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| Patent Group | |
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| Computer Software and Intellectual Property Law | ||
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Computer Software and Copyright12. Who Is the Author?Only the author has the right to assert the copyright. Generally, the author is the individual who reduced the idea, method, or process into a computer program. This author of the source code will normally claim and be entitled to title to the object code, the computer-generated work and, where appropriate, the expert system.Say that a friend of a programmer comes up with a great program and writes it out in a flow chart or pseudocode format for the programmer. The friend holds the copyright to the flow chart or pseudocode. However, the programmer alone will hold the copyright for the particular computer program that embodies the idea expressed by the flow chart or pseudocode of the friend. 12.1 Employees Are Not Authors12.2 An Independent Contractor Is Not an Employee12.3 Works by Employees of the U.S. Government Are in the Public Domain12.4 Joint Authorship12.1 Employees Are Not AuthorsUnder the "Work for Hire Doctrine" an employer or other person for whom the work was prepared is considered the author for purposes of copyright law.A Work for Hire is (1) a work prepared by an employee within the scope of his or her employment; or (2) a work specially ordered or commissioned if (a) it is used in one of certain types of work, and (b) if the parties expressly agree in a written instrument signed by them that the work is a work for hire. Therefore, if a Berkeley Lab (University of California) employee writes a computer program "within the scope of his or her employment" that program does not belong to the employee, but to his or her employer. In this case the employer is The Regents of The University of California. However, under Contract 05, the U.S. Government holds title to any software developed by the Berkeley Lab as a Government contractor, making DOE the technical employer of the programmer for the purposes of copyright protection. What this means is that the programmer does not have the bundle of rights described above. The programmer cannot market or even place a copyright notice on the program without permission of The University of California. The University of California under Contract 98, however, must obtain permission to assert copyright from DOE. Because DOE is the contractual owner of the program, it has the full legal right to determine how the program is used, whether it is marketed, and who may copy and use it. Contract 98 does give the Berkeley Lab the right to copy and use the computer program for "private" (i.e. non-commercial) purposes, subject to other provisions of the contract. As discussed in § 16 of this Guide, when permission is granted to Berkeley Lab by DOE to "assert" a copyright, the copyright and therefore title to the program passes to The Regents of the University of California, and The Regents become the legal author of the computer program. That is, at that point The Regents, through Berkeley Lab, own the computer program and control the copyright to it. However, in special circumstances the University of California can transfer ownership of the program to the programmer. This must be negotiated between the University of California and the programmer and a formal agreement executed. ![[Back to Top]](graphics/uparrow.gif)
12.2 An Independent Contractor Is Not an EmployeeIf a group within the Berkeley Lab has Procurement hire an independent contractor to write a computer program (or component of one), by law that contractor will have the right to petition DOE for the right to assert copyright in the work.If the University of California wants to retain the copyright to the computer program, the process also involves petitioning DOE for the right to assert copyright. (As of the writing of this report, July 1996, Berkeley Lab is revising its policy regarding copyright in software produced by independent contractors. Contact the Patent Department for current information. And see the answer to "I am working through an LBNL contract with a third party software developer; what special measures should I take to ensure the protection of LBNL intellectual property?") Under Contract 98, DOE requires that the University of California , or any agent of the University of California negotiating a subcontract with a third party, require that the party assign copyright and ownership rights to the Government as is required of the University . If the subcontractor refuses then DOE must be notified and a written authorization must be obtained from DOE before the subcontract can be executed.
12.3 Works by Employees of the U.S. Government Are in the Public DomainAny work created by an employee of the U.S. Government is in the public domain provided that it is created in that person's official capacity.However, since the Berkeley Lab is operated by the University of California on behalf of the Department of Energy, the University is considered an independent contractor of the Government. As employees at the Lab are employees of the University of California, computer programs written by these employees are considered works made for hire with copyright belonging to the University and not the un-copyrightable works of Government employees.
12.4 Joint AuthorshipMany times a program is written by more than one individual. As such, the contributors are considered joint authors. The key here is that each author has rights to the entire work. That is, each author may market the work without approval of the other authors. However, that author must account to the other authors for any profits obtained.*Written by John E. Wehrli, formerly of the Patent Department, Lawrence Berkeley National Laboratory. Available as LBL Report No. 38995. |
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