him the answer he didn't want to hear. He's coming to Slashdot for a pity party.

Re:Coming here is already a wrong move (1)

DustyShadow (691635) | more than 5 years ago | (#25971119)

Haha...when you get sued do you ask the attorney who sued you what you should do? Good luck.

Re:Coming here is already a wrong move (2, Insightful)

QuantumRiff (120817) | more than 5 years ago | (#25971183)

Of course, the lawyer doesn't work for his best interest, the lawyer works for the colleges best interest, they are paying him. And come on, the GP, telling a COLLEGE STUDENT to go talk to a lawyer.... How can they afford one? Maybe if their school has a legal department, they can have some students or faculty help them out..

Well... (1)

katterjohn (726348) | more than 5 years ago | (#25970791)

Tell them you feel strongly about retaining your rights over your software and see if they maintain that it's required to transfer rights to them. Get the facts from them. If they say you have to, but you really don't want to, don't take the job. Of course, make sure you get it in writing.

Perhaps... perhaps not... (2, Interesting)

Panaflex (13191) | more than 5 years ago | (#25970799)

Well, it's all pretty black and white there... is the university paying you? Does the check say "Harvard University" or does it say "HRUMPTHING Project, LLC?"

I mean it's not like your playing football where you win a T-Shirt and the university takes home 100's of millions in TV revenue! You can speak to your employer about what you want out of the deal and see if there's any possibility.

But just like football - chances are you're going to get squat for this - and hope for glorious rewards in the after-life (aka.. the real world).

Re:Perhaps... perhaps not... (1)

conlaw (983784) | more than 5 years ago | (#25971253)

If they say you have to, but you really don't want to, don't take the job.

You can speak to your employer about what you want out of the deal and see if there's any possibility.

While it's a /. tradition not to RTFA, you should at least RTFS. He's already taken the job and produced the software--and it appears that he has already discussed this with corporate counsel. That discussion was not wrong per se, but it may well have led to in-house counsel having set their minds on the view they espoused during that discussion.

As several people have already said, "Do not discuss this anymore with University personnel" (this includes the legal department, the IT folks and the professors that you believe have a different deal). Find an attorney who specializes in intellectual property contracts and take her copies of everything you signed in relation to this research job. If there's any possibility of further discussions with the University, let your attorney handle the matter.

And in the future, take all those contracts to an attorney for review before you sign them. A review beforehand will have some cost, but nowhere near the amount of costs that will be necessary to make exceptions or changes to contracts that you have already signed and worked under.

Seriously? (5, Insightful)

p14-lda (517504) | more than 5 years ago | (#25970807)

Ok, we all pass this cross roads as developers. You are hired for a purpose, and if your job is to produce software for that company then they own the software.

If you produce it in your free time and it isn't related to your work, then the company is unfairly trying to take your work.

If you are simply doing what they ask you to you are doing your job.

The question here is, did the University get the grant or did you? Would you have been able to get the grant if you weren't at the university because of the credentials of the institution? Were you hired as a research associate into an existing area that is managed by someone else?

If so, put your ego aside and accept that you are growing as a professional.

Now if you have the credo to be a principal researcher then find an institution that will provide you the room you want to have more ownership of your IP.

Too often we think we are the only ones who can do what we do when in reality there are many talented developers out there.

We have to accept as a profession that we are driven by business needs at some point.

Re:Seriously? (4, Insightful)

williamhb (758070) | more than 5 years ago | (#25971117)

Ok, we all pass this cross roads as developers. You are hired for a purpose, and if your job is to produce software for that company then they own the software.

Actually, it's rather different for university researchers, such as the original poster. We are employed to research. If we are in computing, then part of that research might involve writing some code, but many of us are not simply employed "to produce software". (Though some are.) As academics, there is a much greater expectation of being able to continue our research at another institution (universities are not in product competition, but are expected to cooperate -- it's mostly public funding after all). A history researcher can reasonably expect to continue his history research if he moves post or goes on sabbatical. As can a social scientist. For a computing researcher (or for microbiologists), however, the IP of the written code becomes a complicating factor. If one university claims copyright, but the only researcher involved moves to another university, it could completely stymie any research progress. So, for instance, Cambridge University does not usually claim copyright over software its researchers produce -- this isn't so much a matter of commercialisation rights as of academic freedom. It's no wonder then that the GPL, BSD licence, and Creative Commons all came out of university environments, not the commercial sector.

Something the original poster has not mentioned is why this decision "must be made soon". Is it because he is signing a new contract (it would be unusual for an employment contract with a university to claim ownership of code predating the contract), or because he's at loggerheads with the IP department?

 

Hire a lawyer, you idiot. (0)

Anonymous Coward | more than 5 years ago | (#25970809)

(see topic).

Better to ask forgiveness (1, Informative)

PenguinX (18932) | more than 5 years ago | (#25970817)

First off, I am not a lawyer.

