Who owns what on   website?

Did you know that April 26th is Intellectual Property Day?  I checked in Hallmark but couldn’t find any cards.  So as I can’t send a card, I thought I would do a blog entry.

Designers and software engineers have different approaches, it’s that left brain – right brain thing.  But we have one thing in common: what we produce is intangible, it exists in computer files, not the real world. The legal term for this is Intellectual Property (IP), and the rules for ownership of IP are different from real property.   

Before I go any more into this particular legal swamp I must point out that I am not a lawyer and cannot give legal advice.  If in doubt talk to a lawyer who specialises in IP work.

Who owns The IP for a website?  If the client paid for it, they must own it.  So the answer is easy, right?

Wrong. If you buy a car you don’t own the design of the carburetor and if you start producing copies you will be in trouble.  It is the same with software; if I buy Photoshop, all I really own is the disk it came on.  The software is still owned by Adobe.  I can use it because Adobe licence me to use it. This matters because the licence will impose restrictions on how I can use it.  I can’t copy it for a few friends for example. 

The ownership of the website IP is determined by the contracts between the various parties.  A subcontractor (such as us) will have a contract with the designer, which will be neatly co-ordinated with the contract between the designer and the customer.  These contracts will make the IP rights clear to everyone and there will be no arguments. 

Or not. 

The content management and ecommerce software (our stuff)

The software may be proprietary (like ours) or open source.  Either way the client will never own the IP but will be given a licence to use it. The open source community has a number of standard licences which are available on the web.  We have our own Terms and Conditions, including licence terms.   Our licence allows the client to modify the software, copy it, run it on an alternate server, in fact pretty much anything except bootleg it.  Open source licences allow for the product to be copied and modified, but places restrictions on those modifications to ensure the licence is retained. 

If the client asks for the IP (which has happened more than once) the answer is always “no-siree”.  The project is very unlikely to use brand new software as we use the same software for all our clients.  So we can’t give the IP to one of the clients and stay in business.  Period. This is always a non-starter. 

Startup companies in particular have a hard time with this.  They perceive that when they come to make their millions by selling up, the due diligence process will question their non-ownership of the software IP, which may be their market advantage. This is a valid argument, and our licence terms now give the IP for any custom-developed software to the client. This is software we won’t be using on other sites.  It is the best we can do.

The creative

The creative work is unique to the website.  You won’t be reusing it for any other clients, so the same considerations don’t apply.  Nevertheless the norm in the industry is for the designer to retain the IP. 

Whereas software engineers are mere tradesmen whose value is measured in days of work, creative work can’t be measured in mere days.  Picasso could create a masterpiece in seconds, whereas a lesser artist may slave for months to produce something of remotely the same value.

Suppose you create a packaging design for a minor product to be sold in specialty shops. You might charge a modest fee. However if that same design is then re-used for a product on every supermarket shelf you may feel that its value has increased greatly and additional recompense is required. 

So a designer will also wish to retain control over his/her product by retaining the IP; however unlike the programmer the IP can have a price.  You won’t be put out of business by losing the IP.

The content

The website will include client branding, text uploaded by the client, stock photographs and so on.  Neither the designer or software engineer has any interest in this except for protection if the customer uploads something that they don’t own or have a licence to use (such as a stock photograph). 

Terms and conditions – what terms and conditions?

Now here is the thing.  We licence our software to our client (the designer) and allow the designer to sublicence it to their customer.  However if their terms and conditions do not reflect our licence conditions, we could end up with a problem. 

Most designers terms and conditions have this sort of line (which I think is the bare minimum required,

“Intellectual Property rights to photos, graphics, source code, work-up files, and computer programs are not transferred to the Client, and remain the property of their respective owners.”

However if the client, who has paid for the work decides to bootleg the software and use it on other websites we could get into difficulties because the terms and conditions don’t really address the conditions of the licence.   So please think about these issues when next reviewing your terms and conditions.

There is a government IP website at http://www.ipo.gov.uk which has a lot of useful information.

The Intellectual Property Lawyers Association is at http://www.ipla.org.uk