88
In fact, he is free to duplicate the work with anyone else, without the fear of stepping
on anyone’s toes, nay Websites. Leaving matters concerning ownership of intellectual
property ambiguous and nebulous can not only make you end up with a “me-too” Web
site, it could also ruin your chances with the Venture Capitalist you are trying to woo
for your venture. VCs, by all accounts, are wary of companies that are incapable
of demonstrating clear titles to trade secrets, copyrights and patents.
According to the “Copyright Law,” ownerships rest initially with the
“
author” of a work; that is, with the person who takes an idea from
the drawing board and converts it into a real, tangible thing. However,
exceptions do exist.
Courts do grant copyright to employers for work that they “commissioned” or “hired
out.” There are two distinct ways to create “work for hire.” The first is for an employee
to create a work within the scope of his or her employment. The second relates to
hiring a party especially for ordering or commissioning a work falling within certain
specified categories, and for the parties to agree in writing that the work is for hire.
One thing is clear. Merely paying someone does not entitle a company to own the
copyright to that work. Employers should be aware of the following determining factors.
First, how the information about the “pay” is reported to the income tax department.
If it is self-employed income, the person is the rightful owner of his work. Secondly,
when deciding on employment, courts also check to see whether a company is paying
benefits to the creator of the intellectual wealth. If he’s not on the rolls and doesn’t
get additional perks such as an employee Provident Fund, or Medical reimbursement,
or leave-travel allowance (LTA), he is not an employee. The final factor is salary. If the
person does not receive regular payments,he is considered an independent
consultant.
The fact is, a signed written contract, clearly states and defines
the employment status, leaving no room for doubt. The contracts
that you make should include and clearly state who owns the
rights to the finished products. The most significant thing to remember when drafting
the agreement is to cover all the rights for use on the Internet and all other media.
Classifying a work as “made for hire” determines several features of the copyright,
including its initial ownership, its duration and the owner’s renewal rights. Any work
you solicit or commission should be covered by a written agreement that details the
expectations of all the parties involved even if those include friends. Beware of people,
who are experts in making copyright as their “Right to copy.”
n
Any work you solicit or commission
should be covered by a
written agreement that details
the expectations of all the
parties involved.