Second if you haven't signed a contract that gives your intellectual property / inventions / authorship / works to the University then you own it, plain and simple. You as an individual have to willingly and explicitly relinquish your rights, they can't just take them.

Meanwhile just release whatever you want to the public under whatever license you want. If they complain, do what everyone else does and sarcastically feign ignorance and say "well, we never agreed to that".

Sad to say it, but welcome to the real world. Software engineers who contribute to open source have to deal with this sort of stuff very frequently because corporations typically have a blanket "inventions" contract that one must sign to work there - even the good ones - and yes it does suck.

Cheers
-b

 

Re:Better to ask forgiveness (1)

LostCluster (625375) | more than 5 years ago | (#25971015)

Second if you haven't signed a contract that gives your intellectual property / inventions / authorship / works to the University then you own it, plain and simple. You as an individual have to willingly and explicitly relinquish your rights, they can't just take them.

Contracts don't have to be signed. If you cash a check, and the university says the reason they gave you the money was to buy the rights, you're going to have to prove otherwise.

Re:Better to ask forgiveness (1)

Courageous (228506) | more than 5 years ago | (#25971047)

Second if you haven't signed a contract that gives your intellectual property / inventions / authorship / works to the University then you own it, plain and simple.

You are wrong about this. In most states in the United States, and I should imagine many other countries, you do not own the copyright for the things that you are paid by your employer to create. This falls under a concept called "work for hire". No specific terms need be written in to your work contract for the employer to own the copyrighted material, it is the default.

C//

Re:Better to ask forgiveness (1)

Antique Geekmeister (740220) | more than 5 years ago | (#25971137)

What makes you think he wants to release this software to the public?

Many students and grad students have great ideas for cool software that they think will make them lots of money someday. A few are even right: putting it out there open source can destroy the plans for proprietary and protected income that this student could expect for his work, if he can retain control over it in spite of the university's IP policies.

There are plenty of cases where publication under the GPL, for example, would protect it. A BSD license would not: enhancements written for the university would remain private, even if the university turned around and sold it as a product. Some companies are based on this model, such as MySQL.

Re:Better to ask forgiveness (1)

westlake (615356) | more than 5 years ago | (#25971167)

Meanwhile just release whatever you want to the public under whatever license you want. If they complain, do what everyone else does and sarcastically feign ignorance and say "well, we never agreed to that".

You are entry level in your chosen profession. You have your first big research grant. You have contacts in Big U. Don't blow it off! The real payoff comes down the road.

Why? (2, Insightful)

Quasar1999 (520073) | more than 5 years ago | (#25970819)

Why do people as Slashdot these questions... GET A LAWYER!

Re:Why? (1)

jellomizer (103300) | more than 5 years ago | (#25970975)

They were hoping to get a huge outrage and getting them to back down from huge public support... For Free... Lawyers cost money.

Re:Why? (2, Insightful)

at_slashdot (674436) | more than 5 years ago | (#25970985)

It's a kind of trolling. Ask a hot-button issue on slashdot to make waves. Don't know what's the pleasure, the 15 minute of Internet fame?

Re:Why? (5, Insightful)

PhotoGuy (189467) | more than 5 years ago | (#25971045)

Two things:

First: Lawyers are expensive. Very expensive. Most working people can't afford them very well, much less research assistants or students.

Second: The average city isn't exactly crawling with competent Intellectual Property lawyers. I would say the typical lawyer would say "huh" and maybe get you some boilerplate legal templates to use, and not really help you much beyond that.

I say stand your ground if you have agreed to nothing so far. Losing you completely gains nothing for them, they will cave in. I've never found it hard to allow organizations or institutions to allow me to keep rights to my software, as long as they get to use it.

Normal (5, Informative)

BountyX (1227176) | more than 5 years ago | (#25970821)

According to NSERC no (NSERC Grant Award IP Policy) [nserc.ca] Specifically, "The Agencies do not retain or claim any ownership of, or exploitation rights to, intellectual property or copyright developed with grant funds. These rights are owned by the Institution and/or by the inventor." You need to check with policies you have in place with your institution. Many universities do claim IP and it is usually addressed in the student handbook, or somewhere in university policy. Look at stanford they own google's page rank patend.

Re:Normal (1, Interesting)

Anonymous Coward | more than 5 years ago | (#25971239)

How can this guy be an RA if he can't even research this basic information? Good luck in school buddy!

You are allowed, they are allowed (3, Interesting)

markdavis (642305) | more than 5 years ago | (#25970823)

> Are they allowed to completely strip my rights to the software?

Um, they are allowed to ask for anything they want (that is not illegal) in a contract, and you are allowed to either sign it or not. If you are paid by them and write the software on their time and sign a contract saying they own it, you don't HAVE any rights for them to "strip".

You are also allowed to negotiate, although I wouldn't hold my breath...

don't do it (5, Informative)

sdxxx (471771) | more than 5 years ago | (#25970839)

Yes they can take away all your rights to the software, but no you shouldn't allow them to do it.

