Many businesses outsource the development of their software to independent specialists. Whilst very often great care and attention is given to preparing and agreeing a software specification and the price or cost of the works to be undertaken. It frequently transpires that there are no other written terms of the agreement in existence.
This can lead to many legal problems but one of which the non-lawyer may not be aware is that, in the absence of a formal assignment in writing, ownership of the copyright in the resulting program will automatically be vested in the “author” of the program. The “author” is the person who “creates” or writes the software and that person’s copyright will not expire until 70 years after his/her death! The Copyright and Related Rights Act 2000 (“CRRA 2000”) incorporates the foregoing principles and also contains a definition of what are described as “acts restricted by copyright”. These acts include a restriction by anyone other than the copyright owner, who has the exclusive right, from :
- coping the program and/or;
- adapting the program.
Such restrictions could have very serious fiscal consequences for the user or “would be” owner of the software. The CRRA 2000 specifically provides that to be effective, a transfer or assignment of copyright must be in writing and signed by or on behalf of the owner. A properly drafted Software Development Contract should therefore contain a form of assignment of copyright consistent with the requirements of the legislation. Failure to address this issue at the very outset can give rise to very expensive and time consuming disputes and may lead to litigation.
Readers should also be aware that the CRRA 2000 provides not only that infringement of copyright is actionable by the owner for damages and for appropriate injunctive relief where necessary but that such an infringement may also constitute a criminal offence punishable on summary conviction by a fine of up to €1,905.00 and or 12 months imprisonment or, on conviction on indictment, to a fine of up to €127,000 and or 5 years imprisonment. Not to be taken lightly! Companies, partnership and individuals can all be the subject of a wide range of legal proceedings all of which could be avoided by taking timely legal advice in advance of concluding a contract.
An important point to note is that the CRRA 2000 clearly distinguishes the position of an employee who writes software in the course of “employment” from that and an independent contractor. In the former case the employer is the first owner of the copyright. In such circumstances however it would be prudent for the contract of employment to contain an appropriately worded clause to cover this point for the avoidance of any doubt.
For further information and advice in relation to “Who owns the copyright in your computer software programs”, please contact Deirdre Farrell, partner, Amorys Solicitors email@example.com, telephone 01 213 5940 or your usual contact at Amorys.