First, I've been a grad student at one university and a professor at another, and I've always avoided signing these agreements. It turns out that if you just avoid signing them and aren't too confrontational about it, you can easily slip through the cracks.

Second, you should talk to your professors and see if they will allow you to develop software publicly under some irrevocable license like the GPL or BSD. With revision control software like git, it's pretty easy just to throw the repository on your home page and make everything you do available to the world (including yourself) on a royalty-free basis. Import some GPL-ed third-party code into your project for extra protection.

Finally, sometimes professors do try to exploit grad students for the purposes of launching their startup companies, etc. If you feel that you are going to be in a position where your research is compromised (for instance because your results are no longer reproducible by the community), then you should find another research group to work with!

Re:don't do it (1)

Courageous (228506) | more than 5 years ago | (#25971059)

He can only get it GPL'd if it is A) his to begin with, or B) he gets a lawful agent of the university to authorize him to do so. If he, acting alone, merely applies a GPL label to it, this will do nothing, because he is not acting with legal capacity to surrender the rights in the first place. Just FYI.

publish, so you do not perish (0)

Anonymous Coward | more than 5 years ago | (#25971123)

I agree. While there are lawyers at every institution who seem to believe that protecting intellectual property rights is ALWAYS good for the institution, often it is not. The purpose of your research fellowship is to produce knowledge, and it ain't knowledge until it's published.

In the US, at least, if you publish the algorithm before it is patented, it is much harder to "protect" the property. And it is a very unusual University that has policies against research fellows publishing papers. Moreover, some journals have strict policies about the availability of software that is described in their publications. So, by doing what you are paid to do -- research and publish -- you gain considerable freedom.

Re:don't do it (1)

CatOne (655161) | more than 5 years ago | (#25971205)

This assumes, of course, that he didn't sign something in the first place. After signing an agreement/employment contract and later writing all the code, is NOT the time to "negotiate" this.

Ask a lawyer (0)

Anonymous Coward | more than 5 years ago | (#25970867)

Details are different in every case, find a lawyer if you're going to get worked up over it.

Are you going to make money? (1)

simonbp (412489) | more than 5 years ago | (#25970871)

It's usually not an issue if you don't intend to commercialise your software, especially if you explicitly release the software as being free for non-commercial use...

Simon

Maybe read your contract and see what is says??? (1)

Web-o-matic (246295) | more than 5 years ago | (#25970879)

It's really not that hard: read your employment contract, and if you don't understand it, talk with a lawyer. Or better yet, post your employment contract here, and get the benefits of the slashdot community's deep knowledge of contract law :)

Legal services (4, Informative)

Dzimas (547818) | more than 5 years ago | (#25970885)

You're in Canada, right? There's a reasonable chance that your university has a law department. Visit and find someone there who can answer your question based on their expertise in IP and contract law. After all, you wouldn't ask Slashdotters about excising intramedullary spinal cord tumors, because most of us don't have a firm background in neurology. What makes you think we're any more qualified to provide a meaningful legal opinion in your jurisdiction?

Re:Legal services (1)

bedmison (534357) | more than 5 years ago | (#25971111)

But don't be surprised if the a lawyer/law school faculty at your university doesn't want to give you advise. Most student legal service offices at universities won't help students where one of the parties in the dispute is the university itself, because of the conflict of interest this presents.

It depends (0)

Anonymous Coward | more than 5 years ago | (#25970901)

As it has been said on other topics you should consult a competent lawyer rather than slashdot. However, a written agreement that said that the university agreed that you rather than they owned the copyright would probably settle the issue.

If the university views that they own the copyright and you also claim it, then the university could ask a court to settle the issue. In the most general terms it would depend on whether you were an employee of the university and this was during the normal course of your employment. If this was separate from your normal employment you would probably hold the copyright, otherwise your employer would, assuming that there was no agreement that said otherwise in either case.

Payment for creation of copyrighted material (outside of employment) does not generally transfer the copyright to the payer, unless there is a separate signed agreement to the effect that the work is a work for hire (a term which does not apply to software).

Just do the fucking job (0)

Anonymous Coward | more than 5 years ago | (#25970903)

Stop whining and do whatever researchers do, get paid and move along. Maybe you can learn something about the real world.

Re:Just do the fucking job (0)

Anonymous Coward | more than 5 years ago | (#25971025)

Mod parent stupid. We should all be content with a crap life. We should never try and improve things and we should never never never try to make the world a better place.

simple (0)

Anonymous Coward | more than 5 years ago | (#25970909)

just rename the variables

Yep. they can. (3, Interesting)

jwiegley (520444) | more than 5 years ago | (#25970917)

As a research student you are "hired" by the university. End of discussion. Your tuition and stipend are paid to you from research grant money that is owned by the university/professor.

Faculty members at some universities may retain their intellectual property rights. This is because there is a separate contract negotiation that takes place between faculty and universities. You [the student] are not part of this agreement.

At every PhD institution I know of, Teaching Assistants and Research Assistants are employees. In fact, third-rate employees. You get no health benefits, you get no retirement benefits and you get no intellectual property benefits. Basically, you get no benefit other than an effective scholarship.

You're screwed. They own your software. It is black and white.

Re:Yep. they can. (1)

EvanED (569694) | more than 5 years ago | (#25971077)

At every PhD institution I know of, Teaching Assistants and Research Assistants are employees. In fact, third-rate employees. You get no health benefits, you get no retirement benefits and you get no intellectual property benefits. Basically, you get no benefit other than an effective scholarship.

University of Wisconsin gives (the option of) health insurance and also lets you keep copyright on your work. No retirement benefits though, and if you have something potentially patentable you have to tell the university and help them file a patent if they want one, in which case it's theirs. (Proceeds from the patent in part go to the inventor in royalties and also help fund further research.)

What you say isn't universal.

Re:Yep. they can. (0)

Anonymous Coward | more than 5 years ago | (#25971211)

As a research student you are "hired" by the university.

Not always, it really depends on what "research student" means.

Faculty members at some universities may retain their intellectual property rights. This is because there is a separate contract negotiation that takes place between faculty and universities. You [the student] are not part of this agreement.

At the two schools I attended, the IP policy applied equally to profs and students.

At every PhD institution I know of, Teaching Assistants and Research Assistants are employees.

Really? At every school I've attended (McGill & Toronto), TAs are employees, while RAs are not. This comes up at tax time, when you want to put your income in the right category.

More importantly, the health & safety responsibilities & liabilities are very, very different for employees and RAs.

You get no health benefits, you get no retirement benefits and you get no intellectual property benefits. Basically, you get no benefit other than an effective scholarship.

See, the law takes a dim view of that. While no law requires an employer to pay health benefits, either you're an employee, in which case the employer is legally required to make the appropriate deductions as they would for any employee, or you're not. If it's a scholarship, then they are taxed differently, and the withholdings are different.

The legal status is very different. If it's employment, then all sorts of legal rules apply, depending your jurisdiction. You may be entitled to unemployment benefits, vacation pay, mandatory breaks, etc.

Suck it... (0)

Anonymous Coward | more than 5 years ago | (#25970925)

Now is not the time to complain.

Typically (1)

QuantumG (50515) | more than 5 years ago | (#25970929)

Universities get given grants and researchers get hired by the university using that grant.

Your case may be different, but I doubt it.

Just rewrite it.. they don't own the ideas.

Par for the Course (1)

saterdaies (842986) | more than 5 years ago | (#25970931)

First, universities always treat faculty differently. You're just a student researcher. Don't expect faculty rights. It's crappy that's the way the world works, but it does.

Most places consider software written while being paid for by them labor for hire. As such, they own what you create. In this case, the intellectual property rights to the software. This isn't that different from a construction worker building a building - he doesn't get to take what he made when he leaves. The difference is that software is infinitely reproducible in a way that doesn't harm the original.

Still, this is par for the course. Work for Google, Google owns the code you write and you can't take it with you when you leave. Work for Microsoft, MS owns the code you make and you can't take it with you when you leave. Work in this position, the University will own the code you write and you can't take it with you when you leave.

You might be able to negotiate something nice - Universities are non-profits and if you argue for an open-source license they might be genuinely receptive. If you want to push, think of it from the University's standpoint: does it help the school (to give you the code)? does it promote the school's mission (to give you the code)? does it promote the school (to give you the code)? That's unlikely, but under a FOSS license it might promote academic research and the school might like the openness of it and the possible free promotion they'd get if it caught on.

Re:Par for the Course (3, Insightful)

jellomizer (103300) | more than 5 years ago | (#25971049)

Universities are non-profits
You seriously believe that? They only get taxed like that but for some reason they make a lot of "Excess-Revenue". Which will go to a new football field or a building. Then they will still think that after paying 30k in tuition that you owe them and you should donate money to them.

Even if you loose. (1)

jellomizer (103300) | more than 5 years ago | (#25970935)

That cannot take your own intellectual property that is in your head. All the lessons you have learned making the project is still in your head. Nothing is stopping you from making some derivative work based on what you learned. I have worked in Consulting for a decade and all my work I do at work belongs to the customer not me. So I am not about to get a sympathetic on your situation. There is a lot of code that I cannot reuse. However with my lessons learned with each project I tend to reuse my ideas and make new code to do similar things. I bet if you do it the second time around then it will often be better then the first as you may not have half you code bringing you to a wrong solution then to have a patch to bring you to the working method.
Computer Programming code is just stuff for the computer to translate into a bunch of instructions to run. It really isn't free speech of your ideas. That can be represented in more formal less technical ways (good specs, written documents etc...). Your ideas are yours, just like if you made a physical object and the college decided to keep the object. You still know how you made the object and can make it again or even better.

LOSE!! (0)

Anonymous Coward | more than 5 years ago | (#25971187)

It's spelled:

LOSE

Not l- oo -se (as in moose)

LOSE

as in "poo's"

LOSE

LOSE

LOSE

Deal or No Deal (1)

LostCluster (625375) | more than 5 years ago | (#25970941)

The default assumptions are that if you're paid as an employee (IRS form W-2 sent to you at the start of a new year) or using their resources such as computers and office space then you are writing a work-for-hire and they own the copyright.

If you are being paid as a contractor (IRS form 1099) and using your own equipment and place to generate the software, then you own the copyright and are licensing a copy to them.

Of course, this can be changed by a specific agreement.

Bottom line: If you plan on keeping any rights, make sure there's a document that says so. If you can't come to an agreement, don't take the job.

Ts and Cs (0)

Anonymous Coward | more than 5 years ago | (#25970961)

Depends on the terms and conditions of your contract, and the terms and conditions of any other documents that your contract refers to. If you were employed by NSERC it depends on your contract with them.

It is very common for universities in the UK and Australia to include terms in contracts that include transfering all rights to any discoveries or inventions to the university. That applies to students, employees, researchers, anyone on projects sponsored by the university, etc.

If you're not sure, hire a solicitor or whatever legal advice you have to hand.

Why bother? (0)

rastoboy29 (807168) | more than 5 years ago | (#25970963)

Is your code really so special?  If you could make millions with it, why didn't you just do that in the first place?

I KNOW YOU FROM UWATERLOO (0)

Anonymous Coward | more than 5 years ago | (#25970987)

lowercase lowercase letters
I KNOW WHO YOU ARE!!!
lowercase lowercase letters
*POINTS FINGER COVERED IN BOOGERS*
lowercase lowercase letters

Some basic guidelines... (5, Informative)

gillbates (106458) | more than 5 years ago | (#25970999)

Of course, this is slashdot, and IANAL. But having a little experience, this is my take on things:

  • The bad news: you probably cannot afford a legal battle with the University, especially if they're your sole source of income. Think about the worth of what you created: does it have a commercial application? Would a business sue for the rights? If not, even if you win a court case, you'll end up spending your lawyer's fees to retain the rights you already possessed in the first place.
  • The good news: you might be able to convince the University to release your code under a GPL or BSD style license, especially if it has little or no commercial value.
  • If you created the code on your own time, with your own equipment, for your own purposes, and have not signed any agreements to the contrary, you likely own the rights. However,
  • If the code you created had a purpose specifically related to the work you were performing for the University, or
  • If you relied on their equipment to produce the code, and/or
  • If you produced the code during established working hours -
  • then the University probably has a good legal claim to it.

If your creative duties were supervised by the University - that is, they told you what program to write, and how to write it, and your duties included writing code - your chances of winning a court case in your favor are very small.

Teachers and professors are in a different category because, generally speaking, they are not producing a "work for hire" - but are instead hired for their role as a teacher or lecturer. The University does not retain creative control over their work; does not proscribe what is produced; and does not require them to produce code as part of their duties. That is, the code is incidental to their work. Thus, they can often retain copyright of the code they produce.

From your description, this does not sound like the case at all. Instead, from your terse description, I, and a court, could reasonably conclude that you were hired to write code (among other duties), and hence, your employer owns the rights to it.

Unless you have a well-documented case to the contrary, it would be safest to assume your University's legal department is correct.

Talk to a real lawyer please (0)

Anonymous Coward | more than 5 years ago | (#25971001)

Talk to a real lawyer please

on copyright (0)

Anonymous Coward | more than 5 years ago | (#25971005)

Copyright always belongs to the creator unless prior agreements were signed, or the rights have explicitly been moved afterwards. It's not relevant where the work was made - e.g. on university equipment - unless (again) you signed a document which states that using university equipment/facilities moves the copyright to the uni.

Copyright isn't something a third party can claim - it has to be granted by the creator, either before starting on it or afterwards. Not that this is irreversible: once you granted it it can't be undone.

Software rights (1)

eric31415927 (861917) | more than 5 years ago | (#25971009)

If your university tasks you to solve a problem and you write code to solve that problem, does your university own the code?

The answer likely depends on your answer to the following question: Are you self-employed, or are you an employee? This is a matter of fact and is determined by conditions of your contract.

If you are an employee, your goose is cooked.

If you are self employed, then you maintain code ownership.

When arranging future contracts with your university, you should ensure that you are self employed.

Compromise (0)

Anonymous Coward | more than 5 years ago | (#25971011)

Agree to them owning the rights. But insist that any such software be licensed under the GPL. They get what they want, and yet everyone can still use the software later on.

Unless, of course, you were planning on keeping it closed-source?

Re:Compromise (1)

jellomizer (103300) | more than 5 years ago | (#25971097)

Why would they want to compromise? They own the code. If the college didn't want it GPL then they won't make it GPL. The trick is to use some Obscure GPL library in your code and cause it to virally be GPL and force them to keep it GPL.

the Australian (in)experience (0)

Anonymous Coward | more than 5 years ago | (#25971021)

Here in Oz, it is a normal course of action by a University to retain joint ownership of any created intellectual property.

You do retain ownership, but so does the University.

both standard & sucky (0)

Anonymous Coward | more than 5 years ago | (#25971023)

From what I've seen in my own experience as a graduate research ass't in computer science, it's pretty standard practice to require everyone less than a professor to relinquish all rights to their code and work in general.

That being said, it totally sucks and I would try to very politely fight it if I were you.

I had to rewrite a bunch of code because of this issue, which actually turned out to be a really great and fun challenge, but was a bit of a pain nonetheless.

~ Anonymous Howard

In a global economy (0)

Anonymous Coward | more than 5 years ago | (#25971031)

If not you some Chinese or Indian grad student will write the same thing for one-tenth the cost.

it all belongs to them (0)

Anonymous Coward | more than 5 years ago | (#25971035)

'Work for hire' contracts where they retain the intellectual property are the norm. Exceptions for faculty (which it sounds like you are not) are the norm. Grant money almost always flows (legally speaking) through the university--PI's who write grants and hire grad students not withstanding. Even folks in completely soft money offices (100% funded by outside sources) are still (usually) 100% university employees and bound by university contracts.

You can ask for a different contract. They will likely look at you funny and route you to someone else until you give up. You have no leverage.

What is your status? That is your answer. (0)

Anonymous Coward | more than 5 years ago | (#25971037)

Are you an undergrad student, grad student, postdoc, or something else? Are you paid on a fellowship, research grant or something else?

You say you were "hired as a research student". What is that? Are you an employee or not?

You say "not directly by the University". Either you work for the university or you don't. Do you work for one of the affiliated institutes of the university?

You say "and also via a research award". That doesn't answer the question of are you an employee or not.

Dig out your pay stubs. Are you paid on a T4? Then you are likely an employee. Are you paid on a T4A or one of the other T4 variants? Then it is likely you are not an employee (even if you might be treated like one).

"The legal department stated that if I was paid by the University to produce the software, the University would own all rights to it."

Not true. They may have said if you were employed to produce the software, then it belongs to the university. Paid & employed are very different. Lots of people are paid by universities without being employees.

Look up your school's IP policy. Often they specify a sharing of rights between the school and the student/researcher/professor. Why? If the school keeps all the profits (if any), then the student/researcher/professor is highly UNMOTIVATED to produce intellectual property.

Further, having been involved with patents at the University of Toronto, I have to tell you that the majority of intellectual property doesn't make any money whatsoever. Looks good on a CV though. You might be an exception.

What's the goal and what's it worth? (0)

Anonymous Coward | more than 5 years ago | (#25971069)

What's your goal? If it's to release it under some open source license, I imagine that wouldn't be hard unless it's really worth some money and the university knows it. If you want to commercialize it, that may be another matter completely.

I've worked on research projects at UofT under NSERC awards. They were released as BSD or (L)GPL. Nobody talked to any legal departments because the projects probably weren't worth actual money to us (not that we cared either way, really) and, as tools or systems for research, the expectation by the academic community is often access to the code and we were happy to oblige.

If you were paid for it, I suspect the decision isn't yours to make, but within a university environment I imagine it's pretty easy to open it up, if that is indeed your goal.

Professors keep IP rights? Sounds like Waterloo. I'd think they'd be pretty progressive in this area.

release it in the wild (0)

fermion (181285) | more than 5 years ago | (#25971073)

It seems kind of standard stuff. As a student, it seems most of your stuff belongs to the professor sponsoring you. For instance, if you help create data for an article, is that article yours? Not an exact thing, but I have never seen an assumption that students work as part of the research is theirs to control. That would just lead to anarchy. Some student would inevitably blackmail the school into using code that they paid for. Not only the school, but also the canadian tax payers through the grant.

I know with facebook, and yahoo, and even MS, everyone thinks the code they write in school is going to make them a millionaire. Maybe it will, but, seriously, is that the case. It would be hard to state the amount of research code me and the group I worked with created. Signal decomposition, algorithms to assemble and decode telemetry, data acquisition when it required homemade custom interfaces, full robotic controls for 20 i/o systems, full windowing systems before MS had MS Windows, abstraction layers for output. You name it. It was good fun and good practice, but the reward was the opportunity to have time to do such things, to test such things in a relaxed environment, to learn from people who knew more than we did.

If there is a worry about about the code being commercialized or otherwise misused, release it to the wild. Publish it in a journal. Put in on sourceforge. Mail a copy to 100 friends. Don't get caught in the IP fiasco that is ruining the world, where every little thing is clutched to like it is the only thing one will ever create. And, especially, don't pay attention to any of the bullshit posted on /., including this.

Who signs the check? (0)

Anonymous Coward | more than 5 years ago | (#25971081)

If they are paying you, I don't think they have much leverage.

Grad student? (1)

kakapo (88299) | more than 5 years ago | (#25971095)

Are you a grad student? Even if you coded it, and even if you believe it to be "your" work, you probably can't claim complete ownership, since there was likely some input from your advisor and perhaps other people in the group.

My students regularly write code, but my input is almost certainly present in the choice of problem, and usually in algorithm choice, design, debugging and verification. But the student would write close to 100% of the code.

In practice, very few codes written for academic purposes can be commercially exploited -- is this a money issue, or a "moral" issue??

In my group (in physics/cosmology), we don't necessarily release our codes, since they can often be used for more than one project, and we want to harvest the full fruits of our labor (and they are likely only of use to other academic scientists in any case). However, I would not share or reuse a code a student or post-doc of mine had worked on without discussing it with the person concerned, and I would expect my students to pay me the same courtesy once they move on (and so far they have).

My advice is to talk to your advisor and don't be an ass. Unless there really is money involved it is likely that no-one is trying to screw you. If the issue is academic credit, you should simply make sure that the project itself is described in a paper which will be cited by other users. And, if you can, release the source, with a good README since the academic world ran on "reputation" long before eBay was invented, and writing a widely used tool will do you no end of good.

what University? (0)

Anonymous Coward | more than 5 years ago | (#25971109)

A lot of Canadian Universities have policies whereby the University owns the IP, but then will sign it back to the inventors under certain circumstances, or set up a revenue sharing arrangement. What University are you at? Also, what is NSERC's policy? Is the lawyer you talked to in the tech transfer office? What does the Uni intend to do with the IP?

I am at U of T and have had very positive interactions with the tech transfer office (as opposed to some other parts of the U of T bureaucracy, which well deserve their "tar pit" reputation).

What "SOFTWARE RIGHTS"?!? (3, Funny)

mi (197448) | more than 5 years ago | (#25971125)

Do you believe in imaginary property or something? Information wants to be free, you know... New York County Lawyer will be helping your University (or whoever else gets a hold of your code) to dodge any and all legal challenges you may pursue — you wouldn't even know, who they are, because the University will bravely refuse your subpoenas against John (and Jane) Does.

Faculty rights (1)

93 Escort Wagon (326346) | more than 5 years ago | (#25971135)

If you've worked at a university for any length of time, you'd know that the reason faculty retain some (or all) rights to the products of their research is because they specifically negotiated that as part of their initial hiring agreement.

Otherwise, as others have mentioned, this is simply "work for hire" - and you don't have the rights to what you've produced, because they're paying you to do this.

rights (0)

Anonymous Coward | more than 5 years ago | (#25971139)

rights? you have no rights

ask for infinite license in exchange for copyright (1)

Khopesh (112447) | more than 5 years ago | (#25971149)

First and foremost, like all the other posts here, I'll tell you that you should not pursue legal advice from blogs like Slashdot. Even if people here claim to be lawyers, they likely are not, and even if they actually are, you are NOT being given legal advice (in the best case, you're getting their hasty first impressions).

Second: Such ownership rights are usually solidified upon employment by means of signing some kind of contract that agrees on who will own what. Without that, there may still be precedents for one way or another, but there may be enough ambiguity to work out a compromise that is favorable to all involved parties.

Offer to give them the copyright in exchange for an "non-exclusive infinite license" (that is not a legal term), effectively entitling you to use it outside the courtroom as if you had copyright, so you could sell licenses, GPL it, etc. If that's too strong (or more than you want), ask for a GPL, AGPL, or LGPL (the first two preserve the profitability of the copyright, since closed-source software is considerably more salable). They still get to use it however they like as the copyright holders, and your Free Software use probably won't get in their way anyway. If you think they'd be game for it, start the haggling in the other direction -- offer them the infinite license. If they take that, you'll probably have to include some kind of clause covering what happens if legal action is needed to protect it, as the copyright holder is the only party that can act on that (which is why the FSF requires copyright attribution for all GNU projects).

If you want FREE legal advice, you may be able to ask the Software Freedom Law Center (SFLC) for it at http://www.softwarefreedom.org/ [softwarefreedom.org]

It's a Work For Hire (1)

Teithron (1422615) | more than 5 years ago | (#25971155)

According to work for hire doctrine, if you are in their employ and make something having to do with the job, they own the copyright. In order to retain rights, you have to have that specifically stated in the contract--the assumption is that the employer gets all rights unless otherwise explicitly stated. It used to be that this would only really apply to stuff you did while at work and with the employer's equipment, but that's changing--these days, even if you do stuff on your own time, at home, with your own equipment, it's very likely that your employers will be able to claim ownership if it has anything to do with your work. So get it into your contract that you own the rights, but don't be surprised if your employers take issue with that and hire someone else instead.

publish the source (0)

Anonymous Coward | more than 5 years ago | (#25971169)

Better to beg forgiveness than to ask permission. Publish the source publicly, online. Universities shouldn't be holding any IP at all, anyway.

Solution? (0)

Anonymous Coward | more than 5 years ago | (#25971171)

Find a different career.

whee (5, Funny)

dissy (172727) | more than 5 years ago | (#25971181)

* Dissy puts on the lawyers hat

As your attorney, I advise you to rent a very fast car with no top. And you'll need the cocaine. Tape recorder for special music. Acapulco shirts. Get the hell out of L.A. for at least 48 hours.

* Dissy takes off the lawyer hat
* Dissy puts on his robe and wizards hat

Er wait...

First lesson (-1)

Anonymous Coward | more than 5 years ago | (#25971185)

Do what all engineers do, when cornered a great engineer will sign what they have to get by then renegotiate as the project goes along saying unhappy they are about the terms try once a week then move this to once a day toward the end and then finally hold the final code hostage until you get what you want? If you are really good you should be able to double your salary or payment by the end?

Then scream weeeeeeeeee! When you tell them to go fuck themselves, it will work! :-)

This is a familiar story (0)

Anonymous Coward | more than 5 years ago | (#25971213)

http://slashdot.org/article.pl?sid=01/04/09/1639212&mode=thread

Make sure you protect your own ass. And don't do anything stupid.

Having just gone through the NSERC process (4, Insightful)

Vamman (1156411) | more than 5 years ago | (#25971215)

I just went through the NSERC process for a PGS-D (PhD) scholarship and I was made aware of the different types of NSERC applications. First of all are you undergraduate or graduate? Do you work with a company as well? Was this developed as part of a thesis? Were you funded through some other source?

If you are a graduate with a typical NSERC then you are entitled to the rights of your software. However, the University can publish and distribute the software (not usually code) as they see fit. If you have another funding source (internal? dept? faculty? provincial?) then you may loose the right but not because of nserc. Some jokers say get a lawyer etc.... ya right easier said than done considering you are likely a poor sap. You are better off contacting your student union and getting your graduate student association involved. Get someone with a big mouth that will threaten to go on TV about it. Also go to the heads of department and talk about it. What does your supervisor say? Are you in a lab? It is odd that you post this in the end of the first semester if you were undergrad so I'd say you are graduate. Good luck.

May have to share ownership (0)

Anonymous Coward | more than 5 years ago | (#25971229)

Did you sign any contracts with them beforehand concerning IP? And if you didn't sign any contracts, did they inform you of your IP rights before you started to undertake the project? Did you use university resources (e.g., use school computers, talk to professors during working hours, etc.) while doing the project? Even if you were paid through an award and not directly, they can probably claim ownership if any part of the university was involved in its creation.

First and foremost IANAL (I cannot stress this enough!!!) My anecdotal evidence would suggest that (depending on how you answer these questions) you might be obliged to share ownership of the IP with the university. I say this because I am a university student who interned at a company. The internship was based on a school project and extended it. The company wanted to file a patent over it, and I think in the end the university and the company were both considered owners of the property (I was not involved in the legal proceedings so I really don't know much more than this). Other than having my name on the patent application, I probably won't get any other compensation :-p

As a side note, unless you're a professor, I don't see how the argument, "but the professors get to keep their IP" would apply.

IMNAL, but.... (1)

penguin_dance (536599) | more than 5 years ago | (#25971245)

Most companies (and I work contract) will have you sign something that, in effect, does the same thing, no matter if the intellectual property is software programming, technical writing or whatever. They may also, as a permanent employee, have you sign a non-compete clause to keep you from jumping over to a rival and transfer your current knowledge of the competitor for x number of years. You can either sign and get the job, try to negotiate and then choose or don't sign and walk. If you're really torn, it would not a bad idea to actually sit down with a contract lawyer and make sure you know exactly which rights you're about to sign away.

It's got to be a lot harder on software engineers. Because it's natural that you'd want to use you knowledge to create a similar program, either for another client or an improved version to sell commercially. And if you're in a particular industry, it would be hard not to come up with a similar program. The web pages and content I create, for example, are not going to be directly related--if I were to decide to write a novel. (The web material I create is not an issue as I'm normally using their template(s)/content server.) It's not like I'm freelancing a wholly-created web site only to have them decide to cut me out and take over maintenance. This can be done, but you want to make sure it's clear in the contract what the package includes, such as maintenance, copyright and that you're properly compensated.

Have you read the employment agreement? (3, Insightful)

CatOne (655161) | more than 5 years ago | (#25971251)

You must have signed something when you started the job... either for the University or for the company/agency you're working for that is under contract to the university. You should read it... as it's quite likely binding. If it states that they own the rights to whatever you produce while employed by them... it's _quite_ likely to hold up should it come to that.

This is somewhat like asking "Can I tell my wife to take a hike and give her nothing?" after you've been married for 45 years. The answer is more than likely "no." You should have known what you were getting into at the outset... after doing all the work subject to an employment contract isn't the best time to ask what your rights are or try to negotiate or open-source something. You can ask, but if they say no, that's pretty much the end of it. Unless you decide to say "screw it" and then steal or open-source the code... which could open you to criminal and civil liabilities.

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